Anil Vashisht and Others vs State of Himachal Pradesh and Another

V.K. Sharma, J.—The petitioners have filed the present petition u/s 407 of the Code of Criminal Procedure, 1973 (in short ''CrPC'') for transfer of Criminal Case No. 22-2 of 2009, titled State of H.P. v. Anil Vashisht and others, pending in the Court of the learned Chief Judicial Magistrate, Kinnaur at Reckong Peo to any other Court in Shimla. Petitioner No. 1 and respondent No. 2 are husband and wife, respectively. Co-petitioners No. 2 to 5 are relatives of the husband. A case u/s 498A and 506 read with Section 34 of the Indian Penal Code (in short ''IPC'') has been registered against the petitioners at Police Station, Pooh, District Kinnaur, vide FIR No. 21 of 2008, dated 24-08.2008. The trial, which has since commenced, is now stated to be fixed for 23.02.2013 for appearance of the petitioners (accused).

The allegations relating to cruelty and criminal intimidation relate mainly to the period while the husband was posted at Pooh in District Kinnaur as a Junior Engineer and the wife was also residing with him there. Indisputably, whereas the members of the accused party belong to District Bilaspur, the wife (complainant) belongs to District Solan. A perusal of the list of witnesses, Annexure P-6, relied upon on behalf of the prosecution in support of its case would go to show that out of thirteen witnesses five witnesses, including the complainant, mentioned at serial Nos. 1 to 3, 7 and 9 belong to Solan. The witness mentioned at serial No. 5 by name Ms. Reva Sharma, who is daughter of petitioner No. 1 and respondent No. 2, was at the relevant time studying in District Kinnaur and is stated to be presently residing and receiving education at Solan. Thus, out of thirteen witnesses, six witnesses are from District Solan. Similarly, the witness mentioned at serial No. 4, namely, Smt. Satish Sharma, is resident of Sanjauli, Shimla. Another witness at serial No. 8, Smt. Pawana Kumari, belongs to District Bilaspur. All the remaining witnesses at serial Nos. 6, 9 to 13 are based in Kinnaur, out of whom, except the one at serial No. 6, Shri Sashi Kant Chaudhary, all other are official police witnesses of investigation.

In support of their prayer for transfer of the case, the petitioners have relied upon a judgment rendered by the Hon''ble Supreme Court reported as Mrudul M. Damle and Another Vs. C. B.I., New Delhi, Paras 10 and 19 of the judgment, being relevant, are extracted below:

The material facts relevant for the determination of the question of expediency are not in dispute inasmuch as the respondent do not dispute that the charge-sheet enlists 92 witnesses, 88 out of whom are from outside Delhi and from different places in Maharashtra. It is also not in dispute that Petitioner 1 is a Chartered Accountant practicing in Thane, Petitioner 2 who is the only other accused in the case who is currently posted at Vapi in the State of Gujarat which is in comparison to Delhi closer to Thane. It is in the light of those admitted facts obvious that the trial in Rohini Court at Delhi would be inconvenient not only to the accused persons but also to almost all the witnesses cited by the prosecution except four who may be in or around Delhi. The case is even otherwise not Delhi-centric in the true sense inasmuch as the only reason why the FIR was registered in Delhi was the fact that Petitioner 2 was posted in Delhi during a part of the check period.

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There is no gainsaying that a trial at Delhi in which witnesses are expected to travel from Maharashtra is bound to linger on for years. Expeditious disposal of the trial is also a facet of fairness of the trial and speedy trial is in fact a fundamental right as observed by this Court in Hussainara Khatoon (1) v. State of Bihar. When witnesses from distant places are sought to be summoned, early conclusion of the trial becomes much more difficult apart from the fact that the prosecution will have to bear an additional burden by way of traveling expenses of the official and non-official witnesses summoned to appear before the Court.

In the facts and circumstances of the case and on an overall view of the matter, while relying upon the legal position enunciated by the Hon''ble Supreme Court in Mrudul M. Damle and another v. Central Bureau of Investigation, New Delhi (supra) the prayer of the petitioners for transfer of the case which appears to be genuine and justified as the same would ultimately go to advance the interests of justice, is allowed. Consequently, Criminal Case No. 22-2 of 2009, titled State of H.P. v. Anil Vashisht and others, arising out of FIR No. 21 of 2008, dated 24.08.2008, under Sections 498-A and 506 read with Section 34 IPC of Police Station, Pooh, District Kinnaur, pending trial in the Court of the learned Chief Judicial Magistrate, Kinnaur at Reckong Peo, is ordered to be transferred from the files of the said Court to that of the Court of the learned Chief Judicial Magistrate, Shimla, H.P., which is more or less equidistant from the places of residence of majority of the witnesses and the parties, for disposal in accordance with law.

Let copies of this judgment be sent to the Court of the learned Chief Judicial Magistrate, Kinnaur at Reckong Peo and the transferee Court for information and compliance. As respondent No. 2 (complainant) has not put in appearance despite service of notice, let a copy of this judgment be also sent to her for information. The petition, so also pending application(s), stand disposed of in the above terms.