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2024 DIGILAW 679 (CAL)

Deepanwita Patra Majhi v. Arun Majhi

2024-03-28

SHAMPA DUTT (PAUL)

body2024
JUDGMENT : SHAMPA DUTT (PAUL), J. 1. The petitioner herein has filed the instant revisional application praying for transfer of Misc. Case No. 92 of 2019 under Section 12 of the PWDV Act from the Court of Learned Judicial Magistrate, at Ghatal to the Court of Learned Chief Judicial Magistrate, Tamluk, Purba Medinipur. 2. The petitioner/wife’s address in the cause title is given as: Police Station Daspur, District Paschim Medinipur. The address of the opposite party/husband is Shantipur (Dakshin Para), Post Office - Mecheda, Police Station- Kolaghat, District Purba Medinipur-721137. 3. In spite of due service, there is no representation on behalf of the opposite party. 4. The Supreme Court in Umesh Kumar Sharma vs. State of Uttarakhand and Others, Transfer Petition (Crl.) Nos. 534-536 of 2019, on 16th October, 2020, held: “17. In Captain Amrinder Singh vs. Prakash Singh Badal and Others, (2009) 6 SCC 260 Justice P. Sathasivam, as he then was, speaking for the three judge Bench, on the issue of transfer of criminal cases, observed as follows: “48. The analysis of all the materials, the transfer of the case as sought for, at this stage, is not only against the interest of prosecution but also against the interest of the other accused persons, the prosecution witnesses and the convenience of all concerned in the matter. *** *** *** 51. We have already pointed out that a mere allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. Considering the totality of all the circumstances, we are of the opinion that in a secular, democratic Government, governed by the rule of law, the State of Punjab is responsible for ensuring free, fair and impartial trial to the accused, notwithstanding the nature of the accusations made against them. In the case on hand, the apprehension entertained by the petitioners cannot be construed as reasonable one and the case cannot be transferred on a mere allegation that there is apprehension that justice will not be done.” 18. Let us now examine another precedent on transfer of criminal cases. In Nahar Singh Yadav and Others vs. Union of India and Others, (2011) 1 SCC 307 Justice D.K. Jain writing for the three Judge Bench discussed the scope of transfer under Section 406 Cr.P.C. in the following terms: “22. Let us now examine another precedent on transfer of criminal cases. In Nahar Singh Yadav and Others vs. Union of India and Others, (2011) 1 SCC 307 Justice D.K. Jain writing for the three Judge Bench discussed the scope of transfer under Section 406 Cr.P.C. in the following terms: “22. It is, however, the trite law that power under Section 406 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 a trial, as any transfer of trial from one State to another implicitly reflects upon the credibility of not only the entire State judiciary but also the prosecuting agency, which would include the Public Prosecutors as well.” 19. On the same line is the decision in Harita Sunil Parab vs. State (NCT of Delhi) and Others, (2018) 6 SCC 358 where Justice Navin Sinha, enunciated the law on transfer jurisdiction in the following terms: “8. The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. No universal or hard- and-fast rule can be prescribed for deciding a transfer petition, which will always have to be decided on the facts of each case. Convenience of a party may be one of the relevant considerations but cannot override all other considerations such as the availability of witnesses exclusively at the original place, making it virtually impossible to continue with the trial at the place of transfer, and progress of which would naturally be impeded for that reason at the transferred place of trial. The convenience of the parties does not mean the convenience of the petitioner alone who approaches 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. The charge-sheet in FIR No. 351 of 2016 reveals that of the 40 witnesses, the petitioner alone is from Mumbai, two are from Ghaziabad, and one is from Noida. The charge-sheet of FIR No. 1742 of 2016 is not on record. The charge-sheet in FIR No. 351 of 2016 reveals that of the 40 witnesses, the petitioner alone is from Mumbai, two are from Ghaziabad, and one is from Noida. The charge-sheet of FIR No. 1742 of 2016 is not on record. A reasonable presumption can be drawn that the position would be similar in the same also.” 20. The above legal enunciations make it amply clear that transfer power under section 406 of the Code is to be invoked sparingly. Only when fair justice is in peril, a plea for transfer might be considered. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises. 21. While assurance of a fair trial needs to be respected, the plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person. In his pleadings and arguments, the petitioner in my assessment has failed to demonstrate that because of what he endured in 2018, it is not possible for the courts in the state to dispense justice objectively and without any bias. It can’t also be overlooked that the petitioner is involved in several cases and this year itself has generated few on his own in the State of Uttarakhand. Therefore, it is difficult to accept that justice for the petitioner can only be ensured by transfer of three cases mentioned in these petitions. 22. While considering a plea for transfer, the convenience of parties would be a relevant consideration. It can’t just be the convenience of the petitioner but also of the Complainant, the Witnesses, the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account, it is clear that the petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State.” 5. The petitioner is a wife separated from her husband/opposite party and prima facie she has no source of income. 6. The petitioner is a wife separated from her husband/opposite party and prima facie she has no source of income. 6. Considering the financial and other conditions of the petitioner/wife and also keeping in mind that the opposite party too resides at Mecheda, P.S. Kolaghat, District Purba Medinipur, the prayer for transfer is allowed in the interest of justice. 7. CRR No. 2131 of 2022 is allowed. 8. The proceedings being Misc. Case No. 92 of 2019 is transferred from of the Court of Learned Judicial Magistrate, at Ghatal, Paschim Medinipur to the Court of learned Chief Judicial Magistrate, Tamluk, Purba Medinipur, through the Learned District Judge, Paschim Medinipur. The learned Chief Judicial Magistrate on receipt of the record from the learned District Judge, may hear the case himself or transfer the case to a Competent Court for expeditious disposal. 9. All connected applications, if any, stand disposed of. 10. There will be no order as to costs. 11. Interim order, if any, stands vacated. 12. Copy of this judgment be sent to the learned Trial Court for necessary compliance.