Supreme Court: Case Transfer by wife Overruled, Not Granted, 27.07.2009, Monica Vs Satish Sharma, Justice S.B. Sinha & Justice Cyriac Joseph

Supreme Court: Case Transfer by wife Overruled, Not Granted, 27.07.2009, Monica Vs Satish Sharma, Justice S.B. Sinha & Justice Cyriac Joseph


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION

TRANSFER PETITION (CRL.) NO. 258 OF 2007

Monica …. Petitioner
Versus
Satish Sharma and another ….Respondents

WITH
TRANSFER PETITION (CRL.) NOs. 259-260 OF 2007

Monica and another …. Petitioners
Versus
State of Rajasthan ….Respondent

J U D G M E N T

S.B. SINHA, J.

1. Transfer Petition (Crl.) No. 258 of 2007 has been filed by Monica
seeking transfer of Crl. Revision Petition No.62 of 2007 tiled ‘Satish
Sharma and another vs. Monica and others’ filed by respondent No.1.
from the Court of Additional District Judge, Jaipur to the Court of
Additional District & Sessions Judge, Patiala House Courts, New Delhi
and for transfer of execution proceedings under Section 83 of the Code
of Criminal Procedure, 1973 (for short ‘the Code’) in respect of property
No.433, Adarsh Nagar, Jaipur, to the Deputy Commission of Police,
South Zone, New Delhi.

2. Transfer Petition (Crl.) Nos. 259-260 of 2007 have been filed by
Monica and her mother, Smt. Vinay Malhotra for transfer of S.B. Crl.
Misc. Petition No.1402 of 2007 filed by them under Section 482 of the
Code for quashing of FIR No.170 of 2007 pending before the High Court
of Rajasthan, Jaipru Bench, to the High Court of Delhi.

3. Admittedly petitioner-Monica has initiated some criminal cases
against her husband and in-laws. They had been granted bail. Inter alia
on the premise that they had jumped bail, proceedings under Section 83
of the Code of Criminal Procedure were initiated against them.

4. Husband and mother-in-law of Monica were declared proclaimed
offenders. Property of the mother-in-law of Monica at Lajpat Nagar,
New Delhi, was sealed. Father-in-law of petitioner Monica had a joint
property at Jaipur. The same is said to be jointly owned by respondent
Nos. 1 and 2 and father-in-law of petitioner-Monica. The said property
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was sought to be attached. Allegedly S.H.O., P.S. Moti Dungri, Jaipur
within whose jurisdiction the said property is situate was non-cooperative.
However, the said property was attached by S.H.O. P.S. Moti
Dungri unilaterally on 20th June, 2007 in terms of Section 83(4)(c) of the
Code i.e. to maintain status quo.

5. Petitioner-Monica thereafter filed an application before the trial
court at Delhi that the property be sealed in terms of Section 83(4)(a) of
the Code whereupon a direction in that behalf was issued on 10th July,
2007.

6. On an allegation that the Monica and her mother (petitioners) had
forged the stay order dated 10th July, 2007 without seeking clarifications
from the court of learned Additional Chief Metropolitan Magistrate, New
Delhi, first information report was lodged by the first respondent (Satish
Sharma) with the concerned Police Station. It was alleged that the
petitioners had produced the said forged order dated 10th July, 2007
before the local police. Respondent No.1, however, when checked the
original order from the Court of Additional Chief Metropolitan
Magistrate, New Delhi, and came to learn that the order actually was
issued under Section 83(4)(c) of the Code and not under Section 83(4)(a).

7. Petitioner-Monica, who appears in person would contend that as a
criminal case under Section 498A/406 and 34 of the Indian Penal Code
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and other proceedings against her husband/her parents-in-law at Patiala
House Courts, New Delhi are pending in which she had been appearing in
person, proceedings pending at Jaipur be transferred to Delhi.

8. Respondent No.1 is a relative of father-in-law of the petitioner. He
has nothing to do with the matrimonial dispute and/or the criminal case
filed by the petitioner-Monica against her husband and her in-laws. He is
merely a co-sharer in the property of the father-in-law of the petitioner. It
is beyond any doubt or dispute that whereas in terms of Section 83(4)(a)
of the Code the property has to be taken possession whereas in terms of
the provisions of Section 83(4)(c) merely an order of prohibitory
injunction to be passed.

9. If the respondents concerned are in physical possession of the
property, the question of dispossessing them by way of attachment for
jumping of bail by the father-in-law of the petitioner did not arise.

10. Indisputably the learned Additional Chief Metropolitan Magistrate,
Patiala House Courts, New Delhi, on 30th April, 2007 inter alia passed the
following order :-
“Meanwhile complainant submits that she could
not get the process u/s 83 Cr.PC executed insofar
as Jaipur property is concerned. She requests for
one more date. Under these circumstances, issue
fresh process Us 83 CrPC against the accused
Bhaskar Sharma in respect of the Jaipur property
to be got executed with the aid and assistance of
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the local police. At this stage, on request, the said
process be given dasti to the complainant for
execution.”
Petitioner received the said process on 5th May, 2007.

11. Respondent No.1 contends that no member of her in-laws’ family
had lived at the said house for the last forty years.

12. We have noticed hereinabove that allegations had also been made
by the petitioners against the Station House Officer of P.S. Moti Dungri,
Jaipur and on the basis of such allegations the Court of Additional Chief
Metropolitan Magistrate, Patiala House Courts, New Delhi, was also
moved.

13. We have gone through the list of dates contained in the counteraffidavit,
on perusal whereof it appears that in pursuance of the
execution of the order of attachment dated 10th July, 2007, Station House
Officer of P.S. Moti Dungri, Jaipur called the occupants of the property
on 19th July, 2007 and directed them to vacate the property immediately
as the same would be sealed on 20th July, 2007. It is only then that
respondent No.1 obtained a copy of the said order dated 10th July, 2007
by fax on 19th July, 2007.

14. As the respondent No.1 and the other witnesses have nothing to do
with the criminal case pending in the Court of Additional Chief
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Metropolitan Magistrate, Patiala House, New Delhi and as the act of
commission of forgery is said to have taken place at Jaipur, we are of the
opinion that it is not a fit case where the order of the transfer should be
passed as most of witnesses are from Jaipur only. Furthermore, the
petitioner need not even attend the proceedings pending before the
learned Additional Sessions Judge, Jaipur or the High court of Rajasthan,
Jaipur Bench in person.

15. It furthermore appears that the investigation is not yet complete.
Respondents in their counter-affidavit have stated that the petitioners
have not yet been examined by the Investigating Officer.

16. This Court in Abdul Nazar Madani v. S tate of Tamul Nadu ,
[(2000) 6 SCC 204] has held :-
“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. No universal or hard and fast
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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.”

17. For the reasons mentioned above we find no ground to transfer the
matters from Jaipur to Delhi. The transfer petitions are dismissed
accordingly. However, in the facts and circumstances of the case, there
shall be no order as to costs.

………………………………..J.
[ S.B. Sinha ]
………………………………..J.
[ Cyriac Joseph ]

New Delhi

July 27, 2009
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