H.N. Sharma, J.@mdashBy this petition the petitioner has prayed for transferring of the Complaint Case No 811/2009 pending in the court of the learned Addl. Chief Judicial Magistrate, Hailakandi to the court of the Chief Judicial Magistrate, Barpeta or to any other of Nalbari.
2. I have heard Mr. I. Uddin, Learned Counsel for the petitioner and Mr. M.H. Rajborbhuyian, Learned Counsel for the respondent.
3. The petitioner is an accused in the aforesaid Complaint Case instituted by the complainant wife alleging offence u/s 498A, IPC, in the court of the learned Chief Judicial Magistrate, Hailakandi. The learned trial court after perusal of the complaint -and recording the initial statement of the complainant took cognizance of the offence under the aforesaid section of law. At that stage, the petitioner has approached this Court for transferring the case as indicated above.
4. Although several grounds for transferring the case has been taken by the petitioner in this petition, Mr. I. Uddin, Learned Counsel has pressed into service only lack of territorial jurisdiction of the learned court at Hailakandi to try the case. It is submitted by the Learned Counsel that the cause of action for the case having arisen within the jurisdiction of Barpeta District, the learned Chief Judicial Magistrate, Hailakandi, has no territorial jurisdiction to decide the case; and that the complainant''s father being a resident of Rampur in the district of Nalbari and the witnesses cited in the complaint to prove the case are also from the Nalbari district, the case conveniently be tried at Nalbari; and that at any rate the learned Chief Judicial Magistrate, Hailakandi has no jurisdiction to try the case. It is also contended that the petitioner is at present serving at Barpeta town and his father is an old man of 75 years of age for which it is would be very difficult for the petitioner to go to Hailakandi to defend the case.
5. Mr. Rajborbhuiyan, Learned Counsel for the respondent, referring to the affidavit in opposition filed by the respondent-complainant, submits that at present the father of the complainant has not roof at Rampur village and he is permanently residing at Panchgram, Hailakandi. The complainant is residing at Hailakandi along with the parents and other family members. Further contention of the Learned Counsel is that she is now pursuing her M.Phil course by staying in her parents house. That apart, the petitioner is still continuing his demand for dowry as reflected in the complaint petition. The complainant is an unemployed lady whereas the petitioner is Master of Engineering and working as Foundation Engineer in the Orrigation Department, Government of Assam, at Barpeta. It is not practically possible for the complainant to go to Barpeta or Nalbari if the case is transferred and such transfer would not be conducive to justice.
6. Mr. Borbhuiyan also pressed into service the decision rendered by this Court in the case of Bina Dey and Ors. v. Pratibha Dey (Baidya) 2003 (3) GLT 659. On the other hand, Mr. I. Uddin, Learned Counsel for the petitioner, pressed into service the decision of the Apex Court in the case of Captain Amarinder Singh v. Prakash Singh Badal and Ors. (2009) 2 SCC (Crl.) 971.
7. In the case of Captain Amarinder Singh (supra), a prayer was made for transfer of a criminal case relating to an FIR filed u/s 420, 467, 468, 471 and 120B, IPC, read with Sections 7, 8, 9, 10, 13(1) and (2) of the Prevention of Corruption Act, pending in the court of the Special Judge, Ropar to any other competent Court in Delhi. The Apex Court after considering the entire facts and circumstances of the case and having found that no reasonable apprehension of not availing justice in the State of Punjab, the petition was dismissed. In the aforesaid case the Apex Court observed that for transfer a criminal case there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It is one of the principles of administration of justice that justice should not only be done but it should also be seen to have been done. Mere allegation that there is apprehension that justice will not be done in a given case does not suffice to transfer a case from one court to another and the court has further to see whether the apprehension alleged is a reasonable one or not. The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension.
8. In the case of Bina Dey (supra), relying on the decision rendered by the Apex Court in the case of
9. At paragraph 3 of the aforesaid judgment stated as follows.
(3) The Learned Counsel for the respondent on the other hand placed reliance on a decision of the Allahabad High Court in the case of
7 If repeated demand for dowry is made and harassment is meted out to a woman which may be physical or mental is an act of cruelty. It is not necessary that the husband or his relatives must he present at the time when the housewife is subjected to cruelty if their act or conduct, omission or commission is of such a nature which results in mental and physical harassment it will amount to an act of cruelty to a woman and it is immaterial that the woman is living at that relevant time at her matrimonial house or at her parents house. The offence u/s 498A is a continuing offence and if the act of cruelty continues even while, the woman is living at her parents house, the offence is triable by both the courts in whose territorial jurisdiction the act of continuing offence of cruelty has been committed at matrimonial house or the parents house. In the instant case, prima facie it has been shown that Narayam was subjected to cruelty at he matrimonial home Binjbayala and she was compelled to leave the matrimonial home due to the threats given by the petitioners it has been further stated that when she was living at her parents house the petitioners insisted on their demand for Rs. One lakh failing which she will have to remain at her parents house. This prima facie at this stage shows that the petitioners continued to cause harassment to Narayam with a view to coerce her to satisfy their unlawful demand, i.e., to compel her to live at her parents house. Therefore, prima facie it appears that she has been subjected to cruelty at Manak Khedi within the definition of ''cruelty'' given in the explanation of Section 498A, IPC.
10. Although the Learned Counsel for the petitioner has raised an issue that the learned Chief Judicial Magistrate, Hailakandi, has no jurisdiction to try and decide the allegations leveled against the petitioner. It is found that the petitioner is demanding dowry by inflicting torture upon the complainant. The offence u/s 498A, IPC, is a continuing offence and there is no dispute in this regard.
11. The petitioner may go on raising the issue of not getting fair justie, which appears to be a mere apprehension, but bereft of relevant facts. The husband petitioner is a well paid Government officer whereas the respondent wife is a lady without any employment living at the mercy of her parents.
12. In view of what has been discussed above as well as the law laid down by the Allahabad High Court and affirmed by this Court in Bina Dey (supra), the respondent has been forced to go out of the matrimonial home and compel her to live in her parent''s house and filing of the case in a court within the jurisdiction where she is presently staying will not oust the jurisdiction of the that court to try the offence. In view of the above, I do not find any merit in this petition and accordingly, stands dismissed.
13. The interim order dated 28.10.2009 stands vacated and the learned trial court is directed to proceed with the case.
