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2024 DIGILAW 857 (AP)

Madamanchi Srinivas v. State Of Andhra Pradesh

2024-07-29

BANDARU SYAMSUNDER

body2024
JUDGMENT : (Bandaru Syamsunder, J.) : I have heard learned counsel for the petitioners, Mr.S.Satyanarayana Moorthy as well as learned counsel for the respondent, Ms.Gayathri. 2. This petition is filed by the petitioners/accused under Section 407 of the Criminal Procedure Code (in short “Cr.P.C”), seeking transfer of C.C.No.154 of 2023 on the file of Additional Junior Civil Judge Court, Macherla, Guntur Judicial District to any Court at Visakhapatnam District or any other Court. The petitioners submit that on the report lodged by R2, SHO, Macherla Rural Police Station registered a case against the petitioners on 10.05.2023 for the offences punishable under Section 498-A r/w 34 IPC and Sections 3 and 4 of Dowry Prohibition Act. It is the contention of the petitioners that petitioner No.1, petitioner No.2 and petitioner No.6 are the residents of Visakhapatnam, whereas the petitioner No.3, petitioner No.4 are residents of Guntur District and R2 has lodged false and frivolous complaint against them. They submit that petitioner No.1 filed divorce O.P on 05.07.2022, whereas R2 lodged a report against petitioners for dowry harassment on 10.05.2023 and in F.C.O.P.No.1230 of 2022 pending on the file of Family Court, Visakhapatnam, filed by the petitioner seeking for divorce, R2 engaged counsel and filed counter. It is also the contention of the petitioners that marriage of the petitioner No.1 and R2 was solemnized at Visakhapatnam and they also resided at Visakhapatnam but a false case was foisted against the petitioners at Macherla in the said case, petitioners were called to Macherla Police Station, where they attended, at that time, relatives of R2 assaulted petitioner No.1 and threatened other petitioners with dire consequences. The main contention of the petitioners is that on a false report lodged by R2, a criminal case has been registered against them, which is now pending as C.C.No.154 of 2023 on the file of Junior Civil Judge Court, Macherla. It is also the contention of the petitioners that they have got a threat to their life if they attend the Court at Macherla. It is also the contention of the petitioners that they have got a threat to their life if they attend the Court at Macherla. The petitioners submit that even R2 when she attended Court in F.C.O.P.No.1230 of 2022, she came to house of the petitioner No.1 and making scene before the house by calling all the people in and around the house of petitioner No.1 in Visakhapatnam and they are having life threat in the hands of R2 family who also attacked petitioners in the police station itself, which was also complained to higher authorities in police department, which copies are filed along with this petition. They pray to allow the petition. 3. R1/State not filed any counter-affidavit opposing the prayer of the petitioners. R2/informant has filed counter-affidavit denying the allegations made in the affidavit of the petitioner No.1. She admitted that marriage of herself and petitioner No.1 was performed at Visakhapatnam and they both lived at Visakhapatnam and then petitioner No.1 filed F.C.O.P.No.1230 of 2022 pending on the file of Family Court, Visakhapatnam, seeking for divorce, wherein she is regularly appearing. She submits that due to divorce petition filed by the petitioner No.1, she is suffering from mental trauma and health issues. Now she is residing in her parents’ village, due to that she invoked jurisdiction at the place of shelter, where she is residing and lodged a report, which SHO investigated the case and filed charge sheet against the petitioners vide C.C.No.154 of 2023 on the file of Junior Civil Judge Court, Macherla. It is also the contention of R2 that wife has got right to file report for dowry harassment at the place where she is taking shelter after driven out from matrimonial home who faced cruelty from husband and relatives. She prays to dismiss the petition. 4. Learned counsel for the petitioners, would submit that though alleged harassment took place at Visakhapatnam, but R2/wife has chosen to file complaint at Macherla after petitioner No.1 filed petition seeking for divorce, wherein R2 made her appearance, engaged a counsel and filed counter. She prays to dismiss the petition. 4. Learned counsel for the petitioners, would submit that though alleged harassment took place at Visakhapatnam, but R2/wife has chosen to file complaint at Macherla after petitioner No.1 filed petition seeking for divorce, wherein R2 made her appearance, engaged a counsel and filed counter. He would further submit that whenever petitioner No.1 attended before Junior Civil Judge Court at Macherla, R2 and her relatives are threatening petitioner No.1 with dire consequences, due to that he also lodged a report before police on 30.05.2022, which was received by the office of Superintended of Police, Guntur and petitioner No.2 gave report to Commissioner of Police, Visakhapatnam on 09.01.2023 for alleged acts of the R2. It is the contention of the learned counsel for the petitioners that for any reason, request of the petitioners to transfer the case to Visakhapatnam city is not considered criminal case is pending against the petitioners may be transferred to Guntur city, which is convenient for both parties as R2 also taken medical treatment at Guntur which shows that she can able to attend the Court at Guntur. He prays to allow the petition. 5. Learned counsel for R2 would submit that law permits victim wife to lodge a report against husband at the place where she is taking shelter, due to that R2 lodged a report before SHO, Macherla Police Station on 10.05.2023 who registered the case against the petitioners for the offences punishable under Section 498-A r/w 34 IPC and Sections 3 and 4 of Dowry Prohibition Act, wherein SHO after due investigation filed charge sheet vide C.C.No.154 of 2023 on the file of Additional Junior Civil Judge Court, Macherla, Guntur Judicial District. She would further submit that there is no truth in the allegations made by the petitioners that they are having threat to their life if they attend the Court at Macherla. It is also the contention of the learned counsel for R2 that R2 is not willing to transfer of criminal case to Visakhapatnam or at Guntur where petitioners are having sufficient influence and fair trial in the said places is not possible. She prays to dismiss the petition. 6. It is also the contention of the learned counsel for R2 that R2 is not willing to transfer of criminal case to Visakhapatnam or at Guntur where petitioners are having sufficient influence and fair trial in the said places is not possible. She prays to dismiss the petition. 6. Now the point that emerges for consideration of this Court is: “Whether there are any grounds to transfer C.C.No.154 of 2023 from Additional Junior Civil Judge Court, Macherla, Guntur Judicial District to any Court at Visakhapatnam or any other Court”. POINT: 7. Before going to the merits of the case, it would be beneficial to quote Section 407 of Cr.P.C. which reads as under:- “407. Power of High Court to transfer cases and appeals: (1) Whenever it is made to appear to the High Court- (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order- (i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3) Every application for an order under sub- section (1) shall be made by motion, which shall, except when the applicant is the Advocate- General of the State, be supported by affidavit or affirmation. (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub- section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made; and no order shall be made on of the merits of the application unless at least twenty- four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court' s power of remand under section 309. (7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under sub- section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under section 197.” 8. (9) Nothing in this section shall be deemed to affect any order of Government under section 197.” 8. It is settled law that mere apprehension that justice may not be done at a particular forum and mere inconvenience of petitioners cannot be a ground for transfer of a case, there must be reasonable apprehension not mere apprehension that Trial would be seriously undermine and justice would not be done, if their request to transfer the case is not considered. The Hon’ble Apex Court in Afjal Ali Sha @ Abjal Shaukat Sha Vs. State of West Bengal & others, 2023 Live Law(SC) 268, judgment dated 17.03.2023 while considering the transfer of criminal case has held that transfer of the cases has to be accepted in exceptional cases, considering the fact that transfers may cast unnecessary aspirations on the State Judiciary and the Prosecution Agency. Wherein it is also discussed the ratio laid down by Hon’ble Apex Court in Nahar Singh Yadav Vs. Union of India, (2011) 1 SCC 307 , at para 29 which reads as under:- "29. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 CrPC should be exercised, it is manifest from a bare reading of subsections (2) and (3) of the said section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are: (i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution; (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant; (iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and nonofficial witnesses; (iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and (v) existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.” 9. A perusal of charge sheet in C.C.No.154 of 2023 on the file of Additional Junior Civil Judge Court, Macherla, Guntur Judicial District which shows that prosecution has shown seven witnesses, all are residents of in and around Macherla. As rightly contented by learned counsel for R2 that as per the ratio laid down by Hon’ble Apex Court in Rupali Devi Vs.State of U.P (2019) 5 SCC 384 , it is held that “The Courts at the place where the wife takes shelter after leaving or being driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, depending on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offenses under Section 498-A of the IPC". Further, the bench observed that "Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress cause by the acts of the husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place.” 10. The main ground on which petitioners are seeking transfer of criminal case is that they are having threat to their life, if they attend the Court at Macherla as when they attended Court at Macherla, as R2, and her relatives have threatened them with dire consequences and once petitioner No.1 was also assaulted by the relatives of R2 when he attended Police Station. It is no doubt true that R2 lodged a report before SHO, Macherla, Police Station after petitioner No.1 filed petition seeking for divorce, which is pending before Family Court, Visakhapatnam. That itself is not a ground to consider the request of the petitioners to transfer the criminal case when admittedly, wife is residing in her parents’ village within the jurisdiction of Junior Civil Judge Court, Macherla. With regard to the apprehension of petitioners they can represent the same to the concerned Court where the case is pending and it is for the learned Junior Civil Judge, Macherla to give necessary direction to the concerned to protect witnesses and also the accused who are attending before the Courts. The petitioners have not stated any specific date in their affidavit with regard to the alleged threats by R2 and from relatives of R2. It is for the petitioners to put forth their defence in C.C.No.154 of 2023 to prove their innocence. When all the witnesses are residents of within the jurisdiction of Junior Civil Judge Court, Macherla and when admittedly R2 is now residing in her parents’ village at Macherla, this Court is of an opinion that it is not desirable to transfer criminal case from Additional Junior Civil Judge Court, Macherla, to any other Court at Visakhapatnam or any other District. There are no grounds to consider the request of the petitioner to transfer C.C.No.154 of 2023 on the file of Additional Junior Civil Judge Court, Macherla, Guntur Judicial District to Visakhapatnam or any other court. The learned Additional Junior Civil Judge, Macherla, is directed to take necessary steps to provide protection to the petitioners/accused and also the witnesses whenever they attend before the Court and learned Judge shall follow the ratio laid down by Hon’ble Apex Court in Mukesh Singh Vs. The State of Uttar Pradesh, 2022 LiveLaw (SC) 826 wherein it is held that “The mandate of law itself postulate that examination-inchief followed with cross-examination is to be recorded either on the same day or on the day following. In other words, there should not be any ground for adjournment in recording the examination-in-chief/cross-examination of the prosecution witness, as the case may be”. The learned Additional Junior Civil Judge, Macherla shall also consider exempting the appearance of petitioner Nos.2 to 6 before the Court whenever they file petition seeking for exemption of their appearance and he shall not insist the physical presence of petitioner Nos.2 to 6 for each and every adjournment and he can insist their presence as and when required or at the time of their examination or recording evidence of prosecution witnesses. 11. In the result, the Transfer Criminal Petition is dismissed with certain directions. No order as to costs. Consequently, miscellaneous petitions, if any, shall stand closed. The interim stay granted if any, shall stand vacated.