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2025 DIGILAW 840 (HP)

Dalip Singh v. State of Himachal Pradesh

2025-04-30

RAKESH KAINTHLA

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JUDGMENT : (Rakesh Kainthla, J.) The petitioner has filed the present petition for transfer of criminal case from the Court of learned Chief Judicial Magistrate, Mandi, District Mandi, H.P. to the Court of learned Chief Judicial Magistrate, Kullu, District Kullu, H.P. It has been asserted that the police registered an FIR No. 14 of 2017, dated 21.5.2017 for the commission of offences punishable under Sections 420 , 467, 468 , 471 and 120-B of the Indian Penal Code ( IPC ). The police filed a charge sheet against the petitioner and other persons. The proceedings are at the initial stage, and a charge has been framed. No witness has been examined. The petitioner is a resident of Gandhinagar, Post Office Dhalpur, District Kullu, H.P. and out of four accused persons, three are residents of District Kullu, H.P. One accused is residing at Shimla and there is no legal justification for allowing the continuation of the criminal case before learned Chief Judicial Magistrate, Mandi, H.P. The petitioner is unable to travel to Mandi due to his old age. No prejudice would be caused to the prosecution if the case is transferred to the Court of learned Chief Judicial Magistrate, Kullu, H.P. The important witnesses are residing in District Kullu, H.P., therefore, it was prayed that the present petition be allowed and the case be transferred to the Court of the learned Chief Judicial Magistrate, Kullu, H.P. 2. I have heard Ms. Sangeeta Vasudeva, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 3. Ms. Sangeeta Vasudeva, learned counsel for the petitioner, submitted that the petitioner is an aged person. He is residing at Kullu and is unable to travel to Mandi. The three accused and most of the witnesses are also residing in District Kullu. No prejudice would be caused to the prosecution by transferring the case to Kullu. Hence, she prayed that the present petition be allowed and the criminal case be transferred to the Court of learned Chief Judicial Magistrate, Kullu, H.P. 4. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State, submitted that the entire cause of action arose at Mandi. The case is to be tried by the Court within whose jurisdiction the offence had taken place. There is no reason to transfer the present case from Mandi to Kullu. Therefore, he prayed that the present petition be dismissed. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State, submitted that the entire cause of action arose at Mandi. The case is to be tried by the Court within whose jurisdiction the offence had taken place. There is no reason to transfer the present case from Mandi to Kullu. Therefore, he prayed that the present petition be dismissed. 5. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 6. Hon’ble Supreme Court laid down the guidelines for transferring a criminal case from one Court to another in Shri Sendhur Agro & Oil Industries v. Kotak Mahindra Bank Ltd., 2025 SCC OnLine SC 508 and observed as under: 49. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not the power under Section 406 Cr. P.C.should be exercised, yet it is manifest from a bare reading of sub-sections (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 and more particularly on the plea of lack of territorial jurisdiction of the court to try the offence under Section 138 of the N.I. Act. 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 appli-cation 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 ex-penses of the official and non-official witnesses; (iv) a communally surcharged atmosphere, indicating some proof of inability in holding a 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. [See: Nahar Singh Yadav v. Union of India , (2011) 1 SCC 307 7. It was submitted that it is not permissible for the petitioner to travel to Mandi due to his old age, and the case be transferred to Kullu. This submission is not acceptable. The petitioner can always seek an exemption from his personal appearance. It was laid down by the Hon’ble Supreme Court in Shri Sendhur Agro & Oil Industries (supra) that mere inconvenience or hardship faced by the accused from travelling from one place to another is no ground for transfer. It was observed:- “65. For the purpose of transfer of any case or proceedings under Section 406 of the Cr. P.C., the case must fall within the ambit of the expression “expedient for the ends of justice”. Mere inconvenience or hardship that the accused may have to face in travelling from Coimbatore to Chandigarh would not fall within the expression “expedient for the ends of justice”. The case must fall within any of the five situations as narrated in para 49 of this judgment. Mere inconvenience or hardship that the accused may have to face in travelling from Coimbatore to Chandigarh would not fall within the expression “expedient for the ends of justice”. The case must fall within any of the five situations as narrated in para 49 of this judgment. It is always open for the petitioner accused to pray for exemption from personal appearance or request that the Court that him may be permitted to join the proceedings online.” 8. It was further held that mere inconvenience of the parties is no ground to transfer. It was observed:- “47. It follows from the above-mentioned exposition of law that transfer of cases under Section 406 Cr. P.C. may be allowed when there is a reasonable apprehension backed by evidence that justice may not be done, and mere convenience or inconvenience of the parties may not by itself be sufficient enough to pray for transfer. The court has to appropriately balance the grounds raised in the facts and circumstances of each case and exercise its discretion in a circumspect manner while ordering a transfer under Section 406.” 9. It was submitted that most of the witnesses are residing at Kullu, and it would be convenient for them if the case was transferred to Kullu. This is not supported by the copy of the charge sheet annexed to the present petition, as only 13 witnesses out of 46 witnesses cited by the prosecution belong to Kullu. Hence, the plea that the trial at Kullu would be convenient to the witnesses cannot be accepted. 10. It was submitted that the cause of action had arisen at Kullu and the matter should be transferred to Kullu. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in M/s Kamal Enterprises and another Vs. A.K. Construction Company 2025 LiveLaw (SC) 289 that the plea regarding the lack of jurisdiction is no ground for transfer as this plea can be raised before the Court that can return the complaint for its presentation to the appropriate Court. It was observed:- “2. The petitioners are the accused in the complaints filed under Section 138 of the Negotiable Instruments Act, 1881. The contention of the petitioners is that the Trial Court before which the complaints have been filed by the respondent has no jurisdiction to entertain the complaints. It was observed:- “2. The petitioners are the accused in the complaints filed under Section 138 of the Negotiable Instruments Act, 1881. The contention of the petitioners is that the Trial Court before which the complaints have been filed by the respondent has no jurisdiction to entertain the complaints. The petitioners are entitled to raise the said contention before the learned Magistrate, who is empowered to return the complaint for presentation to the proper Court, if the learned Magistrate is satisfied that the Court has no territorial jurisdiction. 3. Therefore, this ground of lack of territorial jurisdiction cannot be considered in these Transfer Petitions.” 11. Hence, the petitioner cannot seek transfer on this ground as well. 12. Consequently, there is no reason justifying the transfer of the petition from District Mandi, H.P., to District Kullu, H.P. Hence, the present petition fails and the same is dismissed. 13. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.