1. Since common question of fact and law is arising and involved in both the petitions filed under Section 407 of the CrPC, these two transfer petitions
are clubbed together, heard together and are being disposed of by this common order.
2. Respondent Smt. Swati Das is wife of petitioner No.1 Sushrut Das. Their marriage was solemnised on 3-7-2017 at Raigarh and immediately
thereafter, dispute has arisen between them qua demand of dowry resulting into lodging of first information report by Smt. Swati Das against husband,
father-in-law and mother-in-law which resulted in filing of charge-sheet before the criminal court i.e. Judicial Magistrate First Class, Raipur being
Criminal Case No.585/2019 under Crime No.15/2018 for offence punishable under Section 498A read with Section 34 of the IPC which was taken
cognizance of on 30-1-2019 and that is pending consideration. In the meantime, Smt. Swati Das filed an application under Section 12 of the Protection
of Women from Domestic Violence Act, 2005 (for short, ‘the Act of 2005’) before the Court of Judicial Magistrate First Class, Raipur which
was registered as MJC No.175/2018 and that is how both the cases (criminal case and application under Section 12 of the Act of 2005) are pending
consideration before that Court.
3. Now, the husband and in-laws of Smt. Swati Das have preferred transfer petitions for transfer of both the cases to Bilaspur or Raigarh or to any
other place, as they are finding it difficult to defend themselves in the court of JMFC, Raipur where the cases are pending because, they are residing
at Raigarh. No reply has been filed on behalf of the respondents in both the transfer petitions.
4. Mr. Rishi Rahul Soni, learned counsel appearing for the petitioners in both the transfer petitions, would submit that in order to hold a fair and
impartial trial, transfer of both the cases is necessary to a court except where the cases were pending and also it will be more convenient to the
petitioners, particularly petitioners No.2 & 3, who are aged about 62 years and 59 years, respectively, and as such, the transfer petitions be allowed
and the cases be transferred to any other court of competent jurisdiction at Raigarh.
5. Mr. Ratnesh Kumar Agrawal, learned counsel appearing for the complainant / private respondent herein, would submit that the offence is alleged to
have been committed in the local jurisdiction of courts at Raipur as such, the court at Raipur has jurisdiction to try the cases by virtue of Section 177 of
the CrPC and even by virtue of the decision rendered by the Supreme Court in the matter of Rupali Devi v. State of Uttar Pradesh and others (2019)
5 SCC 384, the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty
committed by the husband or his relatives, would also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of
the IPC. He would further submit that the court is required to look into the general convenience of both the parties and as such, the transfer petitions
are liable to be dismissed.
6. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost
circumspection.
7. Transfer of cases has been sought in accordance with Section 407 of the CrPC. Section 407(1) of the CrPC states as under: -
“407. Power of High Court to transfer cases and appeals.â€
(1) Whenever it is made to appear to the High Courtâ€
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(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 orderâ€
(i) that any offence be 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;
(ii) that any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such
Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself.â€
8. Section 407 of the CrPC contains an important provision of law, and one that is frequently resorted to. It can be brought into action by the party
when only when one or more of the following five conditions are fulfilled: â€
(a) a fair and impartial inquiry or trial cannot be had;
(b) some question of law of unusual difficulty is likely to arise;
(c) an order under this section is required by any provision of this Code;
(d) it will tend to the general convenience of the parties or witnesses;
(e) it is expedient for the ends of justice.
Under these conditions only this Court (High Court) alone has jurisdiction to transfer a case under Section 407 of the CrPC.Â
It is in the expediency of the larger interest of justice, this Court may pass an order as incorporated under clauses (i) of Section 407 of the CrPC.
9. In a criminal case, the place of inquiry and trial has to be by the court within whose local jurisdiction, the crime was allegedly committed as provided
by Section 177 of the CrPC. Section 178 of the CrPC is an exception to the “ordinary rule†contained in Section 177 of the CrPC. The Supreme
Court in Rupali Devi (supra) has considered the following issue and answered the question in paragraph 16 as under: -
“Whether a woman forced to leave her matrimonial home on account of acts and conduct that constitute cruelty can initiate and access the legal
process within the jurisdiction of the courts where she is forced to take shelter with the parents or other family members?â€
“16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on
account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a
complaint alleging commission of offences under Section 498-A of the Penal Code.â€
10. As such, the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of
cruelty committed by the husband or his relatives would have jurisdiction to entertain a complaint alleging commission of offence under Section 498-A
of the IPC. In the instant case, the offence is alleged to have been committed within the local limits of criminal courts at Raipur and that is the reason
why Criminal Case No.585/2019 for offence punishable under Section 498A read with Section 34 of the IPC is pending consideration before the Court
of JMFC, Raipur. The petitioners are seeking transfer only on the ground that they are residing at Raigarh and it is inconvenient for them to travel
from a remote distance of Raigarh to Raipur to attend the proceedings, whereas, it is the case of the respondent / complainant â€" wife that she being
a deserted woman has to prosecute her criminal case at Raipur and in view of the provision contained in Section 177 of the CrPC and also in the light
of the decision rendered by the Supreme Court in Rupali Devi (supra), undisputedly, the court at Raipur has jurisdiction to try the offence under
Section 498A of the IPC. Thus, it is quite vivid that in the light of Section 177 of the CrPC and in the light of the decision rendered by the Supreme
Court in Rupali Devi (supra), the court at Raipur under whose limit the offence under Section 498A of the IPC is alleged to have been committed, has
jurisdiction to try the offence under Section 498A of the IPC. Moreover, most of the witnesses of the offence are also of the complainant side and
they are residing at Raipur. The offence was committed at Mumbai as well as Raipur. Apart from that, the complainant is admittedly, residing with her
parents. As such, by virtue of Section 177 of the CrPC and in view of the decision of the Supreme Court in Rupali Devi (supra), and convenience of
parties does not mean convenience of the petitioner(s) alone, it means, convenience of the prosecution, other accused persons and witnesses in larger
interest of justice. In that view of the matter, I do not find any merit in Transfer Petition (Cr.)No.19/2019.
11. Application under Section 12 of the Act of 2005 can be filed before the Court of Judicial Magistrate having jurisdiction by virtue of Section 27 of
the Act of 2005 which provides as under: -
“27. Jurisdiction.â€"(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local
limits of whichâ€
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen,
shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made this Act shall be enforceable throughout India.â€
12. A careful perusal of the aforesaid provision would show that application under Section 12 of the Act of 2005 can be filed by the person aggrieved
within the local limits of which the person aggrieved permanently or temporarily resides or carries on business or is employed; or the respondent
resides or carries on business or is employed; or where the cause of action has arisen and that court shall be the competent court to grant a protection
order and other orders under the Act and to try offences under the Act.
13. In this case, admittedly, the respondent / complainant is residing within the local limits of Raipur court and cause of action has also arisen in the
local limits of Raipur court and therefore by virtue of Section 27 of the Act of 2005, that court will be the competent court to entertain the application
of protection orders under Section 18 of the Act of 2005 which is pending consideration.
14. Thus, in view of the provision contained in Section 27(1)(a) of the Act of 2005, since the respondent / complainant is residing within the local limits
of Raipur court, therefore, the court at Raipur will have the jurisdiction to hear the application filed under the Act of 2005. Merely because it is
inconvenient to the petitioners, Section 407 of the CrPC cannot be invoked.
15. In view of the aforesaid discussion, I do not find any merit in both the transfer petitions, they deserve to be and are accordingly dismissed.
However, so far as criminal case is concerned, the petitioners are at liberty to file application for temporary / permanent exemption before the court
concerned, which shall be considered by that court strictly in accordance with law. No order as to cost(s).
