Smt. Hina vs State of M.P. and Others

Maithli Sharan, J.—This is a Criminal Miscellaneous Petition u/s 407 of the Code of Criminal Procedure filed by the wife against the respondent - inter alia, her husband and her father-in-law, praying for the transfer of the Criminal Case No. 1581 of ''98 pending in the Court of Chief Judicial Magistrate, Shivpuri, to the Court of Chief Judicial Magistrate, Gwalior.

The brief facts are thus : The petitioner was married to the respondent No. 3, Mukesh Virthare, on 14-2-1997 and that the marriage had taken place at Gwalior where the petitioner resided; after the marriage she went to reside with her husband at Shivpuri. Her husband and father-in-law, respondents No. 3 and 4 respectively, started mal-treating her. They asked her to bring Rs. 50,000/- cash, coloured television and Yamaha Motor-cycle from her father. Their behaviour with her became cruel and they told her that if she could not bring these items, she should better go to her parents'' place. The petitioner thereafter came to her parents'' place at Gwalior and on 1-8-1998, on the basis of the above facts, she lodged a report at ''Mahila'' Police Station-Gwalior against the respondents No. 3 and 4, her husband and father-in-law, for the offences u/s 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. The ''Mahila'' Police Station, Gwalior, registered the offences as Crime No. 0/98 and sent the case to the Police Station - Dehat Shivpuri for further investigation where this report was registered on 13-8-98 as Crime No. 200/98. After completing the investigation the Police Station - Dehat Shivpuri filed the challan in the Court of Chief Judicial Magistrate, Shivpuri, where it was registered as Criminal Case No. 1581/98, and at present it is pending in that Court.

I have heard the learned counsel on both the sides, at length, and have carefully gone through the relevant papers.

The preliminary objection raised by the learned counsel for the respondents No. 3 and 4 is that the Court at Gwalior had no jurisdiction to try this case, and that is why the report lodged by the petitioner at ''Mahila'' Police Station - Gwalior was forwarded to the Police Station - ''Dehat'' Shivpuri, for further investigation in the matter. Be that as it may, this preliminary objection cannot be taken to be a ground for refusing the transfer of the case from one district to another district. The provisions of Section 407(1)(c)(i) of the Code of Criminal Procedure are very clear on the point and indicate that 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. To make the point more clear the above mentioned provisions are reproduced below :--

"407. (1) Whenever it is made to appear to the High Court--

(c) that an order under this Section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice;

It may order--

(i) that any offence he inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;".

Thus, it is apparent that if the transferee Court is competent in other respects to inquire into or try such offences, the provisions of Sections 177 to 185 of the Code of Criminal Procedure dealing with the jurisdictional aspects of the Criminal Courts in inquiries and trials shall not come in the way, and the transferee Court which initially had no jurisdiction to inquire into or try the case may be clothed with that jurisdiction.

The submissions made by the learned counsel for the petitioner centre round the general convenience of the petitioner and the witnesses. He has argued that since five witnesses out of the list of six witnesses are residents of Gwalior only, it would be but convenient to the petitioner to have the case tried in a competent Criminal Court at Gwalior. The only witness who would be required to come from Shivpuri is the Station House Officer of the Police Station ''Dehat'' Shivpuri. Learned counsel for the respondent has submitted that both the accused persons viz., the respondents No. 3 and 4 are residents of Shivpuri, hence, the convenience lies with them. Looking to the factual aspects of the case coupled with the convenience of the parties and the witnesses, to meet the ends of justice I feel that it would be worthwhile and more expedient if the trial is held at Gwalior.

In view of the above discussion this petition is allowed and it is directed that the Criminal Case No. 1581 of 1998 pending in the Court of the Chief Judicial Magistrate, Shivpuri, shall be transferred to the Court of the Chief Judicial Magistrate, Gwalior, and it shall be tried by the latter Court.