Bharti Mishra vs State of Madhya Pradesh

S.K. Palo, J.—The petitioner has filed this application under Section 407 of Cr.P.C for issuing directions to transfer the Criminal Case No. 92/2011 pending in the Court of JMFC Ganjbasoda to any competent Court of Morena, Datia or Gwalior.

Factual matrix of the case lies in a narrow compass. Petitioner is wife of non-petitioner No. 2 Ashish Mishra. Petitioners No. 3 and 4 are the parents of non-petitioner No. 2. Petitioners No. 5 and 6 are sisters of Non-petitioners No. 2. The marriage of the petitioner was solemnized with non-petitioner N0.2 in the year 2006. It is alleged that there was demand of dowry and petitioner was subjected to cruelty and harassment. Therefore, the petitioner lodged a report Annexure P1 with Police Station Basoda District Vidisha. The non-petitioner No. 2 to 6 are the residents of Ganj Basoda. Charge sheet Annexure P/2 was filed and criminal proceeding is pending before the JMFC Ganj Basoda. Case is now pending for prosecution evidence.

It is alleged that the petitioner had filed an application for maintenance under Section 125 of Cr.P.C before in the Court at Datia. On 18.10.2012 when she had gone to the Court, the non-petitioner No. 2 abused and assaulted her, stating that why she has filed criminal case against him. He also threatened that he will not spare her. She lodged a FIR at Kotwali Datia marked which is marked as Annexure P/3.

She had gone to Ganjbasoda Court for collecting the certified copies of certain documents on 15.1.2014. There again the non-petitioner threatened the petitioner of her life, if she comes to the Court Ganjbasoda. Again a report Annexure P/4 was lodged on the same day.

Petitioner is praying for transfer of the case from Ganjbasoda to any Court at Morena, Datia or Gwalior feeling that there is danger to her life because of the threats received from the non- petitioner No. 2.

Per contra, the non-petitioner denied all the averments and submitted that the petitioner suppressed material facts. The petitioner is a politically sound person. Her relatives are in the Police Department, who lives in Basoda. She does not require any protection. This application has been filed on false grounds. No ground exists for transfer of case, as there is no threats of any kind from the non-petitioner.

Non-petitioners have also filed certain documents and tried to impress upon the Court, that a compromise was entered into by the petitioner and non-petitioner No. 2 on 19.11.2013 before the Additional District Judge, Ganjbasoda, which is marked as Annexure R/1. The same has been recorded in the order sheet dated 30.11.2013. Subsequently, she rescued reused from the settlement and wanted to delete certain portions of the settlement Annexure R/1. Non-petitioner has been very cordial and wants to settle the matter amicably. Therefore, the present petition does not have any basis.

Learned counsels for both parties submitted case laws; The Public Prosecutor Vs. D. Venkataranga Reddy, , does not have any application in this case. Facts are not at all similar.

Similarly, the case of M.S. Prakasa Rao Vs. State of Andhra Pradesh, is also not applicable, because there is no allegation of fair trial in the present case.

Similarly, "Mangilal Vs. State of M.P" reported in 1993 (1) MPWN Short Note 11 is also not applicable in this case, because there is no ground of harassment by police in the present case.

Baljit Singh and Another Vs. State of Jammu and Kashmir and Others, is also not applicable in this case. For the reason that the Hon''ble Supreme Court has refused to transfer the case on the ground of large number of witnesses of a particular place are to be examined. Therefore, the Court which had the jurisdiction to try the case has been directed to continue the trial.

In the present case, it is observed that the complainant / petitioner apprehends danger for her life if she goes to Ganjbasoda for conducting the case. As she is residing at Datia with her parents it seems that there is reasonable and probable apprehension that may she may be assaulted, keeping in view the earlier incidents and threats reported in Annexures P/3 and P/4.

In Smt. Hina Vs. State of M.P. and Others, , in which coordinate Bench of this Court has held that''

"Code of Criminal Procedure (2 of 1974), Section 407(1) - (I) Power of High Court to transfer cases - Petitioner was married to the respondent No. 3 Marriage had taken place at Gwalior where the petitioner resided - After the marriage she went to reside with her husband at Shivpuri- Her husband / respondent No. 3 and father -in-law / respondent No. 4 maltreated her- They asked to bring dowry- Thereafter, petitioner lodged a report at Mahila Police Station, Gwalior against the respondents No. 3 and 4 for the offence under Section 498-A of the IPC and Sections 3 and 4 of Dowry Prohibition Act - Mahila Police Station Gwalior registered the offence and sent the case to the Police Station, Dehat Shivpuri for further investigation - After completing the investigation the Police Station, Dehat Shivpuri filed the challan in the Court of CJM, Shivopuri - Hence, petitioner filed this petition praying for transfer of the Criminal Case pending in the Court of CJM, Shivpuri to the Court of CJM, Gwalior - Held- it is purely the subjective satisfaction of the High Court as to whether the case deserves to be transferred from one Criminal Court to another Criminal Court- Transferee Court is also competent to try such offence - Five out of six witnesses are residents of Gwalior - Petition allowed".

Similarly in Jhebarmal Vs. State of Rajasthan reported 1990 (3) Crimes 53, it is held that;

"Code of Criminal Procedure, 1973 - Section 407 - A Criminal Case related to FIR No. 136/ 11987 is pending trial in the Court of ACJM, Neem-Ka-Thana- Accused has filed an application for transfer of the said case to the court of Munsiff Magistrate, Srimadhopur, on the ground of convenience - The occurrence took place at , and the accused and the witnesses belong to, Dhani-Bada-Khet (Mau) which is hardly at a distance of 8 kms from Srimadhopur, whereas Neem- ka-Thana is at a distance of 70 Kms. From that place- The transfer of the case to Srimadhopur will be convenient to both the parties - Whether the prayer deserves to be allowed" ? Yes.

The learned counsel for the non-petitioner, relied on Smt. Kiran Soni Vs. Ramesh Kumar Soni and Others, in which it is held that "transfer sought on the ground of apprehension of danger of life protection may be sought. No ground to transfer the case is made out" In that case the petitioner did not sign the affidavits filed by the petitioner nor any one signed in the same and no FIR was lodged by the petitioner. Therefore the averments were not substantiated.

In the present case, the petitioner has filed copies of FIR and affidavit which is duly signed by the petitioner, therefore, the present case is distinguishable.

In the case of Smt. Payal Chouhan alias Varsha Vs. State of M.P. and Others, relied by the non-petitioner, the allegation was regarding "police authority" to influence the respondents, the ground on which transfer was sought not found acceptable by the coordinate Bench of this Court. Therefore, the present case is also distinguishable.

No doubt the petitioner is a lady, she has to travel to Basoda for deposing her statement once in this case. Therefore, transferring the case to another Session''s division is not warranted. It is of fundamental importance that justice should manifestly and undoubtedly be seen to be done. If the witness is not able to reach the Court or even able to reach the Court under the threat, it would be certainly effect adversely in deposing the statement in Court.

Keeping in mind, that it would be appropriate that the case be transferred to head quarter of the same division as the apprehension of the complainant is not unfounded.

Consequently, this petition is partly allowed. Criminal Case No. 92/11 pending in the Court of JMFC, Ganjbasoda, arising out of Crime No. 982/2010 registered at P.S. Basoda for the offence punishable under Sections 498-A, 323/ 34 of IPC Section 3/ 4 of Dowry Prohibition Act is transferred to the Court of CJM Vidisha for disposal in accordance with law.