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2015 DIGILAW 203 (GAU)

Anjali Das v. Swapan Kumar Das

2015-02-19

PRASANTA KUMAR SAIKIA

body2015
Judgment Prasanta Kumar Saikia, J. 1. This proceeding under section 407 of the Code of Criminal Procedure, 1973 is instituted seeking transfer of Case No. 347c/2011 under section 12 read with section 18/19/20/22 and 23 for protection of Women From Domestic Violence Act, 2005 (in short the Act, 2005) from the court of learned Sub Divisional Judicial Magistrate (Sadar), Dibrugarh to any other court at Jorhat having jurisdiction to enquire and try the same. I have heard Mr. D. Chakraborty, learned counsel appearing for the petitioner as well as Mr. S. Dutta, learned senior counsel assisted by Mr. S. Dutta, learned counsel appearing for the respondents. 2. The brief facts necessary for disposal of the proceeding are that the petitioner herein was married to respondent No. 1 Shri Swapan Kumar Das long back and they were blessed with two daughters. The elder one was married off to a suitable boy whereas her younger one has still been pursuing her higher studies. 3. According to the learned counsel for the petitioner herein, everything was fine till January, 2011. However, in January, 2011 the petitioner received a call on her mobile phone from Dualijan Police Station asking her to come to such police station immediately. Being so informed, she immediately went to Duliajan Police Station and came to know that her husband (respondent No. 1) was found with respondent No. 2 in this proceeding in compromising position for which they were taken to the police station. 4. Since respondent No. 1 was her husband and since she had love and affection towards him, she secured his release standing bailor for him in connection with the case, so initiated against the respondents herein for the aforementioned incident. It has been stated that she secured the release of her husband on bail on the expectation that the respondent No. 1 would cut off all his relationship with the respondent No. 2. 5. She also secured the release of her husband from custody in order to save her marriage from running into trouble. However, such expectation soon got shattered since respondent No. 1 started maintaining illicit relationship with respondent No. 2 even thereafter as before. 6. 5. She also secured the release of her husband from custody in order to save her marriage from running into trouble. However, such expectation soon got shattered since respondent No. 1 started maintaining illicit relationship with respondent No. 2 even thereafter as before. 6. What is worse is that owing to such relationship, respondent No. 1 along with respondent No. 2 started torturing the petitioner both mentally and physically which culminated on 15.02.2011 when respondent No. 1 drove the petitioner out of his house compelling her and her young daughter to take shelter in the house of her relative at Duliajan. 7. In the meantime, respondent No. 1 left for Calcutta and started residing there for few months. However, he neglected to maintain his wife and his unmarried young daughter without there being any rhyme and reason. Even thereafter, the petitioner tried to live with her husband and in that connection, she and her daughter went to his house and tried then-best to convince the respondent No. 1 to allow them to live with him. 8. However, instead of being grateful for doing so much to the respondent No. 1 and instead of realising his own fault, her husband tortured her brutally and forced her to leave his house for which the petitioner was forced to lodge an FIR with Officer In-charge, Duliajan Police Station on the basis of which Duliajan Police Station Case No. 236/2011 under section 498(A) IPC was registered. 9. Since the respondent No. 1 was not maintaining his wife/petitioner since petitioner No. 1 is not in a position to maintain herself, much less her maintaining her daughter, the later had to abandon her further studies and was forced to return home. 10. In such a hopeless situation, the petitioner, having no other option, was forced to file a complaint case under section 12 the Act 2005 in the court of Chief Judicial Magistrate, Dibrugarh which was registered as Complaint Case No. 347c/2011. 11. In the meantime, she came to her paternal house at Mariani in the district of Jorhat since it was not possible for her and for her daughter to stay back at Duliajan without being supported by the respondent No. 1 and started living there along with her daughter under the shelter provided by her brother. 12. 11. In the meantime, she came to her paternal house at Mariani in the district of Jorhat since it was not possible for her and for her daughter to stay back at Duliajan without being supported by the respondent No. 1 and started living there along with her daughter under the shelter provided by her brother. 12. The petitioner further submits that she is an old lady of about 60 years of age suffering from several old age ailments including Ostio arthritis etc and as such, she is unable to travel to Dibrugarh to pursue her case. More importantly, such predicaments get compounded many times for her horrible financial condition. All these make it impossible for her to go to Dibrugarh for the purpose of pursuing her case there. She, therefore, approaches this Court with an application under section 407 Cr.P.C. seeking transfer of the case as aforesaid from Dibrugarh to Jorhat. 13. On being served notice, the respondents have entered appearance and contested the same stating that the petitioner could not make out a case requiring this Court to transfer the case No. 347c/2011, now, pending in the court of learned Sub-Divisional Judicial Magistrate, Dibrugarh to any court at Jorhat having jurisdiction over the matter. 14. In that connection, it has been pointed out that the aforesaid case was lodged at Dibrugarh, not by the respondent No. 1 but the petitioner herself. Being so, very foundation of her prayer seeking transfer of the aforesaid case from the court of learned Sub-Divisional Judicial Magistrate, Dibrugarh to any court at Jorhat is found to be without any basis. 15. Mr. S. Dutta, learned senior counsel appearing for the respondents further submits that the contention that the petitioner is an old lady, that she is financially unsound and that she has been suffering from several old age ailments are without any basis. Even on assuming that she suffers from aforesaid disadvantages, such disadvantages cannot require this Court to transfer her case from learned Sub-Divisional Judicial Magistrate, Dibrugarh to any court at Jorhat. 16. In support of this contention, Mr. S. Dutta, learned senior counsel appearing for the respondents referred to the decisions of Hon'ble Apex Court in the cases of Maneka Sanjay Gandhi v. Rani Jethmalani reported in (1979) 4 SCC 167 . The relevant part is reproduced below: "2. 16. In support of this contention, Mr. S. Dutta, learned senior counsel appearing for the respondents referred to the decisions of Hon'ble Apex Court in the cases of Maneka Sanjay Gandhi v. Rani Jethmalani reported in (1979) 4 SCC 167 . The relevant part is reproduced below: "2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hyperscnahivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may b e myriad and vary from case to case. We have to lest the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate when the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances. 5. A more serious ground which disturbs us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that court proceedings are bring disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of court is obstructive of the course of justice and must surely be stamped out. Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet and concern to a Court of justice if a person seeking justice is unable to appear present one's case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquillity at the trial. It causes disquiet and concern to a Court of justice if a person seeking justice is unable to appear present one's case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquillity at the trial. Turbulent conditions putting the accused's life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer. In a decision cited by the counsel for the petitioner, Mr. Bose, J, observed: ...But we do feel that good grounds for transfer from Jashpur-nagar are made out because of the bitterness of local communal feeling and the tenseness of the atmosphere there. Public confidence in the fairness of trial held in such an atmosphere would be seriously undermined, particularly among reasonable Christians all over India not because the Judge was unfair or biased out because the machinery of justice is not geared to work in the midst of such conditions. The calm detached atmosphere of a fair and impartial judicial trial would be wanting, and even if justice were done it would not be 'seen to be done'." 17. According to Sr. learned counsel appearing for the respondents, while considering an application U/s. 407 of the Cr.P.C., Court needs to keep in mind the law which governs the places/places where ordinarily the criminal case/cases are to be initiated since such arrangements are made keeping in view host of factors including the convenience of the parties as well as witnesses. In support of such contention, the decision in Sunita Kumari Kashyap v. State of Bihar & Anr. reported in (2011) 11 SCC 301 is relied on. The relevant part is reproduced below: "We have already adverted to the details made by the appellant in the complaint. In support of such contention, the decision in Sunita Kumari Kashyap v. State of Bihar & Anr. reported in (2011) 11 SCC 301 is relied on. The relevant part is reproduced below: "We have already adverted to the details made by the appellant in the complaint. In view of the specific assertion by the appellant wife about the ill-treatment and cruelty at the hands of the husband and his relatives at Ranchi and of the fact that because of their action, she was taken to her parental home at Gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry, we hold that in view of Sections 178 and 179 of the Code, the offence in this case was a continuing one having been committed in more local areas and one of the local areas being Gaya, the learned Magistrate at Gaya has jurisdiction to proceed with the criminal case instituted therein. In other words, as the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment and ill-treatment meted out to the complainant, clause (c) of Section 178 is attracted. Further, from the allegations in the complaint, it appears to us that it is a continuing offence of ill-treatment and humiliation meted out to the appellant at the hands of all the accused persons and in such continuing offence, on some occasions all had taken part and on other occasions one of the accused, namely, the husband had taken part, therefore, undoubtedly clause (c) of Section 178 of the Code is clearly attracted." 18. It is also the case of the respondent that section 27 of the Act, 2005, amongst other things, allows an aggrieved party to file a case where the aggrieved party temporarily resides. For ready reference, section 27 of the Act, 2005 is reproduced below: "27. Jurisdiction.- (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which- a) the person aggrieved permanently or temporarily resides or carries on business (sic) employed: of (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act. (2) Any order made this Act shall be enforceable throughout India." 19. Since the petitioner now temporarily resides at Mariani in the district of Jorhat, she can very well file the case afresh before the learned Chief Judicial Magistrate, Jorhat seeking the relief provided under the Act, 2005. Since the petitioner can legally file a case at Jorhat in terms of section 27 of the Act, 2005, on this count also the present proceeding is liable to be dismissed. 20. Learned counsel appearing for the petitioner submits that old age, financial difficulties and ailments are some important criteria which needs to be considered when a prayer is made seeking transfer of case from one court to the other. He further submits that such an approach has been approved by the schemes incorporated in section 407(1)(c) of the Cr.P.C. Section 407(1)(c) of the Cr.P.C. states that a case is to be transferred from one place to other, if such transfer tends to general convenience of the parties or witnesses thereto. 21. In that connection, the decision of the Bombay High Court, Aurangabad Bench in the case of Sow. Saraswatibai Parle v. Mokinda Parle reported in 2006 STPL (LE-Crim) 25832 is relied on. The relevant part is re-produced below: "5. The present criminal application is filed by the applicant under Section 407 of the Code of Criminal Procedure. Undisputedly it is a matrimonial dispute between the husband and wife. According to the applicant-wife, she is residing with her mother and brother who are at present residing at Aurangabad. It is inconvenient and hazardous to the applicant-wife to attend various proceedings for recovery of the amount of maintenance and application for enhancement of allowance of maintenance under Section 127 of the Code of Criminal Procedure, pending in me Court of the learned Judicial Magistrate, First Class, Gangakhed. Power vested with this Court under Section 407 of the Code of Criminal Procedure, is resorted to. In my view, it is a case of sub-clause (c) of sub-section (1) of Section 407 of the Code of Criminal Procedure, which alone is extracted and reproduced below- 407. Power of High Court to transfer cases and appeals. - Whenever it is made to appear to the High Court- (a) .... (b) .... In my view, it is a case of sub-clause (c) of sub-section (1) of Section 407 of the Code of Criminal Procedure, which alone is extracted and reproduced below- 407. Power of High Court to transfer cases and appeals. - Whenever it is made to appear to the High Court- (a) .... (b) .... (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order-- (i) .... (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction: 6. I have considered the statements made in the reply affidavit. In concluding paragraph, it is denied that the applicant is residing at Aurangabad along with her brother and mother. According to the respondent, applicant is residing at village Ban was, Taluka: Palam and only with intention to harass the present respondent, application seeking transfer of the proceedings, is being filed. It is an undisputed fact that present respondent is residing at Dhanegaon, Taluka and Dist. Narided. In my view, it is difficult to accept the contention of the respondent that the present applicant has filed this application with false contention that she is residing at Aurangabad. For the sake of argument, the contention raised by the respondent even if. is accepted, in that circumstance, the present applicant-wife has to attend the Family Court at Aurangabad from village Banwas. Taluka: Palam. Dist. Parbhani. Ultimately, it will be inconvenient and expensive for her to attend the Family Court, at Aurangabad. In my view, the convenience of the applicant-wife needs to be taken into consideration. From the record, it appears that the applicant-wife was/is required to file five proceedings for recovery of the amount of maintenance from the respondent-husband and all these proceedings are pending in the Court of Judicial Magistrate, First Class at Gangakhed, Dist. Parbhani. In this view of the matter, all these five proceedings for recovery and one Criminal Misc. Application No. 85/2000 filed under Section 127 of the Code of Criminal Procedure, by the present applicant against the respondent-husband, can be withdrawn from the Court of learned Judicial Magistrate, First Class, Gangakhed, Dist. Parbhani. In this view of the matter, all these five proceedings for recovery and one Criminal Misc. Application No. 85/2000 filed under Section 127 of the Code of Criminal Procedure, by the present applicant against the respondent-husband, can be withdrawn from the Court of learned Judicial Magistrate, First Class, Gangakhed, Dist. Parbhani and transferred to the Family Court at Aurangabad." 22. Since in our instant case, the petitioner is an old lady suffering from serious old age ailments and facing huge financial hardship over a last couple of years and since she has no place to stay in the district of Dibrugarh, this Court needs to accept her prayer for transfer of the aforesaid case from the learned Sub-Divisional Judicial Magistrate, Dibrugarh to any other court at Jorhat having jurisdiction over the matter--------argues learned counsel for the petitioner." 23. I have considered the rival submissions having regard the materials on record and have found that there are materials on record which show that the petitioner is an old lady suffering from several old age ailments. Materials on record further demonstrate that she has no means to maintain herself and her daughter. There are also materials to show that she has no place to reside in the district of Dibrugarh for which she was forced to leave the district of Dibrugarh seeking shelter under her brother who lives at Mariani. 24. Situated thus, in my considered opinion, these are more than sufficient requiring this Court to transfer the case from learned Sub-Divisional Judicial Magistrate, Dibrugarh to any court at Jorhat having jurisdiction over the matter, more so, when there are materials on record to show that the respondent No. 1 is a public servant working in the oil company drawing hefty salary. 25. It may be noted here that in terms of the section 27 Act of 2005, a fresh case can be filed before the Chief Judicial Magistrate, Jorhat However, I have found that the present case was filed as back as in the year 2011 and pursuant to the order passed therein, the opposite parry therein, who is respondent No. 1 in this proceeding entered appearance and contested the proceeding and such a proceeding has now reached the stage of hearing. 26. All these reveal that the petitioner herein has undergone a huge ordeal in taking the case to that far. 26. All these reveal that the petitioner herein has undergone a huge ordeal in taking the case to that far. If she is asked to file a case afresh at Jorhat in terms of section 27 of the Act, 2005, she has to undergo same ordeal once again. Being so, in my considered opinion, in the tacts and circumstances of the present case, it may not be fair to require the petitioner to file the case afresh before the learned Chief Judicial Magistrate, Jorhat. 27. That being the position, the submissions, advanced by the learned counsel appearing for the respondent No. 1 cannot be accepted in the interest of justice and same is accordingly rejected. 28. Resultantly, the Case No. 347c/2011 stands transferred from the court of learned Sub-Divisional Judicial Magistrate, Dibrugarh to the learned Chief Judicial Magistrate, Jorhat for disposal in accordance with law. 29. In view of the above, learned Sub-Divisional Judicial Magistrate, Dibrugarh is directed to transmit the case aforementioned to the court of learned Chief Judicial Magistrate, Jorhat immediately. 30. On receipt of the case, the learned Chief Judicial Magistrate, Jorhat shall issue summons to both the parties and on their appearance, he would proceed with the case in accordance with law. In the result, this proceeding stands allowed. No costs.