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2018 DIGILAW 436 (BOM)

Kavita v. Ashok Parshuram Tiple

2018-02-13

V.M.DESHPANDE

body2018
JUDGMENT : V.M. Deshpande, J. Initially, on 21.12.2016, notices were issued to the non-applicant nos. 1 to 8 and ad interim stay was granted in favour of the applicants. On 04.05.2017, it was noticed that non applicant no.2 Parshuram was reported to be dead however non-applicant nos. 1, 3 to 8, in spite of service failed to appear and therefor in order to give one chance to them, the matter was adjourned. Order dated 05.07.2017 shows that the Legal Aid Committee instructed the present counsel about death of non-applicant no.3 also. Therefore, vide order dated 24.07.2017, the application filed on behalf of the applicants for deleting name of non-applicant nos.2 and 3 was allowed and their names were struck off from the cause title. 2. In spite of service, the remaining non applicants were not putting in their appearance before this Court to contest the matter. Therefore, on 24.08.2017, fresh notices were issued for final disposal of the matter. In spite of service and in spite of opportunity being given to the non applicants to defend themselves in the present proceeding, they chose not to appear before this Court. 3. Heard Ms. M.S. Hiwase, Advocate appointed for the applicants from the Legal Aid Committee. Rule. Rule is made returnable forthwith. 4. The present application under section 407 of the Code of Criminal Procedure, 1973 is for transferring the Miscellaneous Criminal Case No. 446/2009 pending on the file of Judicial Magistrate First Class, Chandrapur to the file of Judicial Magistrate First Class, Pune. 5. The applicants are wife and sons of the non applicant no.1. The applicants, filed an application in the Court of Judicial Magistrate First Class, Chandrapur under Section 12 read with section 18, 19, 20 and 22 of the Protection of Women From Domestic Violence Act, 2005 and claimed various reliefs. The said application was registered as Misc. Criminal Application No. 446/2009. For deciding the present application, the Court will not make any comment in respect of the merits or demerits of the statements of facts made in the said proceedings by the applicant. 6. Be that as it may. In the application under section 407 of the Code of Criminal Procedure, 1973 it is stated that after they were deserted by the non-applicants, the applicants are taking shelter of parents of the applicant no.1 at Pune. The applicant no.1 is housewife. 6. Be that as it may. In the application under section 407 of the Code of Criminal Procedure, 1973 it is stated that after they were deserted by the non-applicants, the applicants are taking shelter of parents of the applicant no.1 at Pune. The applicant no.1 is housewife. She is having no independent source of income. The applicant nos. 2 and 3 are minor sons. In the application for transfer, it is stated that father of the applicant no.1 is a retired person and therefore the applicants are in great financial restraint and obviously they are the burden on the parents of applicant no.1. The distance between Chandrapur and Pune is about 1000 Km. For pursuing the proceedings at Chandrapur, obviously, the applicants are required to remain present at Chandrapur. It gives an extra financial burden not only to the applicants but also to her parents apart from the fact that the applicant no.1 is a lady who is required to face physical difficulties also in travelling this distance of 1000 km. 7. It is shown in the cause title that the non applicant no.1 is doing the business. In my view, no prejudice will be caused to the non applicants, if the matter is transferred from Chandrapur to Pune with a direction that only the non applicant no.1 will be required to attend the proceedings at Pune and the parents of non applicant no.1 i.e. non applicant nos. 4 to 8 will be necessary at Pune Court at the time of recording of the evidence. 8. In view of above, following order is passed. ORDER (i) Criminal Application No. 58/2016 is allowed. (ii) Misc. Criminal Application No. 446/2009 pending on the file of Judicial Magistrate First Class, Chandrapur is hereby transferred to the file of Chief Judicial Magistrate, Pune. (iii) Chief Judicial Magistrate, Pune, after receipt of record, shall either retain the said on his file or can assign the said proceeding to the file of other Judicial Magistrate First Class at Pune. (iv) The Court on whose file the application will either be transferred or is retained, the said Court shall issue fresh notice to the non applicants and shall decide the proceeding, in accordance with law, after following the principles of natural justice. (iv) The Court on whose file the application will either be transferred or is retained, the said Court shall issue fresh notice to the non applicants and shall decide the proceeding, in accordance with law, after following the principles of natural justice. (v) Presence of the non applicant no.1 Ashok Tiple will be sufficient at Pune Court, except on the dates of the evidence when presence of other non applicants will also be necessary. (vi) Fees of Ms. M.S. Hiwase, Advocate appointed by the Legal Aid Committee is fixed at Rs.5,000/-, which shall be inclusive of all the expenses which she has already incurred. Rule is made absolute in the above terms.