Priyesh Dubey vs Riya Dubey

The petitioners have fled this petition under Section 407 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’) seeking transfer of case i.e. M.J.C. No.1448/2019 (titled as Riya Dubey Vs. Priyesh Dubey and Ors.) fled by the respondent herein for ofence punishable under Section 9(b) and 37(2)(c) of the Protection of Women against Domestic Violence Act, 2005, (for short ‘the D.V. Act’) pending before the learned Judicial Magistrate First Class, Bemetara, to the learned Judicial Magistrate First Class at Durg, District Durg (C.G.)

Brief facts, as projected by the petitioners, are that the petitioner No.1 and respondent are husband and wife, their marriage was solemnized on 22.02.2019 at Durg, C.G., according to the Hindu rites and custom. The respondent’s parental house is situated at village Dhangaon, P.S. Nawagarh, Tahsil and District Bemetara (C.G.). It has been alleged by the respondent that after passage of one week from the date of marriage, she was being subjected to cruelty and thereby caused mental agony, which culminated in fling of complaint against the petitioners herein under Section 9(b) and 37(2)(c) of the D.V. Act, which is pending before the Court of learned Judicial Magistrate First Class, Bemetara (C.G.).

Learned counsel for the petitioners would submit that the petitioners have a reasonable threat to their well being at the hands of respondent, her family members and their accomplices at Bemetara, which renders it difficult for the petitioners to attend and conduct the proceedings before the learned Judicial Magistrate First Class, Bemetara. The petitioners have also fled complaint against the respondent and her family members at Bemetara, which has been taken on record under Section 155 of the Cr.P.C. Learned counsel further submits that the petitioner Nos. 2 and 3 are senior citizen aged around 67 and 61 years respectively, petitioner No.2 is sufering from various ailments including diabetes and it is very difficult for him to attend the proceeding after traveling all the way to Bemetara. It is next submitted that the respondent herein had also approached before this Court for transfer of Criminal Case No.5812/2020 for the ofence under Section 498-A of IPC, pending before the learned Chief Judicial Magistrate, Durg to Chief Judicial Magistrate, Bemetara, vide Transfer Petition (Cr.) No. 10/2022, which was rejected by this Court vide order dated 18.07.2022. The case under Section 498-A of IPC is pending adjudication before the learned Chief Judicial Magistrate, Durg. Therefore, this petition is fled for transfer of M.J.C. No.1448/2019 pending before Chief Judicial Magistrate, Bemetara, to the Court of Judicial Magistrate First Class, Durg. In support of his submission, learned counsel placed reliance on the decision of Hon’ble Supreme Court in the matter of N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha reported in 2022 SCC OnLine SC 1199 and decision of this Court in the matter of Anchal Agrawal Vs. Prince Agrawal reported in 2022 SCC OnLine Chh 1359.

On the other hand, learned counsel for respondent-wife has strenuously opposed the prayer of the petitioners and submits that the Court at Bemetara has jurisdiction to try the case of D.V. Act. The respondent is lady and merely because it is inconvenient for the petitioners to attend the court proceeding pending at Bemetara, this petition cannot be allowed. In support of submission, learned counsel placed reliance on the decision of this Court in the matter of Sushrut Das and Others Vs. Swati Das (Transfer Petition (Cr.) Nos. 18 & 19 of 2019 , decided on 17.06.2022).

I have heard learned counsel for the parties and perused the material available on record.

This Court while deciding the Transfer Petition (Cr.) No. 10 of 2022 fled by respondent herein for transfer of Criminal Case No.5812/2020 pending in the Court of Chief Judicial Magistrate, Durg, to the Court of Chief Judicial Magistrate, Bemetara, held in para 6 that respondent Nos. 2 and 3/petitioner Nos. 2 and 3 herein are aged persons, aged about 62 years and 55 years, all the important witnesses are from District Durg and dismissed the transfer petition fled by respondent-wife.

In the matter of Anchal (supra), this Court has observed in para 9 and 10, which reads thus:-

“9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance of life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wife’s convenience which must be looked at while consider transfer.

Further when two or more proceedings are pending in diferent Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and confict of decisions.”

Admittedly, the petitioners are facing two criminal trial, one under Section 498-A of IPC before the Court of learned Chief Judicial Magistrate, Durg, and another before the learned Chief Judicial Magistrate First Class, Bemetara under D.V. Act, & as has been observed by co-ordinate Bench in TPCR No.10/2022 that important witnesses of case fled by the petitioners is from Durg. That apart, the petitioner Nos. 2 and 3 are senior citizen and sufering from age related physical ailment. Being senior citizen it would be highly inconvenient for the petitioner Nos. 2 and 3 to travel from Durg to Bemetara and vice versa especially when they have age related physical ailments, which is evident from the medical document fled in the instant petition.

That apart, Hon'ble Supreme Court in the matter of N.C.V. Aishwarya (supra), has observed that when two or more proceedings are pending in diferent Courts between the same parties, they should be tried together by the same Judge to avoid multiplicity of trial.

The case law relied upon by the learned counsel for respondent in the matter of Sushrut Das (supra) would be of no use being distinguishable on the ground of facts.

Thus, having ascertained the legal position, as aforestated and keeping in view the law laid down in N.C.V. Aishwarya (supra), and particularly, keeping in view the fact that the petitioner Nos. 2 and 3 are senior citizen having age related ailments, the instant transfer petition deserves to be allowed.

The case i.e. MJC No. 1448/2019 (Riya Dubey Vs. priyesh Dubey & Ors.) pending on the fle of learned Judicial Magistrate First Class, Bemetara, is transferred to the fle of learned Judicial Magistrate First Class, Durg at District Durg for its trial/disposal in accordance with law. The District and Sessions Judge, Bemetara is directed to transmit the record of the above case to the District and Sessions Judge, Durg, District Durg (C.G.) forthwith. The respondent to attend the criminal proceeding at Durg for recording the evidences of witnesses and expenses towards travelling & other expenses will be paid by the petitioner No.1 herein as observed in para 6 of TPCR No.10/2022.

Parties are directed to appear before the concerned trial Court at Durg on 16th August, 2023.