Court No. - 79
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 104 of 2019 Applicant :- Smt. Anamika Singh Opposite Party :- State Of U.P. And 4 Ors.
Counsel for Applicant :- Rakesh Kumar Singh,Adil Jamal Counsel for Opposite Party :- G.A.,Ram Sajiwan Mishra
Hon'ble Ram Krishna Gautam,J.
This application under Section 407 of Cr.P.C. has been filed by Smt. Anamika Singh against State of U.P. and 4 others, with a prayer for transferring Criminal Case No. 10606 of 2009, arising out of Case Crime No. C-5/2009 of P.S. Naubasta, District Kanpur Nagar, under Sections 498-A, 323, 504 & 506 I.P.C. and Section 3/4 of D.P. Act (State Vs. Sanjiv Kumar Singh and others).
Learned counsel for the applicant argued that applicant is residing at Hamirpur and there she has filed a case for maintenance under Section 125 of Cr.P.C., a case before Court of Magistrate under provision of Domestic Violence Act, a case regarding cruelty pending at the Court of Magistrate. The opposite parties are appearing in those cases whereas present case is pending at Court of IInd A.C.M.M., Kanpur Nagar and applicant is facing trouble in doing 'pairavi' of above case at Kanpur Nagar, for her convenience, the same be also transferred to Hamirpur.
Law of Apex Court in cases of Nishapriya Vs. R.J. Sathish Kumar LAWS(SC) 2013 11 85, Naina Narang Vs. Rohit LAWS(SC) 2017 10 87 and Shalini Amit Mitrani Vs. Amit Mitrani LAWS(SC) 2008 11 43, has been pressed.
Learned AGA for the State has vehemently opposed this application with contention that present case is pending at Kanpur Nagar and husband along with his mother and other family members are accused in this case. The present case is a State case, requiring no presence of informant, on each and every date. Rather, the attendance of witness is required on the date of evidence recording. But this application is with intention to harass husband and in-laws, whereas a case of offence of cruelty coupled with those sections of present section has already been filed at Hamirpur, against opposite parties, and the same is pending at trial. The family members of applicant are mussel power at Hamirpur, creating danger to opposite parties in appearing at Hamirpur, hence, this application be rejected.
Having heard learned counsels for both sides and gone through the application, affidavit filed in support of application, counter affidavit and rejoinder affidavit, it is apparent that marriage was performed at Hamirpur but husband and in-laws are resident of Kanpur Nagar from where applicant left for her parental house at Hamirpur. This criminal case was filed by applicant herself at Kanpur Nagar. She has filed another case for same offence at Hamirpur too. Other cases are pending at Hamirpur but two ladies are accused in this case pending at Kanpur Nagar and by transferring above case at Hamirpur, these opposite party Nos. 2 to 5 including two ladies will required to be at Hamirpur, on each and every date, whereas applicant and other witnesses are to be at Kanpur Nagar, only after summoning for evidence by the Court. They need not to attend the Court on each and every date, because of being a State case.
The law cited are regarding matrimonial cases whereas present case is apparently a case of criminal offence having different fact than those cases.
Section 407 as quoted below:
"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."
It is not a right of any party rather a jurisdiction of this Court regarding transferring of cases and whenever it is made to appear to High Court that a fair and impartial enquiry or trial cannot be held in any Criminal Court subordinate thereto or that some question of law of unusual difficulty is likely to arise or 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 for transfer. Meaning thereby, general convenience of the parties and witnesses are to be seen and in the present case general convenience of parties are for not transferring this case. Hence, this application merits its rejection.
The present application stands rejected.
Order Date :- 26.8.2019 Kamarjahan