Harita Sunil Parab v. State of Nct of Delhi and Others
NAVIN SINHA, J.
TRANSFER PETITION (CRL.) NOs.254-255 OF 2017
1. The present application seeks transfer of F.I.R. No.351 of 2016
under Sections 354, 354A, 323, 506, 509 of the Indian Penal Code (IPC)
registered at the Tilak Marg Police Station, New Delhi, and F.I.R. No.1742
of 2016 under Sections 379, 323, 376, 354, 506, 420, IPC before the
Indirapuram Police Station, District Ghaziabad (Uttar Pradesh), registered
on complaints lodged by the petitioner against respondents nos. 2 to 4, to
the court of competent jurisdiction at Mumbai, Maharashtra.
2. The petitioner, who appears in person, submits that she is a
permanent resident of Mumbai and is a practicing Advocate before the
Mumbai High Court. Her case was not being investigated by any police
officer of New Delhi despite her written complaint to the Joint
Commissioner of Police dated 15.07.2017 and meeting with the
Commissioner of Police, Deputy Commissioner of Police and the Assistant
Commissioner of Police. She fears that investigation may not be done
fairly. She has been receiving threats from the accused p ersons and
was finding it difficult to pursue matters in Delhi as her professional
engagements in Mumbai were also suffering because of the same. The
investigation in the FIRs is thus sought to the transferred to the court of
competent jurisdiction at Mumbai.
3. Respondent no.2 has filed a counter affidavit that the petitioner
has also lodged F.I.R. No.331 of 2016 under section 354-B, IPC, against
one Shri Ram Chander, Auto Rickshaw Driver at Delhi, and F.I.R.
No.CD-PG-000260 of 2016 under Section 380 IPC, against the staff of
Hotel Prince, Pahar Ganj, New Delhi. Opposing the transfer petitions, it
is submitted that the accused and the prosecution wit nesses are all
situated in Delhi. The respondent who is also an advocate practicing at
Delhi would likewise be hindered in his professional engageme nts for
like reasons, if the cases are transferred to Mumbai.
HARITA SUNIL PARAB v. STATE OF NCT OF DELHI
AND OTHERS
4. We shall notice the facts of the case only to the extent necessary
for purposes of the present order so as not to prejudice th e case of
either party. The rejoinder by the petitioner does not dispute the institution
of other FIRs by her at Delhi. The records reveal that investigation has
been completed in both the present FIRs which are the subject matter of
transfer, and separate charge sheets have been filed before the court of
competent jurisdiction. If the petitioner has any grievance with regard
to the investigation, the remedy lies in filing an appropriate application
under the Code of Criminal Procedure before the court concerned, and
any such application, if filed, has to be considered on its own merits by
the concerned court in accordance with law.
5. Likewise, if the petitioner faces or is apprehensive for her safety
in pursuing her complaints at Delhi, sufficient remedies are available to
her under the law. Any such application, if filed, before the concerned
court or the police, has to be dealt with on its own merits in accordance
with law.
6. The only surviving issue left is with regard to the inconvenience,
as alleged, that may be caused to the petitioner in pursu ing her cases
before the competent court at Delhi affecting her p rofessional
engagements at Mumbai and requiring her to travel to Delhi.
7. In Gurcharan Das Chadha vs. State of Rajasthan, (1966) 2
SCR 678, dealing with the issue for transfer of a case, it was observed:
“13….The law with regard to transfer of cases is well-settled. A
case is transferred if there is a reasonable apprehension on the
part of a party to a case that justice will not be done. A petitioner
is not required to demonstrate that justice will inevitably fail. He is
entitled to a transfer if he shows circumstances from which it can
be inferred that he entertains an apprehension and t hat it is
reasonable in the circumstances alleged. It is one of the principles
of the administration of justice that justice should not only be done
but it should be seen to be done. However, a mere allegation that
there is apprehension that justice will not be done in a given case
does not office. The Court has further to see wheth er the
apprehension is reasonable or not. To judge of the reasonableness
of the apprehension the State of the mind of the person who
entertains the apprehension is no doubt relevant but that is not all.
The apprehension must not only be entertained but must appear
to the Court to be a reasonable apprehension.”
737
8. The apprehension of not getting a fair and impartial enquiry or
trial is required to be reasonable and not imaginary, based upon conjectures
and surmises. No universal or hard and fast rule can be prescribed for
deciding a transfer petition, which will always have to be decided on the
facts of each case. Convenience of a party may be one of the relev ant
considerations but cannot override all other considerations such a s the
availability of witnesses exclusively at the original place, making it virtually
impossible to continue with the trial at the place of transfer, and progress
of which would naturally be impeded for that reason at the transfer red
place of trial. The convenience of the parties does n ot mean the
convenience of the petitioner alone who approaches t he court on
misconceived notions of apprehension. Convenience for the purposes
of transfer means the convenience of the prosecution, other ac cused,
the witnesses and the larger interest of the society. The charge sheet in
FIR No.351 of 2016 reveals that of the 40 witnesses, the petitioner alone
is from Mumbai, two are from Ghaziabad, and one is from NOIDA. The
charge sheet of FIR No.1742 of 2016 is not on record. A reasonable
presumption can be drawn that the position would be similar in the same
also.
9. In Mrudul M. Damle & Anr. vs. Central Bureau of
Investigation, New Delhi , 2012 (5) SCC 706, it was noticed that early
conclusion of the trial becomes much more difficult involv ing more
expenses for the prosecution by it having to bear travelling expenses of
official and non-official witnesses and all of which ultimately causes the
trial to linger on for years.
10. In our view, at this stage, the apprehensions voiced by the
petitioner of possible harm to her at Delhi is too nebulous a ground for
transfer. On her own pleadings, the petitioner has been travelling from
Mumbai to Delhi since long for professional reasons. In Parminder
Kaur vs. State of U.P. , (2007) 15 SCC 307, it was observed:
“20. The petitioner is a person of means and it will not be difficult
for her to attend the hearing of the criminal cases pending in the
Court of Chief Judicial Magistrate, Rampur. The comparativ e
inconvenience of the litigant parties are not the only criterion for
transferring the cases from one State to another State, but the
Court has to visualize the comparative inconvenienc e and
hardships likely to be caused to the witnesses besides the burden
to be borne by the State Exchequer in making payment of travelling
HARITA SUNIL PARAB v. STATE OF NCT OF DELHI
AND OTHERS [NAVIN SINHA, J.]
and other expenses of the official and non-official witnesses who
will have to travel by train from Rampur to Delhi or Chandigarh,
as the case may be, for attending the court proceedings if the
cases are ordered to be transferred to transferee court… .”
11. We are, therefore, not satisfied that the two cases are required
to be transferred to the court of competent jurisdiction at Mumbai. The
Transfer petitions are, therefore, rejected.
TRANSFER PETITION (CRL.) NOs.253 OF 2017
12. The petitioner seeks transfer of RTM-CR-641/2017, registered
against her under Sections 145(B), 146, 137 of the Railways Act pending
before the Special Railway Magistrate, Ratlam, to the Court of competent
jurisdiction at Mumbai. Similar grounds have been urged of her
convenience to attend the proceedings at Mumbai and the inconvenience
that would be caused to her by having to travel to Ratlam. She is also
stated to have lodged a complaint on 16.02.2017 before the Government
Railway Police at Ratlam with regard to the same occurr ence.
13. In view of the discussion hereinbefore, the present Transf er
Petition is also rejected.
Divya Pandey Transfer Petitions reject ed.