Jammu & Kashmir High Court

Irshad Ahmed &Ors vs Rafiya Parveen on 14 October, 2024

Author: Vinod Chatterji Koul

Bench: Vinod Chatterji Koul

                                           Sr. No. 35
      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

CM(M) No. 134/2024

Irshad Ahmed &ors.                               .... Petitioner/Appellant(s)

                        Through:-    Mr. Achal Sharma, Advocate

                  V/s

Rafiya Parveen                                           .....Respondent(s)

                        Through:-    Mr. Zulker Nain Sheikh, Advocate

CORAM :     HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                    ORDER

14.10.2024

01. Setting-aside of the order dated 20.01.2024 passed by Chief Judicial

Magistrate, Doda (for short "court below") in a Transfer Application filed by

Rafiya Parveen (respondent herein) titled as Rafiya Parveen versus Irshad

Ahmed and ors. whereby petition pending before Judicial Magistrate First

Class Gandhoh, filed by the respondent, has been transferred from the court

of learned Judicial Magistrate 1st Class,Gandhoh to the court of learned

District Mobile Magistrate, Doda, is being sought by petitioners through the

medium of instant petition.

02. Impugned order is being challenged by petitioners precisely on the

grounds that the same is bad both in law and facts; that order impugned has

been passed by court below without having jurisdiction; that the plea taken

by respondent that the court might have been influenced is highly

condemnable and contemptuous as the said allegation is without any

cogent/significant proof nor such plea is substantiated; that the grounds on

which transfer was sought are not valid; that respondent has raised doubt

about majesty of the court of law without any proof; that petitioners as well

as respondent are residents of and are residing at Gandhoh; that there was

never any threat to respondent; that a number of cases has been filed by

respondent to harass petitioners; that had respondent been threatened as

alleged by her in the application seeking transfer, she would have filed a

complaint.

03. Learned counsel for the petitioners submits that the petitioners are not

in a position to travel the distance of 74 kms to attend the cases at Doda. On

the aforesaid grounds and law referred to above, the petitioners seek setting-

aside of the impugned orderpassed by the Trial Court which amounts to

abuse of process of law and also amounts to miscarriage of justice and to

achieve ends of justice and to prevent the respondents from harassment and

inconvenience, the order is required to be set-aside.

04. Keeping the case at the court of Gandhoh will not cause any

inconvenience to the respondent, because she is residing at Gandhoh and in

case, she had any threat, she can approach to the competent Court at

Gandhoh has well as the Police, is the vehement contention of petitioners.

They would also urge that neither they have extended any threat nor have

they influenced any of the witnesses as alleged.

05. Record of the Trial Court would reveal that the application on which

the order impugned has been passed alleges that petitioners always threat

respondent as well as her witnesses of dire consequences, with a further

submission that the fact of threats was brought to the notice of the Court but

no action was taken, therefore, she had apprehension that non-applicants

(petitioners herein) might have influenced the Court at Gandhoh. In support

of such pleas, no cogent and material reason is coming to fore nor the

allegations are substantiated. Had there been any threat to respondent, she

would have either made a complaint to police or to the Magistrate. A vague

allegation is made that the facts of threat were brought to the notice of the

Magistrate but no action was taken. The Magistrate in his para-wise reply

has denied about the said pleas taken by the petitioners. The respondent

herself has filed an application before the court of Judicial Magistrate First

Class Bhalessa, Gandhoh, wherein she has alleged domestic violence at the

hands of the petitioners herein. The respondent, as is evident from the

addresses given in the complaint, is residing at Bhalessa Gandhoh and is

presently residing at Changa, Tehsil Bhalessa, Gandhoh.

06. Learned counsel for the petitioners has relied upon a judgment of the

Supreme Court passed in Transfer Petition (C) Nos. 2331-2334 of 2021,

titled as Anupam Ghosh & anr. Vs. Faiz Mohammad and Ors, decided on

02.09.2022 and reported as 2022 Live Law (SC) 751, in which it has been

held as under:-

"One of the grounds on which the proceedings are sought to be transferred is that the petitioners believe that they are not getting a fair trial and the respondents being local bigwigs are able to influence the local Court. We deprecate such a stand and the ground on which the proceedings are sought to be transferred. Merely because some Orders are passed on judicial side (in the present case in the execution proceedings) which may be against the petitioners, it cannot besaid that the Court, which passed the order was influenced. If the petitioners are aggrieved by any judicial order, the proper remedy would be to challenge the same before higher forum. But merely because some orders adverse to them are passed by the Court, it cannot be said that the orders on judicial side are passed under influence. Nowadays, there is a tendency to

make such allegations against the judicial Officers wheneverthe orders are passed against a litigant and the orders are not liked by the concerned litigant. We deprecate such a practice. If such a practice is continued, it will ultimately demoralize the judicial officer. In fact, such an allegation can be said to be obstructing the administration of justice."

07. The Supreme Court has deprecated the practice of making allegation

judicial officer so as to seek transfer of a case. It has held that prayer for

seeking transfer and making allegation against the judicial officer, is a trend

now-a-days and it is required to be deprecated. The Supreme Court has ruled

that if such a practice is continued, it will ultimately demoralize the judicial

officers. In fact such an allegation can be said to be obstructing the

administration of justice and dismissed the transfer petition. The Supreme

Court also held that merely because some orders adverse to petitioner were

passed by the Court, it could not be said that the orders on judicial side were

passed under influence and that if petitioners were aggrieved by any judicial

order, the proper remedy would be to challenge the same before the higher

forum.

08. The Allahabad High Court in the case titled Hari Sinqh V/s Shyam

Bihari and 20 others Transfer Application (Civil) No. 810 of 2022 decided

on 22.11.2022, has observed as under:

"There is not the slightest tangible evidence or material to support the allegation under consideration, which has, of late, become almost a patent and routine allegation that any litigant may come up with against a Judge in the subordinate Courts whom he does not wish to decide his case,or otherwise, delay proceedings, or for some othertactical reason. In fact, the allegation is so preposterous that it is only stated to be rejected. The other facet of the matter is that making of such unscrupulous and irresponsible allegations by a litigant is the reflection of a bigger trend in society, where the citizens from all walks of

life have developed an outlook, where they think that a Judge is an easy target, and that they can malign the Judges' reputation, alleging anything against them, particularly, the Presiding Officers in subordinate Courts. This tendency is reflected in the complaints that galore on the administrative side of this Court and in transfer applications brought on the most irresponsible allegations, derided of any substance or material. The impact of such transfer applications, if entertained and the Presiding Officer asked to put in his comments will demoralize the subordinate judiciary. The society, in general, is always conscious of keeping up them orale of the Armed Forces and the Police, but think small of the Judges, from whom they expect justice. This cannot be permitted to happen. The litigants, who indulge in these kinds of misadventures, have to be discouraged with a heavy hand.

09. In the present case it is not the case of respondent that she has to

attend the Court at Gandhoh and the said court is far away from the Court at

Doda; otherwise, as a matter of fact, it is the Court at Doda which is away

from the Court of Gandhoh.

10. I have gone through the application of respondent. No sufficient

reason has been given by her in her application nor the Magistrate while

allowing the application has given any reason which satisfied him that the

case is required to be transferred from the Court of JMIC Gandhoh to the

District Mobile Magistrate Doda. The grounds taken in the application by

respondent seeking transfer are vague and on such grounds the transfer of

the case from one Court to another Court is not warranted. The respondent

has in her application raised irresponsible and unscrupulous allegations to