Convenience Of Informant/Victim As Well As Of Accused, Prosecution Has To Be Seen Before Transferring Criminal Case: Allahabad HC

The Allahabad High Court has observed that before taking any decision regarding the transfer of a criminal case, not only the convenience of the applicant/ complainant/ informant/ victim is to be taken into consideration, but the convenience of the accused and prosecution is also to be taken into consideration.

To observe thus, the Bench of Justice Saurabh Shyam Shamshery also relied upon the recent ruling of the Allahabad HC in the case of Shailendra Kumar Prajapati vs. State of U.P. and another [Transfer Application (Criminal) No. 285 of 2021].

In the Shailendra Kumar Prajapati case, it was observed by the Allahabad High Court that the mere assertion of an applicant that justice is likely to be denied can't be ground to transfer a criminal case. Instead, the Court has to determine whether the said apprehension is reasonable and not hypothetical which is based on mere conjecture and speculation.

"No regular or strict rules can be prescribed for disposal of transfer applications. The convenience of the parties and witnesses does not necessarily mean the convenience of the applicant himself/herself, who makes an application before the court on the basis of a false presumption of apprehension. Convenience in the context of transfer, refers to the convenience of the prosecution, other petitioners, witnesses, and the society at large," the Court had observed in the Shailendra Kumar Prajapati case.

The case before the HC

Essentially, the bench was dealing with a transfer application filed on behalf of Complainant/ First Informant (wife of Opposite Party No. 2) to transfer a criminal case registered under Sections 498A, 323, 504, 506, 354, 328 IPC and 3/4 Dowry Prohibition Act from District Court Varanasi to District Court Jaunpur.

It was argued by her that she has already instituted two cases (one under the Domestic Violence Act and another under Section 125 CrPC) at District Court Jaunpur and being a lady, it would be very inconvenient for her to travel about 80 km. from Jaunpur to Varanasi on each and every date whenever the case is listed.

Opposing the plea, the A.G.A. appearing for State and the Advocate for Opposite Party No. 2 submitted in the plea, a transfer of the case was sought only on the ground of convenience of the applicant-wife but in case of transfer, the likelihood of inconvenience caused to other parties cannot be ignored.

In view of this, relying upon Shailendra Kumar Prajapati's case, the Court observed thus:

"This is a criminal case wherein not only convenience of applicant/ complainant/ informant/ victim is to be taken into consideration but convenience of accused and prosecution is also to be taken into consideration. Balancing the issue of convenience, I find that in case the criminal case is transferred according to prayer of applicant, it will adversely caused inconvenience to other parties. This is a criminal case, therefore, the prosecution is the State and applicant/ victim is represented by Public Prosecutor and the Advocate engaged by applicant has only role to assist the Public Prosecutor.Therefore, considering the issue of convenience, I do not find it to be a fit case for transfer."

Case title - Smt. Sakshi Jaiswal v. State of U.P. and Another [TRANSFER APPLICATION (CRIMINAL) No. - 316 of 2021]

Case Citation: 2022 LiveLaw (AB) 208

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