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2018 DIGILAW 924 (HP)

Rakesh Kumar v. Vishal Priaya

2018-05-18

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J —Order dated 13.7.2017 passed by learned Sessions Judge, Kangra at Dharamshala in an application under Section 408 Cr.P.C. registered as Criminal T.A. No. 7 of 2016 is under challenge in this petition. It is seen that while passing the impugned order learned Sessions Judge had transferred the complaint titled Vishal Priya versus Rakesh Kumar and another filed by respondent-wife under Section 12 of the Protection of Women from domestic violence Act, 2005 against the petitioners herein. 2. The legality and validity of the impugned order has been questioned on several questions of law and facts, however, mainly that another case under Section 23 of the Domestic Violence Act is being pursued by her at Dehra. The arguments qua this aspect were addressed on 14.3.2018 when the following order came to be passed in this petition: "Heard for some time. Learned Counsel representing the petitioner has pointed out that one more application filed under Section 23 of the Domestic violence At is pending in the Court of Additional Chief Judicial magistrate, Dehra and that respondent is prosecuting the said application at Dehra. The contention therefore, is that when she is prosecuting one of the case she instituted at Dehra against her husband, the petitioner, there was no occasion to seek the transfer of another application under Section 12 of the Act from Dehra to Dharamshala. Learned Counsel representing the respondent prays for and is granted two weeks time to have instructions in the matter. List on 18.4.2018." 3. On the next date i.e. 18.4.2018 learned Counsel representing the respondent-wife on instructions apprised this Court that it was an appeal pursued by her at Dehra which now stands withdrawn on 11.4.2018. This order also reads as follow: "Learned Counsel representing the respondent, on instructions, submits that another matter being pursued by her at Dehra was an appeal, which now stands withdrawn on 11.4.2018. Also that now only this case transferred to Dharamshala is pending disposal between her and her husband, the petitioner. It is in this backdrop, learned counsel for the petitioner seeks time to have instructions. Allowed. List on 4th May, 2018." 4. Learned Counsel representing the petitioner was granted time to obtain instructions in the matter. He has not disputed the pending case between the parties at Dehra, which now stands withdrawn. It is in this backdrop, learned counsel for the petitioner seeks time to have instructions. Allowed. List on 4th May, 2018." 4. Learned Counsel representing the petitioner was granted time to obtain instructions in the matter. He has not disputed the pending case between the parties at Dehra, which now stands withdrawn. This being the factual position, it is now to be seen from the record that the impugned order is legally sustainable or not. The answer to this poser in all fairness and in the ends of justice would be in affirmative for the reasons that the respondent is presently residing at Dharamashala. 5. In the nature of the allegations and counter allegations, the parties levelled against each other, it can reasonably be believed that for her it is not possible to pursue the case at Dehra. The petitioners are no doubt the residents of village Mangarh, Tehsil Dehra, however, in a better position as compared to the respondent to pursue the case at Dharamashala. Keeping in view that the women are recognized as victims in our legal set up, the apex Court in Rajani Kishore Pardeshi v. Kishore Babulal Pardeshi , (2005) 12 SCC 237 and Anjali Ashok Adhwani v. Ashok Kishnichand Sadhwani , (2009) AIR(Supreme Court) 1374 has held that as and when there is a prayer on their behalf qua transfer of a case from one place to another, the discretion should be exercised in their favour and the case transferred. Similar is the view of the matter taken by this Court while placing reliance on the judgment ibid in Cr.MMO No. 41 of 2017, title Dr. Des Raj versus Dr. Bharti Kapoor & anr., decided on 18.8.2017. 6. In view of what has been said hereinabove, this petition being devoid of any merit is though dismissed, however, with the expectation that the respondent-wife shall associate with the proceedings pending in the Court at Dharamshala and not delay the same in any manner whatsoever. 7. The petition is accordingly disposed of, so also the pending application(s) , if any. 8. An authenticated copy of this judgment be supplied to learned Chief Judicial Magistrate, Kangra at Dharamshala, the transferee Court, for record and compliance.