Mumtaz Alias Monu vs State Of H.P. And Others

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking the transfer of the case titled State of H.P. Vs. Tanvir Sheikh and others, arising out of FIR No. 411 of 2016, dated 27.12.2016, from the Court of learned Additional Chief Judicial Magistrate, Paonta Sahib, District Sirmour, H.P. to the Court at Nalagarh. It has been asserted that the marriage between the petitioner and respondent no.2 was solemnized on 22.2.2014. Differences arose between the parties and the petitioner filed an FIR No. 411, dated 27.12.2016, under Section 498-A of IPC. The petitioner is residing in her paternal home. Her husband filed a suit for dissolution of marriage, which is still pending. A civil suit for injunction was also filed by respondent no. 4 as a counterblast to the FIR. The petitioner filed a petition under the Domestic Violence Act. The petitioner is a struggling Advocate. She has no source of income. Respondent No.2 is a well-settled Lawyer having sufficient income. The petitioner had to file a petition under Section 125 of Cr.P.C. at District Court, Mohali. All the dowry articles of the petitioner are with the respondents. She filed a petition at Sunam under the Domestic Violence Act. The police prepared the challan. The petitioner went to the Court where respondent no. 2 stated that nothing would happen to him as the Advocates of Paonta Sahib Bar Association are his friends. He also stated that his cases are not likely to be taken in future. 10-15 Advocates, who were friends of respondent no. 2 appeared on behalf of the respondents to put pressure upon the petitioner. The petitioner is unable to attend the Court premises and she apprehends a harm to her. Hence, the petition.

The petition is opposed by filing a reply by respondent no. 1, taking preliminary objection regarding the lack of maintainability. The contents of the petition were denied on merits. It was asserted that FIR No. 411/2016 was registered at the instance of the petitioner at Police Station, Paonta Sahib. Challan has been submitted to the Court and is listed for consideration on charge. There is no merit in the petition; hence, it was prayed that the same be dismissed.

A rejoinder denying the contents of the reply and affirming those of the petition was filed. No separate reply was filed on behalf of the respondents no. 2 to 4.

I have heard learned counsel for the parties and have gone through the records carefully.

It was laid down by the Hon’ble Supreme Court in Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204 that the Court is justified in transferring the matter from one Court to another when the public confidence in the fairness of a trial is seriously compromised. It was observed:-

The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.

In the G.X. Francis case [AIR 1958 SC 309: 1958 Cri LJ 569] this Court felt that where public confidence in the fairness of the trial is likely to be seriously undermined under the circumstances of the case, a transfer petition could be allowed. On finding that “there is uniformity of testimony from both sides about the nature of surcharged communal tension in that area”, the Court found that the local atmosphere was not conducive to a fair and impartial trial which justified a good ground for transfer. The Court rejected the contention of the petitioner therein regarding the wild allegations made to the effect that no court in the State of M.P. would be unbiased or impartial for dispensing justice. In the peculiar facts and circumstances of the case, the trial was transferred to an adjoining court. The mere existence of a surcharged atmosphere without there being proof of inability to hold a fair and impartial trial cannot be made ground for the transfer of a case. The alleged communally surcharged atmosphere has to be considered in light of the accusations made and the nature of the crime committed by the accused seeking transfer of his case. It will be unsafe to hold that as and when accusations are made regarding the existence of a surcharged communal atmosphere, the case should be transferred from the area where the existence of such a surcharged atmosphere is alleged. This Court had not concluded so generally in Francis's case [AIR 1958 SC 309: 1958 Cri LJ 569] as has been argued before us on behalf of the petitioner.

Similarly, it was held in Amarinder Singh v. Parkash Singh Badal, (2009) 6 SCC 260 that before ordering the transfer, there should be reasonable apprehension of a miscarriage of justice or likelihood of bias. The mere allegation that justice will not be done is not sufficient to transfer a case to some other Court. It was observed:-

In K. Anbazhagan v. Supdt. of Police [(2004) 3 SCC 767: 2004 SCC (Cri) 882] this Court had an occasion to consider the transfer of a criminal trial from the State of Tamil Nadu to another State, a two-Judge Bench, after going into the factual details, particularly, the change of Government, attitude of the Public Prosecutor and finding that there is justifiable and reasonable apprehension of miscarriage of justice as well as likelihood of bias, allowed the transfer petition pending on the file of the XIth Additional Sessions Judge (Special Court 1), Chennai, State of Tamil Nadu to the State of Karnataka. While directing the transfer this Court permitted the State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka to appoint a senior lawyer having experience in criminal trials as Public Prosecutor to conduct those cases.

In the same order in the Anbazhagan case [(2004) 3 SCC 767: 2004 SCC (Cri) 882] the Court observed that the Public Prosecutor will be at liberty to apply that the witnesses who have been recalled and cross-examined by the accused, who have resiled from the previous statement, may be again recalled. The Court further observed that: (SCC p. 787, para 34)

“34. (f) … The Public Prosecutor would be at liberty to apply to the court to have these witnesses declared hostile and to seek permission to cross-examine them.”

In Abdul Nazar Madani v. State of T.N. [(2000) 6 SCC 204: 2000 SCC (Cri) 1048] the issue dealt with was for transfer of a criminal case from one State to another. In the said decision it was reiterated that: (SCC p. 210, para 7)

“7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. [However,] no universal or hard-and-fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition.”

After perusing the figures furnished and considering all the materials, it was concluded that the transfer petitions were totally misconceived and dismissed the same.

In Jayendra Saraswathy Swamigal (II) v. State of T.N. [(2005) 8 SCC 771 : (2006) 1 SCC (Cri) 1] this Court has held that: (SCC p. 790, para 22)

“22. … If there is reasonable apprehension on the part of a party to a case that justice may not be done, he may seek transfer of the case.”

It also held that: (SCC p. 790, para 22)

“22. … The apprehension entertained by the party must be a reasonable one and the case cannot be transferred on a mere allegation that there is apprehension that justice will not be done.”

It is a well-established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political mandate of the informant or the complainant. However, if justifiable and reasonable apprehension of a miscarriage of justice and the likelihood of bias is established, undoubtedly, the proceeding has to be transferred elsewhere by the exercise of power under Section 406 CrPC.

For a transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. On the other hand, mere allegations that there is apprehension that justice will not be done in a given case do not suffice. In other words, the court has further to see whether the apprehension alleged is reasonable or not. The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension.

Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC.

However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is a sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one.

In the present case, the petitioner asserted that she was pressurized by the friends of respondent no. 2 during her visit to the Court; however, she has not mentioned any date on which date she had attended the Court. It is also not shown that she had made any complaint to the Presiding Officer or the police regarding the harassment. She asserted that respondent no. 2 stated that he would not allow the completion of the proceedings expeditiously. She has not filed the order sheets of the Court to establish that there is a delay in the progress of the Trial. Therefore, there is nothing on record to substantiate her apprehension that she will not get justice or there is any likelihood of an unfair trial.

The petitioner is a witness and she is entitled to protection while appearing in the Court. It is not her case that no protection was afforded to her. The police will certainly take action to provide adequate security to the petitioner to enable fearlessly in the Court if she so requires. Hence, the apprehension that the petitioner is likely to be intimidated does not have any force.

In view of the above, the transfer cannot be ordered in the present case. Consequently, the present petition fails and the same is dismissed.

The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.