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2012 DIGILAW 1388 (PAT)

Aman Gupta v. State of Bihar

2012-09-28

BIRENDRA PRASAD VERMA

body2012
ORDER The petitioners have approached this Court under Section 407 of the Code of Criminal Procedure, 1973 ( for short ‘Cr.P.C.’), seeking transfer of Kotwali ( Tilkamanjhi) P.S.Case No. 124 of 2011 dated 6.3.2011, registered under Sections 498A, 406,420,323,120B/34 of the Indian penal Code as also under Sections 3 /4 of the Dowry Prohibition Act, corresponding to G.R. No. 566 of 2011, pending in the court of learned Sub-Divisional Judicial Magistrate, Bhagalpur, from the aforesaid criminal Court at Bhagalpur to any competent criminal court at Patna, within Patna Sessions Division. 2. It is admitted case of the parties that marriage between petitioner no.1 and the opposite party no.2 was solemnized on 4th July, 2010. Petitioner no.2 is the father and petitioner no.3 is the mother of petitioner no.1 of the present application. Unfortunately, the matrimonial relationship between petitioner no.1 and the opposite party no.2 became strained only after few months of their marriage. 3. In the aforesaid factual backdrop, petitioner no.1 filed H.M.A Case No. 5 of 2011 (Aman Gupta Vs. Pallavi Modi Gupta), before the learned Principal Judge, Family Court, Rohini, Delhi, making certain allegations against the opposite party no.2 and seeking an appropriate relief enumerated in the petition filed on behalf of the petitioner no.1. The aforesaid H.M.A. Case No. 5 of 2011 was subsequently transferred to the court of learned Additional Principal Judge, Family Court, Rohini, Delhi for disposal in accordance with law. 4. It appears that while the aforesaid matrimonial case was pending at Delhi, the opposite party no.2 submitted a written report to the Senior Superintendent of police, Bhagalpur, making allegations of demand of dowry, torture, criminal breach of trust, etc. against her husband ( petitioner no.1) and her parents-in-law( petitioner Nos. 2 and 3). On the basis of the aforesaid written report, Kotwali (Tilkamanjhi) P.S.Case No. 124 of 2011 dated 6.3.2011 was registered against the accused persons, who are petitioners in the present application, and investigation was taken up. It is also admitted case of the parties that on close of investigation, Police submitted charge sheet against the petitioners on 20.10.2011 for offences sunder Sections 498A,406/34 of the Indian Penal Code as also under Sections 3 /4 of the Dowry Prohibition Act. It is also admitted case of the parties that on close of investigation, Police submitted charge sheet against the petitioners on 20.10.2011 for offences sunder Sections 498A,406/34 of the Indian Penal Code as also under Sections 3 /4 of the Dowry Prohibition Act. By an order dated 21.10.2011, the learned Chief Judicial Magistrate, Bhagalpur has taken cognizance in the aforesaid criminal case for offences under Sections 498A,406/34 of the Indian Penal Code and Section 3 /4 of the Dowry Prohibition Act and the case has been transferred to the court of learned Sub-Divisional Judicial Magistrate, Bhagalpur for trial and disposal. Summonses were ordered to be issued against the accused persons for their appearance. 5. In the meantime, the opposite party no.2 approached the Hon’ble Apex Court by filing Transfer petition (Civil) No. 391 of 2011 seeking transfer of H.M.A. case No. 5 of 2011 filed by petitioner no.1 against the opposite party no.2, which was pending for decision in the court of learned Additional Principal Judge, Family Court, Rohini, Delhi to the Family Court, Bhagalpur. In the aforesaid transfer petition, petitioner no.1, who was impleaded as respondent, entered appearance and filed a detailed counter affidavit resisting the prayer made in the aforesaid transfer petition. The Hon’ble Apex Court, after hearing the parties and on consideration of materials produced by them, by an order dated 14th November, 2011 transferred the aforesaid Matrimonial case from the court of Additional Principal Judge, Family Court, Rohini, Delhi, to the Family Court, Patna (Bihar). 6. Learned Senior counsel appearing on behalf of the petitioners has submitted that in view of order passed by the Hon’ble Apex Court transferring the Matrimonial case filed by petitioner no.1 from the Family Court, Rohini, Delhi to the Family Court, Patna (Bihar), the parties as also the witnesses are required to appear before the Family Court at Patna for disposal of the aforesaid Matrimonial case. It is also contended that the material witnesses in the aforesaid Matrimonial case as also in the criminal case filed by the opposite party no.2 are by and large same and common. Therefore, according to the learned senior counsel, for the convenience of the parties and also for the ends of justice, the present criminal case filed by the opposite party no.2, is fit to be transferred from criminal court at Bhagalpur to a criminal court of competent jurisdiction at Patna. Therefore, according to the learned senior counsel, for the convenience of the parties and also for the ends of justice, the present criminal case filed by the opposite party no.2, is fit to be transferred from criminal court at Bhagalpur to a criminal court of competent jurisdiction at Patna. It has also been pleaded on behalf of the petitioners that in connection with the criminal case filed by the opposite party no.2, the petitioner had appeared before the learned Sessions Judge, Bhagalpur on 23.5.2011 in compliance of the direction issued by the learned Sessions Judge, Bhgalpur for the purposes of consideration of their anticipatory bail application filed under Section 438 Cr.P.C. and the matter was adjourned to 24.5.2011. According to the petitioners, while they were still at Bhagalpur, the opposite party no.2 with the help of her supporters not only surrounded and humiliated them, but also hurled threats of dire consequences. According to learned Senior counsel, the atmosphere at Bhagalpur is not very congenial for fair and impartial trial of the criminal case lodged by the opposite party no.2. 7. Learned counsel appearing on behalf of the opposite party no.2 has strongly opposed the prayer made in this application. According to him, the petitioners have not shown any valid cause for transfer of the aforesaid criminal from the criminal court at Bhagalpur to the criminal court at Patna. It is urged that if the petitioners have any apprehension of their security or safety, then they can approach either to the court at Bhagalpur for issuance of an appropriate direction or they can approach high police officials for providing them adequate security. 8. At this place, it would be relevant to mention that when this matter was taken up for consideration on 17.7.2012, then this Court had issued a direction for physical appearance of the petitioner no.1 as also the opposite party no.2 on 28.8.2012, so that an endeavour is made for amicable resolution of matrimonial disputes between them. In compliance of the aforesaid order, petitioner no.1 and the opposite party no.2 had appeared before this Court on 28.8.2012 and an effort was made for amicable resolution of entire dispute between the husband and wife. In order to facilitate further negotiations between the parties for amicable resolution of the entire dispute, the matter was adjourned for 29.8.2012. In compliance of the aforesaid order, petitioner no.1 and the opposite party no.2 had appeared before this Court on 28.8.2012 and an effort was made for amicable resolution of entire dispute between the husband and wife. In order to facilitate further negotiations between the parties for amicable resolution of the entire dispute, the matter was adjourned for 29.8.2012. Unfortunately, learned counsel appearing on behalf of the petitioners as also the opposite party no.2 reported to this Court on 29.8.2012 that despite their best efforts the dispute between petitioner no.1 and the opposite party no.2 could not be resolved, and, thereafter, the matter was adjourned for decision of the present case on merit. 9. After having heard the parties at great length, this Court is of the opinion that the issues raised in the Matrimonial Suit filed on behalf of petitioner no.1 against the opposite party no.2 as also the issues raised in the criminal case filed by the opposite party no.2 against the present petitioners, largely and basically, are with respect to the matrimonial dispute between petitioner no.1 and the opposite party no.2. Admittedly, marriage between the petitioner no.1 and the opposite party no.2 was solemnized on 4th July, 2010 and hardly two years have elapsed after the aforesaid marriage. In the eye of law, even today the petitioner no.1 and the opposite party no.2 are legally wedded husband and wife respectively, though they are living separately for quite long time. Both of them appear to be well-educated persons. Both of them are still young and are required to go a long way in their lives. The matrimonial case filed by petitioner no.1 and the criminal case lodged by the opposite no.2 still may require some reasonable time for their final disposal, as it has been reported by the parties that evidence has not commenced in the matrimonial case filed by petitioner no.1 and charge has not been framed in the criminal case filed by the opposite party no.2. Time is a great healing factor. One should not lose hopes, while the matter is still pending, that good sense may still prevail and petitioner no.1 and the opposite party no.2 may come to terms and resolve their dispute amicably. 10. Admittedly, In view of the order of Hon’ble Apex Court the matrimonial suit filed by petitioner no.1 is required to be tried by Family Court at Patna. 10. Admittedly, In view of the order of Hon’ble Apex Court the matrimonial suit filed by petitioner no.1 is required to be tried by Family Court at Patna. The petitioners are required to appear in that case as witnesses. The opposite party no.2 and her family members/relations may also be required to appear in that matrimonial case as witnesses. If the criminal case filed by the opposite party no.2 is also transferred to a criminal court at Patna under Patna Sessions Division, it would be convenient for the parties to contest the matter at one place. It may be convenient for the witnesses also. The apprehension of the petitioners of their safety ad security at Bhagalpur shall also be excluded, if the criminal case is tried at Patna. Learned Public Prosecutor appearing on behalf of the State of Bihar has very fairly submitted that official witnesses will have no problem in appearing in the aforesaid criminal case lodged by the opposite party no.2 at Patna. 11. Taking into consideration the totality of circumstances, this Court is of the considered opinion that for the ends of justice the matrimonial case filed by petitioner no.1 and criminal case lodged by the opposite party no.2 should be tried and decided at Patna, particularly in view of the direction issued by the Hon’ble Supreme Court transferring the matrimonial case from Delhi to Patna. 12. In the result, the present application stands allowed. Kotwali (Tilkamanjhi) P.S.Case No. 124 of 2011 dated 6.3.2011, pending in the court of learned Sub-Divisional Judicial Magistrate, Bhagalpur, is directed to be transferred from Bhagalpur to a criminal court at Patna under Patna Sessions Division. The learned Sub-Divisional Judicial Magistrate, Bhagalpur is directed to transfer the records of aforesaid criminal case to the learned District and Sessions Judge, Patna, who on receipt of the records is directed to assign the aforesaid criminal case either to the learned Chief Judicial Magistrate, Patna, or to any other criminal court of competent jurisdiction. The learned District and Sessions Judge, Bhagalpur and the learned District and Sessions Judge, Patna shall ensure strict compliance of this order within a period of one month from the date of receipt/production of a copy of this order.