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Madhya Pradesh High Court · body

2017 DIGILAW 969 (MP)

Purnima Sonakpuriya v. State of M. P.

2017-09-05

SUSHIL KUMAR PALO

body2017
ORDER 1. This petition under section 407 CrPC has been filed by the complaint/petitioner- Smt. Purnima Sonakpuriya requesting to transfer the Criminal Case No.2931/2014 (State of M.P v. Sunil and others) pending before JMFC, Betul to any Court at another district in the interest of justice. 2. The petitioner is the wife of respondent No.2. Respondents No.3 to 6 are the family members of respondent No.2. The petitioner lodged an FIR against the respondent No. 2 and his family members alleging demand of dowry and harassment. Therefore, offence under section 498A/34 of the IPC has been registered at Police Station, Betul on 19.6.2014. Subsequent thereto, after investigation, charge sheet has been filed. It is alleged that respondent No.2 is a practicing lawyer at Betul. Therefore, no advocate agreed to appear on behalf of the petitioner/complainant to object the application for bail filed by the respondents No.2 to 6. 3. The petitioner/complainant claimed that because respondent No.2 is a practicing lawyer at Betul and having political connections, the petitioner will not be able to participate in the criminal proceedings against the respondents No.2 to 6. Respondent No.2 is also a permanent resident of District Betul. It is very much possible that during the proceeding, the respondent will try to influence and pressurize the petitioner using their contacts at Betul. The petitioner/complainant also alleged that her efforts to engage a counsel during the bail application was in vain, for no lawyer appeared against the respondent No.2. 4. Report lodged by the applicant, therefore, cannot be properly and effectively persuaded. The applicant will be deprived of justice. She has requested that she wants to assist the prosecution and appear personally in the proceedings but the distance from Sehore, (her present residence as she lives with her parents) to Betul is near about 200 kms. Her father is aged 65 years old. Therefore, she cannot participate in the case for there is no male member to escort her, hence, she seeks transfer of Criminal Case No.2931/2014 (State of M.P v. Sunil and others) pending before JMFC, Betul to any equivalent Court at a neutral place. 5. Learned counsel appearing for the respondents No.2 to 6 vehemently opposed the contentions. He contended that the petitioner has engaged counsel in her case before the Family Court. Therefore, her contention that no counsel appearing on behalf of the petitioner against the respondent No.2 at Betul is baseless. 5. Learned counsel appearing for the respondents No.2 to 6 vehemently opposed the contentions. He contended that the petitioner has engaged counsel in her case before the Family Court. Therefore, her contention that no counsel appearing on behalf of the petitioner against the respondent No.2 at Betul is baseless. 6. It is also contended that if she thinks that she is apprehending unhappy instance at Betul during the proceeding, she may seek the protection of police. In this regard reliance has been placed in the case of Archna Singh (Smt.) v. Dilip Singh [I.L.R. (2015) M.P. 793], wherein in a similar circumstances, direction was issued to provide security if the petitioner's apprehension is found to be correct. Therefore, application for transfer of the case has been dismissed. 7. It is also contended that the respondents No.3 and 4 (the parents of respondent No.2) are old, aged persons, therefore, transfer of the case from Betul would cause inconvenience for them for participating in the criminal proceedings. 8. Heard the counsel. 9. The object of section 407 of CrPC is a assurance of a fair trial. It is not disputed that the respondent No.2 is a practicing lawyer at Betul. The apprehension of the petitioner/wife is of course is not unfounded and if she is not able to pursue her case, to her satisfaction, she would be deprived of justice. The convenience of the complainant and the prosecution witnesses is a relevant matter to be considered for the purpose of section 407 as has been held in the case of Failor Rahman v. State of Punjab [ 2006 CrLJ 3281 ]. 10. The apprehension of the petitioner/wife is not very natural. A fair and impartial trial cannot be heard, where there is a reasonable apprehension in the mind of the party about the trial. A well known principle of law is that justice should not only be done but should also appear to be manifestly done. 11. If the case is transferred to a place to Itarsi, (District Hoshangabad) which is about 89 kms. from Betul, the place where the respondent No.2 is a practicing lawyer, the complainant/wife will have to travel from Sehore to Itarsi which is about 140 kms. for attending the Court. Whereas the respondents No.2 to 6 have to travel for only 89 kms. from Betul, the place where the respondent No.2 is a practicing lawyer, the complainant/wife will have to travel from Sehore to Itarsi which is about 140 kms. for attending the Court. Whereas the respondents No.2 to 6 have to travel for only 89 kms. The transfer of the case is not on the fancied by the applicant but it is considered to ensure that the complainant gets fair and impartial justice. The yardstick in considering the transfer is the interest of justice. The ground for transfer is not unfounded. 12. Therefore, as there exists justified reasons, the petition under section 407 of the CrPC is allowed. The Criminal Case No.2931/2014 (State of M.P. v. Sunil and others) pending before JMFC, Betul is transferred to the Court of JMFC, Itarsi for disposal according to law. 13. However, before parting with the order, it is made clear that the respondents No.3 and 4 are senior citizen, their identification is not disputed, therefore, if any application for their exemption is sought by them, the trial Court may consider the same sympathetically, keeping in view the above circumstances.