Satish Sharma & ANR.  INSC 1287 (27 July 2009)
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
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.
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.
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.
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.
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 2 was sought to be
attached. Allegedly S.H.O., P.S. Moti Dungri, Jaipur within whose jurisdiction
the said property is situate was non-co- operative. 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.
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.
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
Petitioner-Monica, who appears in person would contend that as a
criminal case under Section 498A/406 and 34 of the Indian Penal Code 3 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.
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.
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.
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 4 the local police. At this
stage, on request, the said process be given dasti to the complainant for
received the said process on 5th May, 2007.
Respondent No.1 contends that no member of her in-laws' family had
lived at the said house for the last forty years.
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.
We have gone through the list of dates contained in the counter-
affidavit, 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.
As the respondent No.1 and the other witnesses have nothing to do
with the criminal case pending in the Court of Additional Chief 5 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.
It furthermore appears that the investigation is not yet complete.
in their counter-affidavit have stated that the petitioners have not yet been
examined by the Investigating Officer.
This Court in Abdul Nazar Madani v. State 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 6 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."
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
......................................J. [ S.B. Sinha ]