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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 4 OF 2023
Prachi Raviraj Barge .. Applicant
Mr. Yogesh Mahadev Birajdar, Advocate for Applicant.
Mr. Rushikesh C. Barge, Advocate for Respondent Nos.2 to 6.
Ms. Manisha R. Tidke, APP for the State. ...................
ORAL JUDGMENT
1. Heard Mr. Birajdar, learned Advocate for Applicant; Mr. Barge, learned Advocate for Respondent Nos.[2] to 6 and Ms. Tidke, learned APP for the State.
2. Present Criminal Application seeks transfer of complaint filed under Section 498-A alongwith other provisions of the Indian Penal Code, 1860 (for short “IPC”) by Applicant – wife in the Court of Judicial Magistrate First Class (for short “JMFC”) Koregaon, District Satara to the Court of JMFC, Pune.
3. Applicant is presently residing at Pune with her parents and she requires to provide care and support for her 9 year old daughter who is residing with her. 1 of 11
4. Apart from the proximity of distance between the two destinations, the hardship of the Applicant is clearly evident on perusal of the grounds stated in paragraph Nos.[8] and 9 of the Application and I do not have any reason to disbelieve the same.
5. PER CONTRA, Mr. Barge, learned Advocate for the private Respondents i.e. Respondent Nos.[2] to 6 would submit that he has instructions to oppose the present Criminal Application. He would at the outset draw my attention to the Affidavit-in-Reply dated 14.04.2023 which has been filed by the private Respondents and would contend that the proximity of distance between the two destinations is merely 100 kms which can be easily traversed and travelled by the Applicant – wife to attend the proceedings filed by her under the Protection of Women from Domestic Violence Act, 2005 (for short “DV Act”) at Koregaon, Satara.
6. Next ground pleaded by the private Respondents is that the Applicant – wife has made an allegation in the Application expressing apprehension of torture at the hands of the private Respondents. He would vehemently submit that the apprehension expressed by the Applicant – wife is not qualified without placing on record any material whatsoever so as to justify her apprehension / allegation. He would submit that Applicant – wife has not filed a single complaint or for that matter has made any grievance with the Law Enforcement Agencies 2 of 11 with respect to the aforementioned apprehension expressed by her and therefore this Court should not consider the present Application for transfer.
7. That apart, he would submit that the private Respondents are residing at Koregaon, District Satara and are agriculturalist and cultivators in Satara and in that view of the matter, it would be difficult for them to travel to Pune, if the said proceeding is transferred to Pune.
8. He would draw my attention to a decision passed by the learned Single Judge of this Court, Bench at Aurangabad (Coram: Smt. Vibha Kankanwadi, J.) in the case of Shama W/o Elias Shaikh Vs. The State of Maharashtra and Ors. dated 25.04.2022 in Criminal Application No.535 of 2022 and to the conclusions arrived at by the Court in paragraph Nos.[9] and 10 of the said decision. He would submit that the ratio in the case of Jyoti Mishra Vs. Dhananjaya Mishra[1] as also the decision in the case of Rupali Devi Vs. State of Uttar Pradesh and Ors.2, both delivered by the Supreme Court would squarely apply to the present case.
8.1. He would submit that in both the aforesaid decisions, Supreme Court has held that it was unjustified on the part of Applicant to seek transfer of a case filed by her under Section 498-A of
3 of 11 IPC on the ground of her convenience and that convenience of the wife can be considered in civil cases and not criminal cases, as observed in the case of Jyoti Mishra (1st supra). Though the decision in Jyoti Mishra is not placed before me, the conclusion arrived at by the Supreme Court in the said case is gathered on reading paragraph No.8 of the citation which is placed before me. It is seen that the said case was pertaining to an Application made by the wife which was a Marriage Petition filed under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights and in that context the Supreme Court held that in such cases as also cases of dissolution of marriage, the Supreme Court had showed much indulgence to the wife and ordinarily transferred the cases to a place where it would be more convenient for the wife to prosecute the proceedings. The Supreme Court also stated that criminal cases are somewhat on a different footing because accused may not be able to attend the Court proceedings for many reasons at the transferred destinations, one of which may be financial constraint and consequences of nonappearance of accused in the criminal case would be quite drastic.
9. I have considered the imprimatur of the Supreme Court in the case of Jyoti Mishra (1st supra) which is reproduced in the case cited at the bar and I find that the said ratio of the Supreme Court has been passed in the facts of that case as would be applicable to the parties therein. Infact, in my opinion, the said ratio of the Supreme 4 of 11 Court would be equally applicable to the hardship of the Applicant in the present case. Before that, I would like to refer to the provisions of Section 407 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) which state the power of the High Court to transfer cases and appeals as enumerated in Chapter XXXI of the Cr.P.C.. For reference Section 407 of Cr.P.C. is reproduced hereunder:- “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 of 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 5 of 11 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 a copy of the grounds on which it is made; and no order shall be made on 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 of 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.”
10. From the above, it is clear that the Court will have to consider the Application for transfer looking at the general convenience of the parties for meeting the ends of justice. The power 6 of 11 given to this Court under Section 407 is infact much more wider and the High Court may act either on the report of the lower Court or on the Application of a party interested or even on its own initiative. The Court when confronted with such a situation for transfer in matrimonial matters is undoubtedly required to consider the case of the Applicant who seeks transfer and more specifically so when the Applicant encounters difficulty.
11. In the present case, difficulty encountered by Applicant – wife is not only on account of proximity of distance between the two destinations but also due to the fact that she is required to provide care and support for her 9 year old daughter, who is residing with her in Pune.
12. It is seen that the Supreme Court in the case of N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha[3] has in paragraph No.9 of the said decision considered the cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure, 1908 (for short “CPC”) in such kind of cases. Though the Respondents would argue that the present case is a case filed under the DV Act, that argument in my opinion may not be open to the private Respondents. The power under Section 24 of the CPC is pari materia with the power exercised by this Court under Section 407 of the Cr.P.C.. The Supreme Court held that in matrimonial matters, wherever Courts are called upon to
7 of 11 consider the plea of transfer which is the case herein, Courts will have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and most importantly under whose protective umbrella they are seeking their sustenance to life.
13. The Supreme Court has further held that exercise of this power to meet ends of justice would demand transfer of the proceedings. It is further held that given the prevailing socio-economic paradigm in the Indian society, generally, it is the wife’s convenience which must be looked at while considering transfer.
14. In that view of the matter and looking at the aforesaid decision in the case of N.C.V. Aishwarya which has been delivered on 18.07.2022 which is subsequent to the case cited by Mr. Barge in Criminal Application No.535 of 2022 (which has been delivered on 25.04.2022), the decision cited by Respondents is clearly distinguishable on the facts of that case itself. That apart, whenever the Court is confronted with a transfer, the Court cannot make a distinguishment on the basis as to whether the proceeding is a civil or criminal proceeding. The power given to the Court under Section 407 of the Cr.P.C. envisages the general convenience of the parties or witnesses as required and for meeting the ends of justice. 8 of 11
15. In the present case, Applicant is confronted with a situation of living in Pune alongwith her parents and also requires to provide care and support for her 9 year old daughter. This fact coupled with proximity of distance between the two destinations and the fact that the Applicant would have to travel all the way to Koregaon, District Satara to attend the proceedings and would also require accompaniment of her elder parent alongwith her itself would relate to additional hardship. The distance between Koregaon, District Satara to Pune cannot be traversed directly in one go as this Court is aware about the fact that a break journey will have to be made at Satara before travelling to Koregaon which is in the interior on the road to Pandharpur.
16. The degree of hardship and difficulty is therefore clearly evident in so far as Applicant is concerned in the present case and therefore I am inclined to accept the submissions made on behalf of the Applicant on the grounds stated in the Application and allow the present Application.
17. Needless to state that the power of this Court under Section 407 of the Cr.P.C. requires the Court to consider the general convenience of the parties or witnesses, which in the opinion of this Court would also include similar difficulties, if faced by any of the private Respondents. 9 of 11
18. It is informed to the Court that Respondent Nos.[3] and 4 are senior citizens and therefore they will undoubtedly encounter difficultly, if they are required to travel from Koregaon, District Satara to Pune to attend the transferred proceedings. Mr. Barge would inform the Court that Respondent No.5 is the brother-in-law of the Applicant. Further that Respondent No.6 sister-in-law of Applicant lives in her matrimonial home in Taluka Wai, District Satara which is again at a fair distance from Koregaon.
19. To redress the grievances of the Respondents on the ground of hardship as argued by Mr. Barge, Respondent Nos.2, 3, 5 and 6 shall be permitted to appear on VC before the designated Court i.e. JMFC, Pune hearing the DV Act proceedings and the said Court shall permit them to appear on VC on the scheduled dates.
20. Needless to state that Respondent No.2 shall appear before the designated Court in the transferred proceedings. It shall be open for Respondent No.2 to make an appropriate Application for appearing on VC before the said Court, if he so desires and if any such Application is made before the designated Court, the Court shall consider it only after hearing the Applicant and pass appropriate orders therein so as to ensure that there is no further delay in deciding the proceedings before the JMFC Court at Pune. 10 of 11
21. In view of the above, the Application stands allowed alongwith the above directions in terms of prayer clause ‘b’ which reads thus:- “b. That this Hon’ble Court be pleased to transfer the hearing of Regular Criminal Case No.109 of 2017 Pending at the file of Ld. Judicial Magistrate first class, court at Koregaon, Dist – Satara arising out of the F.I.R. No. 50 of 2017, to the court of Ld. Judicial Magistrate first class, Pune.”
22. Criminal Application is disposed. [ MILIND N. JADHAV, J. ] Ajay 11 of 11 TRAMBAK UGALMUGALE