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2024 DIGILAW 10 (HP)

Mumtaz alias Monu v. State of H. P.

2024-01-02

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking the transfer of the petition titled Mumtaz alias Monu vs. Tanvir Sheikh and others, filed under the Protection of Women from Domestic Violence Act (Domestic Violence Act) from the Court of learned Additional Chief Judicial Magistrate (ACJM), Paonta Sahib to a competent Court at Nalagarh. It has been asserted that the marriage between the petitioner and respondent no.2 was solemnized on 22.2.2014. There were differences between the parties and the petitioner filed an FIR No. 411 of 2016, dated 27.12.2016 for the commission of offences punishable under Section 498-A of IPC. Respondent No. 2 filed a suit for dissolution of marriage. Respondent No. 4 (Shokat Ali) filed a suit against the petitioner and his son asserting that they were not residing in his house. The petitioner filed a petition under the Domestic Violence Act. The petitioner is residing in Mohali. She has no source of income. Her articles are lying with the respondents. Respondent No. 2 is a well-settled Lawyer, whereas the petitioner is a struggling Advocate. She is residing in her parental home at a distance of 150 kilometres and there is a likelihood that harm would be caused to her. Hence, it has been prayed that the petition be allowed and the case be transferred from the Court of learned ACJM, Paonta Sahib to Nalagarh. 2. The petition is opposed by filing a reply by respondent no. 2, taking preliminary submissions regarding lack of maintainability and locus-standi, and the petition being bad for non-joinder of necessary parties. The contents of the petition were denied on merits. It was asserted that the petitioner had not produced the evidence before the learned Trial Court despite adequate opportunities. When the learned Trial Court made it clear that no further opportunities would be granted, the present petition has been filed to harass the respondents. All the respondents have not been made parties. The parties last resided at Mohali, and not at Paonta Sahib. The petitioner is also an Advocate practising in Punjab and Haryana High Court. Respondent No. 2 had to shift to the house of the petitioner in Mohali where he was humiliated. She asked respondent no. 2 to dispose of his property and bring the money to Chandigarh. When he declined, the petitioner filed false complaints. The petitioner is also an Advocate practising in Punjab and Haryana High Court. Respondent No. 2 had to shift to the house of the petitioner in Mohali where he was humiliated. She asked respondent no. 2 to dispose of his property and bring the money to Chandigarh. When he declined, the petitioner filed false complaints. Respondent No. 2 had divorced the petitioner on 19.12.2016 and the petitioner filed various petitions thereafter. These proceedings are abuse of the process of the Court. Respondent No. 2 is also a struggling Advocate as he had to leave his practice in Mohali. The transfer of the case to Nalagarh will cause a serious prejudice to the respondents who will have to approach Nalagarh at a distance. Therefore, it was prayed that the present petition be dismissed. 3. I have heard learned counsel for the parties and have gone through the records carefully. 4. It was laid down by the Hon’ble Supreme Court in Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204 that the Court is justified in transferring the matter from one Court to another when the public confidence in the fairness of a trial is seriously compromised. It was observed:- 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 CrPC. 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. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. 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 G.X. Francis case [ AIR 1958 SC 309 : 1958 Cri LJ 569] this Court felt that where public confidence in the fairness of the trial is likely to be seriously undermined under the circumstances of the case, a transfer petition could be allowed. On finding that “there is uniformity of testimony from both sides about the nature of surcharged communal tension in that area”, the Court found that the local atmosphere was not conducive to a fair and impartial trial which justified a good ground for transfer. The Court rejected the contention of the petitioner therein regarding the wild allegations made to the effect that no court in the State of M.P. would be unbiased or impartial for dispensing justice. In the peculiar facts and circumstances of the case, the trial was transferred to an adjoining court. The mere existence of a surcharged atmosphere without there being proof of inability to hold a fair and impartial trial cannot be made ground for the transfer of a case. The alleged communally surcharged atmosphere has to be considered in light of the accusations made and the nature of the crime committed by the accused seeking transfer of his case. It will be unsafe to hold that as and when accusations are made regarding the existence of a surcharged communal atmosphere, the case should be transferred from the area where the existence of such a surcharged atmosphere is alleged. This Court had not concluded so generally in Francis's case [ AIR 1958 SC 309 : 1958 Cri LJ 569] as has been argued before us on behalf of the petitioner. 5. This Court had not concluded so generally in Francis's case [ AIR 1958 SC 309 : 1958 Cri LJ 569] as has been argued before us on behalf of the petitioner. 5. Similarly, it was held in Amarinder Singh v. Parkash Singh Badal, (2009) 6 SCC 260 that before ordering the transfer, there should be reasonable apprehension of a miscarriage of justice or likelihood of bias. The mere allegation that justice will not be done is not sufficient to transfer a case to some other Court. It was observed:- 13. In K. Anbazhagan v. Supdt. of Police [ (2004) 3 SCC 767 : 2004 SCC (Cri) 882] this Court had an occasion to consider the transfer of a criminal trial from the State of Tamil Nadu to another State, a two-Judge Bench, after going into the factual details, particularly, the change of Government, attitude of the Public Prosecutor and finding that there is justifiable and reasonable apprehension of miscarriage of justice as well as likelihood of bias, allowed the transfer petition pending on the file of the XIth Additional Sessions Judge (Special Court 1), Chennai, State of Tamil Nadu to the State of Karnataka. While directing the transfer this Court permitted the State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka to appoint a senior lawyer having experience in criminal trials as Public Prosecutor to conduct those cases. 14. In the same order in the Anbazhagan case [ (2004) 3 SCC 767 : 2004 SCC (Cri) 882] the Court observed that the Public Prosecutor will be at liberty to apply that the witnesses who have been recalled and cross-examined by the accused, who have resiled from the previous statement, may be again recalled. The Court further observed that: (SCC p. 787, para 34) “34. (f) … The Public Prosecutor would be at liberty to apply to the court to have these witnesses declared hostile and to seek permission to cross- examine them.” 15. In Abdul Nazar Madani v. State of T.N. [ (2000) 6 SCC 204 : 2000 SCC (Cri) 1048] the issue dealt with was for transfer of a criminal case from one State to another. In the said decision it was reiterated that: (SCC p. 210, para 7) “7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. In the said decision it was reiterated that: (SCC p. 210, para 7) “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 CrPC. 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. [However,] 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.” After perusing the figures furnished and considering all the materials, it was concluded that the transfer petitions were totally misconceived and dismissed the same. 16. In Jayendra Saraswathy Swamigal (II) v. State of T.N. [(2005) 8 SCC 771 : (2006) 1 SCC (Cri) 1] this Court has held that: (SCC p. 790, para 22) “22. … If there is reasonable apprehension on the part of a party to a case that justice may not be done, he may seek transfer of the case.” It also held that: (SCC p. 790, para 22) “22. … The apprehension entertained by the party must be a reasonable one and the case cannot be transferred on a mere allegation that there is apprehension that justice will not be done.” 17. It is a well-established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political mandate of the informant or the complainant. However, if justifiable and reasonable apprehension of a miscarriage of justice and the likelihood of bias is established, undoubtedly, the proceeding has to be transferred elsewhere by the exercise of power under Section 406 CrPC. 18. However, if justifiable and reasonable apprehension of a miscarriage of justice and the likelihood of bias is established, undoubtedly, the proceeding has to be transferred elsewhere by the exercise of power under Section 406 CrPC. 18. For a transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. On the other hand, mere allegations that there is apprehension that justice will not be done in a given case do not suffice. In other words, the court has further to see whether the apprehension alleged is reasonable or not. The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension. 19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. 20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is a sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one. 6. The petitioner had herself filed the petition at Paonta Sahib. She stated that when she went to attend the hearing, she was pressurized by 10-12 Advocates; however, the date of the incident was not mentioned. It was not even mentioned that any complaint was ever made to the Court regarding the interference with the administration of justice. Therefore, the plea of the petitioner that it is difficult for her to attend the Court is not acceptable. 7. It was not even mentioned that any complaint was ever made to the Court regarding the interference with the administration of justice. Therefore, the plea of the petitioner that it is difficult for her to attend the Court is not acceptable. 7. The petitioner herself claimed that she had filed a petition under Section 125 of Cr.P.C. at Mohali. The respondent No.2 also claimed that the parties last resided together at Mohali and Mohali was convenient for the petitioner. Still, she chose to file the petition at Paonta Sahib. Thus, she has to show a reasonable cause for transferring the matter from the Court at Paonta Sahib to some other Court, when she had herself chosen Paonta Sahib. In the present case, no corroborating material was placed on record to justify the allegations made in the petition. Hence, it is not permissible to transfer the matter to some other Court. 8. Consequently, the present petition fails and the same is dismissed. 9. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.