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2015 DIGILAW 510 (JK)

Samaira Choudhary v. Javed Iqbal & Ors.

2015-09-24

TASHI RABSTAN

body2015
JUDGMENT 1. The petitioner, through the medium of the present petition, is seeking transfer of Final Report/Challan No. 165/2014 pending before the Court of learned Additional Session Judge, Rajouri in Case FIR No. 226 of 2012 dated 09.05.2012 titled State v. Javed Iqbal and others, to the Court at Jammu. 2. Brief facts of the case arising out of the FIR is that the petitioner has filed a complaint against respondent Nos. 1 to 4 before the learned Chief Judicial Magistrate, Rajouri for referring the matter to Police Station, Rajouri in terms of Section 156 (3) Cr.P. C. to investigate the commission of offence under Sections 376/406/420/379 and 120-B RPC. The learned Chief Judicial Magistrate, Rajouri vide his order dated 9th May, 2012 referred the complaint to the Station House Officer, Rajouri to proceed in accordance with law and, accordingly, an FIR No. 226/2012 dated 9th May, 2012 came to be registered against respondent Nos. 1 to 4. Subsequently, after the completion of investigation, the Police has filed the Challan before the Court of learned Chief Judicial Magistrate, Rajouri on 12th May, 2012, which was committed to the Court of learned Sessions Judge, Rajouri and the said Challan is pending before the Learned Additional Sessions Judge, Rajouri for adjudication. 3. The ground set out by the petitioner for transferring the Challan from the Court of learned Additional Sessions Judge, Rajouri to the Court at Jammu is that the petitioner has to travel all the way from Chandigarh to Jammu and then to Rajouri to pursue the Challan. It is also alleged that the petitioner is also facing threat to her life as the accused persons are high headed persons and have already tried to attack the petitioner. 4. Objections stand filed by the respondents wherein it was contended that it is not necessary for the petitioner to attend the Court on each and every date of hearing as the case is persuing by State in addition, even she is also adequately represented by her own counsel. It is further contended that even otherwise in another case which is pending trial at Rajouri, the petitioner is represented by her Advocates. Therefore, there is no substance in the application for seeking transfer of the case to the Court at Jammu. 5. Heard learned counsel for the parties. 6. It is trite law that power under Section 526 Cr. It is further contended that even otherwise in another case which is pending trial at Rajouri, the petitioner is represented by her Advocates. Therefore, there is no substance in the application for seeking transfer of the case to the Court at Jammu. 5. Heard learned counsel for the parties. 6. It is trite law that power under Section 526 Cr. P. C has to be construed strictly and is to be exercised sparingly and with great circumspection. It needs little emphasis that a prayer for transfer should be allowed only when there is a well-substantiated apprehension that justice will not be dispensed impartially, objectively and without any bias. In the absence of any material demonstrating such apprehension, this Court will not entertain application for transfer of trial, as any transfer of trial from one court to another implicitly reflects upon the crediability of not only the entire State Judiciary but also the prosecuting agency; which would include the Public Prosecutor as well. 7. Hon'ble Supreme Court in case Monica & Anr. v. Satish Sharma and Ors., reported as AIR 2010 SC 103 , while dealing with a similar petition, in para 16, held as under: - "16. This Court in Abdul Nazar Madani v. State of Tamil Nadu, [ (2000) 6 SCC 204 ] has held - "7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr.P.C. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society." 8. In the present case, perusal of the pleadings and the records reveals that there are ten prosecution witnesses to be examined, who belongs to Rajouri District except the petitioner. The petitioner has not contended any justifiable and reasonable apprehension of miscarriage of justice and likelihood of bias which would not require interference in exercise of powers under Section 526 Cr. P. C. 9. Insofar as the plea canvassed at the hands of the petitioner on the ground of personal security/threat is concerned, learned Additional Advocate General invited the attention of the Court to the Status filed by SHO, Police Station, Rajouri that on the direction of the Court dated 13.06.2014, the petitioner has been provided security whenever she appeared before the Court at Rajouri and that there is no threat perception to the petitioner from the hands of the accused persons. Not only this, the learned Additional Advocate General further ensures full safety and protection/security of the petitioner as and when required. 10. Except the plea of inconvenience, no other reason was pressed into service by the petitioner. The same cannot be considered by transferring the case from Rajouri to Jammu whereas the petitioner is even otherwise also attending the Court at Rajouri in another case. 11. Therefore, in totality of the circumstances and for the reasons discussed above, this application/petition is not maintainable. Resultantly, the same is dismissed. Petition dismissed