The de-facto complainant in Cr.No.45/2007 registered on the file of All Women Police Station, Dindigul, which is now pending on the file of the learned Judicial Magistrate No.2, Dindigul as C.C.No.238/2008, has filed this criminal original petition under section 407 Cr.P.C for the transfer of the above said criminal case from the file of the learned Judicial Magistrate No.2, Dindigul to any other court at Chennai. The petition was initially filed only against the Inspector of Police, All Women Police Station (the investigating officer). However, the husband of the petitioner, who figures as the first accused in the above said criminal case filed a petition (M.P.No.2 of 2009) and got an order for getting impleaded as respondent No.2 in this petition. Thus the present petition, as of now is one against the investigating officer and the first accused arrayed as respondent Nos.1 and 2 respectively.
2. The petitioner has filed the criminal original petition for transferring the calendar case pending on the file of the learned Judicial Magistrate No.2, Dindigul on the following grounds:-
(i) The petitioner along with her parents is residing at Chromepet, Chennai and hence it shall be convenient for her to have the case transferred to a court at Chennai.
(ii) The petitioner had received threats from the accused persons to withdraw her complaint and hence she was forced to send a further complaint to the Superintendent of Police, Dindigul District, who in turn forwarded the same to the Inspector of Police, All Women Police Station, Dindigul. The Inspector of Police, All Women Police Station called her twice for enquiry, subsequent to which also the petitioner received threatening calls from her husband (the second respondent herein) and his brother Sekar.
3. The learned Government Advocate (Crl.Side) representing the first respondent (Investigating Officer) and the learned counsel for the second respondent (impleaded party) came forward to submit their arguments without filing separate counter affidavits and requesting that the affidavit filed in support of the impleading petition, namely M.P.No.2 of 2009 could be treated as the counter affidavit in the criminal original petition.
4. The arguments advanced by Mr.R.Rajan, learned counsel for the petitioner, by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) representing the first respondent (investigating officer) and by Mr.S.Shankar, learned counsel for the second respondent (accused No.1) were heard. The relevant records were also perused.
5. The de-facto complainant in C.C.No.238/2008 on the file of the learned Judicial Magistrate No.2, Dindigul is the petitioner in the criminal original petition seeking transfer of the said case from the file of the said Magistrate to any other court at Chennai. She had lodged a complaint against her husband (the second respondent herein) and five of his relatives alleging commission of cruelty punishable under
section 498-A IPC and criminal intimidation punishable under
section 506(i) IPC. The said complaint was lodged on 21.12.2007 and the same was registered as Cr.No.45 of 2007 on the file of All Women Police Station, Dindigul. The investigation resulted in the submission of a positive final report in the above said case against the second respondent herein and five others. The said offences were taken cognizance of by the learned Judicial Magistrate No.2, Dindigul, who took the charge-sheet on file as C.C.No.238/2008.
6. It transpires the second respondent herein (husband of the petitioner) filed a petition for divorce before the Sub-court, Dindigul as HMOP No.258/2007. The said HMOP is also pending. Contending that she was threatened by her husband (second respondent herein) when she went to Dindigul to make appearance in the above said HMOP before the Sub-court, Dindigul that she would be killed, if she ventured to come to Dindigul; that she was also threatened by the second respondent and his brother Sekar over phone that she must withdraw the complaint given against the second respondent and that she feared danger to her life if she would go to Dindigul, the petitioner herein sent a complaint on 25.08.2008 to the Superintendent of Police, Dindigul District, Dindigul. The said complaint was forwarded to the Inspector of Police, All Women Police Station, Dindigul for necessary action. It is submitted on behalf of the 2nd respondent that the Inspector of Police, All Women Police Station, on an enquiry came to the conclusion that there was no truth in the allegation made therein and hence further actions on the complaint were dropped and that after having failed in her attempt to implicate the second respondent, his brother Sekar and others in yet another criminal case for an offence of criminal intimidation, the petitioner has chosen to come forward with the present criminal original petition seeking transfer of the criminal case C.C.No.238/2008 pending on the file of the learned Judicial Magistrate No.2, Dindigul to any other court at Chennai.
7. According to the averments made in the affidavit of the petitioner, the petitioner and her parents are living at Chennai and the same is cited as the additional reason for seeking transfer of the case from Dindigul to Chennai. The petitioner's prayer seeking transfer of the criminal case is resisted on three grounds.
i) The petition is an abuse of process of court as the petitioner has sought an order of transfer of the criminal case behind the back of the accused persons without making them as parties to the criminal original petition seeking transfer;
ii) The convenience of the de-facto complainant alone shall not be the deciding factor and the comparative hardship that may be caused to the accused persons and other witnesses should also be taken into consideration;
and
iii) The petitioner has furnished a false address as if she is residing at Chennai for the purpose of seeking the transfer of the case with the intention of protracting the case, as the petitioner herself is confident that the trial will end in acquittal of the accused persons.
8. The court from which the case is sought to be transferred comes under the jurisdiction of the Madurai Bench of the Madras High Court. Therefore, there is possibility of contending that the Principal Bench of the Madras High Court shall have no jurisdiction to entertain a petition seeking transfer of a case pending before a court which comes under territorial jurisdiction of the Madurai Bench of the Madras High Court. However, the said question was not canvassed by any one of the parties. All of them concede that the present petition can be entertained by the Principal Bench at Chennai. As there is no objection for entertaining the petition, this court does not embark upon an enquiry as to the question of jurisdiction. But, the learned counsel for the second respondent has advanced an argument that the filing of the petition in the Principal Bench of the Madras High Court seeking transfer of a case pending on the file of a court at Dindigul in preference to the Madurai Bench of the Madras High Court, will show lack of bonafide on the part of the petitioner and that it shall be obvious from the same that the intention of the petitioner is to cause hardship and harassment to the second respondent and the other accused persons.
9. Admittedly, the case was registered and investigated at Dindigul. The trial court, in which the criminal case is pending is also functioning at Dindigul. The accused persons, totally six in number, are residing at Dindigul. When that is so, the petitioner has filed this petition seeking transfer of the case from Dindigul to Chennai, that too, without making any one of the accused persons as party respondents and arraying the investigating officer alone as the respondent. In fact, the investigating officer cannot be said to be having any interest adverse to that of the petitioner, the de-facto complainant, based on whose complaint the FIR was registered. It should also be noticed that the investigation resulted in the submission of a positive final report and based on the police report, the criminal case was instituted against the second respondent and five others, who are the relatives of the second respondent. Naturally, the accused persons, rather than investigating officer, shall be the person affected by any order passed in the petition seeking transfer of the case. A criminal case pending before a competent court having jurisdiction to try the same, cannot be transferred from the court of ordinary jurisdiction to any other court without affording an opportunity to the accused persons, of being heard. Transferring the criminal case without affording an opportunity to the accused of being heard, shall amount to failure of audi alteram partem principle of the natural justice. Since the petitioner has chosen to file the petition seeking transfer of the criminal case without making the accused persons as parties to the criminal original petition, this court has to accept the contention of the learned counsel for the second respondent that there is lack of bonafide on the part of the petitioner in seeking transfer of the case from the present trial court.
10. The second respondent has also come forward with a contention that the petitioner has furnished a false address in order to enable her to seek transfer of the case from Dindigul to Chennai. It is the clear contention of the second respondent that as a preparatory measure for filing a petition seeking transfer of the criminal case to Chennai, the petitioner chose to send a complaint by post to the Superintendent of Police, which was in turn forwarded to the Inspector of Police, All Women Police Station, Dindigul; that the police, on enquiry, found not only the allegations made in the complaint sent to the Superintendent of Police false, but also the address given therein to be false and that the petitioner was warned by the police not to lodge such false complaint. It is the contention of the second respondent that the petitioner is not residing at Chennai and in fact she resides in her native place at Vathalagundu in Dindigul District and that the petitioner, in order to create a documentary evidence for filing the present transfer petition, had sent such a false complaint to the Superintendent of Police. When such is the contention, the petitioner should have produced documents in proof of her residence at the address given in the petition. No document in proof of her residence at the address given in the petition has been produced by the petitioner. The fact that the petitioner had chosen to file the petition against the investigating officer alone, without making the accused persons parties to the petition seeking transfer of the case and the further fact that the petitioner has not chosen to produce any document in proof of her residence in the address given in the petition in the light of the contention of the second respondent that the petitioner is not residing therein, will probablise the case of the second respondent that the present petition for transfer of the criminal case is an abuse of process of court.
11. Coming to the question of convenience of the parties and the relative hardships that may be caused to them, this court is of the considered view that the hardship that may be caused to the petitioner if the case is allowed to be tried at Dindigul will be comparatively less than the hardship that may be caused to the second respondent and the other accused persons if the case is transferred to a court at Chennai. Except the petitioner and her parents, all other witnesses are from Dindigul. Apart from that, the accused persons, six in number, are admittedly residing in Dindigul. It should also be borne in mind that one of the accused persons is a female residing in Dindigul. The petitioner and her parents need not be present in the trial court on all the hearing dates, except on service of witness summons directing appearance on a particular day for their examination. The position of the accused persons is not the same as that of the witnesses. They have to appear on each and every date of hearing. Otherwise orders under
Section 317 Cr.P.C should be obtained on such hearing dates when the particular accused may not be in a position to appear personally. It is the further fact that the de-facto complainant shall not have the necessity to appoint a counsel. On the other hand, the accused persons, in order to effectively defend themselves, they have to engage a counsel. Having engaged a counsel spending some amount at Dindigul, they have to once again engage a counsel incurring considerable expenses, if the case is transferred to Chennai. Besides such expenditure for engaging a defence counsel, they shall also have to incur expenditure for undertaking travel from and to Dindigul for each and every hearing, which will cause loss of time and personal inconvenience. When all these aspects are taken into consideration, this court has to necessarily come to the conclusion that the balance of convenience lies in favour of the accused persons and not in favour of the petitioner herein.
12. For all the reasons stated above, this court comes to the conclusion that there is no merit in this petition and the petition deserves to be dismissed. Accordingly, the petition is dismissed. Consequently, M.P.No.1 of 2009 is also dismissed.
asr To
1.The Inspector of Police All Women Police Station Dindigul (Cr.No.45 of 2007)
2.The Public Prosecutor High Court Madras 600 104