No Universal Rules Can Be Prescribed For Deciding A Transfer Petition: Jharkhand High Court Reiterates

The Jharkhand High Court recently transferred a case from the Court of Saraikela to Bokaro, noting that in a criminal proceeding, the trial is required to be conducted within the Court, where the jurisdiction of that Court is made out, so far as the occurrence is concerned.

Justice Sanjay Kumar Dwivedi referred to the case of Abdul Nazar Madani v. State of Tamil Nadu, where it was held that no universal or hard and fast rules can be prescribed for deciding a transfer petition which is always to be decided based on the facts of each case.

Advocate Pankaj Kumar, appearing on behalf of the petitioners, submitted that the petitioner-wife and her husband are living in the house of her ailing father and mother, and there is no other male member in the family. It is also submitted that the petitioner does not have any independent source of income and is completely dependent on her father.

In the petitioner's case, when she was married to her husband, her father has paid Rs. 6,45,000/- through cheque and Rs. 1,55,000/- as cash to her father-in-law as per their demand. Other than cash, some articles including T.V., Furniture, and Utensils worth Rs. 2,75,000/-, jewelry worth Rs. 3,06,852/- was also given.

After staying in her matrimonial home for a few days, she returned to her maternal home. During the said period, her husband used to say that he was not willing to marry her but had to do it due to family pressure. After spending a week in her maternal home, her husband's behavior had changed towards her when she went back. It was also found out her husband had faked as a Civil Engineer for marriage.

She also observed that her husband used to consume some medicine. He used to avoid her when she asked him about the medicines and started torturing her mentally and physically on repeated questioning. On inquiry, it was found out that her husband was impotent and incurable. The husband also threatened her not to disclose his impotence to anyone.

On constant abuse to the petitioner and her parents, they asked her to go back and did not allow her to take the clothes and ornaments. She returned to her maternal home and filed a case against her husband and in-laws for offences under Section 498-A, 406, 420, 323, read with 34 of the Indian Penal Code. In return, her husband filed a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act at the Court of Principal Judge, Family Court. The petitioner then filed a Transfer Petition before this Court to transfer the suit from Saraikela to Bokaro. This Court transferred the said suit. The husband filed another case under Section 506 (Criminal Intimidation) of the Indian Penal Code; cognizance has been taken.

When she expressed her wishes to appear for a job interview, her husband and brother-in-law told her that she could not go out or meet anyone. She was forced to quit a teaching job in St. Xaviers School.

Advocate Pratiyus Lala, appearing for the respondents, submitted that cognizance of an offense under Section 506 has already been taken. He further argued that the accused could not choose the place of trial; rather, they are bound to try where the offence is committed. He also submitted that three enquiry witnesses and all the enquiry witnesses are the residents of Seraikella and if this criminal case will be transferred from the Court of Seraikella to the Court of Bokaro.

Referring to Chapter -XIII of the Cr. P.C., it was submitted that Section 177 clearly says that every offence shall be ordinarily enquired and tried by the Court within whose jurisdiction it was committed.

The Court noted that in the criminal proceeding, the trial must be conducted within the Court where the jurisdiction of that Court is made out so far as the occurrence is concerned. Section 407 of the Cr.P.C. empowers the High Court to transfer any case if a transfer case is made out. The Court referred to Abdul Nazar Madani v. State of Tamil Nadu where it was held that,

"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 of the Cr. P.C."

The Court held that the case has to be tried within the jurisdiction of the concerned Court where the occurrence took place. It observed that Section 407 of the Cr.P.C. empowers the High Court to transfer the case in the facts and circumstances of the case if the grounds for transfer is made out. Noting that the petitioner is a lady residing with an ailing father, without any independent source of income, it held that if the husband can appear in a court of Bokaro for one case, no hardship will be caused if he has to appear in Bokaro for another case. It would be rather expensive for them to attend the proceeding at Seraikella, the Court added.

Case Title: Priya Malviya & Ors v. The State of Jharkhand & Ors

Citation: 2022 LiveLaw (Jha) 23

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