IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No 9289 of 2002
For Approval and Signature:
Hon'ble MR.JUSTICE R.P.DHOLAKIA
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1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the concerned : NO
Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?
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PADMAVATIBEN W/O KAMLESHKUMAR DEVANDAS LAKHANI
Versus
KAMLESHKUMAR DEVANDAS LAKHANI
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Appearance:
1. Criminal Misc.Application No. 9289 of 2002
MR SUNIL S JOSHI for Petitioner No. 1
MR UA TRIVEDI for Respondent No. 1-4
MR PR ABICHANDANI, APP for Respondent No. 5
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CORAM : MR.JUSTICE R.P.DHOLAKIA
Date of decision: 03/05/2003
C.A.V. JUDGEMENT
Heard the learned counsel for the respective
parties.
2.The present petition is filed by the petitioner
original complainant for transferring the Criminal Case
No.3763 of 2001 from the court of Metropolitan
Magistrate, Court No.17, Ahmedabad to the Court of
learned Judicial Magistrate (F.C.), Dahod.
3.Learned counsel for the petitioner has submitted
that the petitioner is a lady and there is matrimonial
dispute between the parties and at present, the
petitioner is residing at her parental house at Dahod and
the petitioner had lodged the complaint against the
respondents accused at Dahod, but as the incident in
question had taken place at Ahmedabad, officials at the
Dahod Police Station, after registering the complaint,
transferred the said complaint to the Sardar Nagar Police
Station, Ahmedabad. It is further submitted that
investigation of the case is over and chargesheet is
submitted against the respondents accused and it is
pending before the Metropolitan Magistrate, Court No.17,
Ahmedabad for trial in which the petitioner being
complainant and other witnesses have to remain before the
court at Ahmedabad on every adjournment. If the
petitioner fails to remain present, the court issues
warrant against her. For attending Court, petitioner has
to travel by bus from Dahod to Ahmedabad for which the
petitioner has to rush early in the morning at the bus
station and in case she fails to get the bus, the court
issues warrant against her and such type of warrant has
been issued by the court. He has further submitted that
petitioner being a lady, attending Court at Ahmedabad
from Dahod causes hardship and inconvenience and at the
same time, it is expensive also while the respondents are
well settled persons and doing wholesale business of
grocery in Ahmedabad.
He has also relied upon the decision of the Apex
Court, reported in A.I.R. 2000 S.C. 3406(1), wherein
the Apex Court transferred the case of lady keeping in
mind the fact that divorce petition was filed by the
husband at Bombay whereas the wife was residing at Jaipur
with her child and it was difficult for the wife to
contest the proceedigns pending in the Court at Bombay.
He has also relied upon the decisions of the Apex
Court reported in 1988 Cri.L.J. 1581, wherein the case
was transferred by the Allahabad High Court on the ground
that the court within whose jurisdiction wife resided
with her father had jurisdiction to try the offence as
the offence was partly committed outside the court’s
jurisdiction, when she was maltreated and continued to be
committed within court’s jurisdiction where she had been
left with her father.
He has also relied upon the decision of the Apex
Court reported in 2001 A.I.R. SCW 4587, head note of
which is as under;-
"Criminal P.C. (2 of 1974), S. 179 -
Territorial jurisdiction Court within whose
jurisdiction consequence has ensued Allegations
that wife was subjected to physical torture when
she was in family way and she had to be taken
back to her parental house at place “J”
Consequence of beating i.e. miscarriage took
place at place “J” – Court at Place “J” has
jurisdiction to try offence Quashment of charge
solely on ground that since act alleged against
accused took place at place “I” where couple
resided after marriage, the Courts at place “J”
acquire no jurisdiction – Illegal.”
Submitting accordingly he has prayed to transfer
the criminal case in question from the Court at Ahmedabad
to Dahod.
4.On the other hand, learned counsel for the
respondent Nos.1 to 4 – original accused has mainly
argued that the respondent – Nos.3 and 4 are ladies. In
the criminal case in question, presence of the petitioner
being complainant on each and every adjournment before
the concerned court at Ahmedabad is not necessary, but
her presence is required only for recording her oral
evidence. It is contended that when the case in question
was kept for recording the evidence of the petitioner on
6/8/2002, the petitioner sought adjournment and hence the
matter was adjourned. Thereafter also, time and again
applications for adjournment was made and matter was
being adjourned. Therefore, it is contended that
petitioner is not interested to proceed further with the
matter and is not giving cooperation in disposing of the
criminal case in question and almost on all adjournments,
the respondents being original accused have to remain
present before court on account of the act of the
petitioner. It is submitted that the criminal case is
pending at the stage of recording her evidence and the
court is ready to record the evidence of the petitioner
and awaiting for presence of the petitioner for recording
her evidence, but the petitioner does not want to enter
into witness box and finalize the criminal case in
question. It is submitted that the petitioner is
interested in delaying the case in question and instead
of appearing before the concerned court and giving her
oral evidence, the petitioner has filed the present
petition with a view to harass the respondent Nos.1 to 4
– original accused. It is further submitted that the
petitioner has falsely involved all the family members
including the petitioner Nos.3 and 4 though ladies and
merely because the petitioner is a lady and attendance of
court at Ahmedabad from Dahod causes inconvenience to the
petitioner, the case in question cannot be transferred at
Ahmedabad. It is submitted the respondent Nos.3 and 4
are also ladies and they are also facing the same
problems.
5.In this matter, this Court (Coram : D.H.
Waghela, J.) has issued rule making it returnable on
11/2/2003, vide order dtd.21/1/2003. The respondents
have filed their reply against which, the petitioner has
filed rejoinder.
6.Having heard the learned counsel for the
respective parties and considering the evidence on
record, it is clear that the petitioner has prayed for
transfer of criminal case in question on the ground of
the petitioner being a lady and attendance of criminal
case in question from Dahod to at Ahmedabad causes
inconvenience and hardship and expensive. It is to be
noted that the respondent Nos.3 and 4 also ladies and,
therefore if the case in question is transferred, they
will have to suffer the same problem. Further, the
criminal case in question is pending for recording the
oral evidence of the petitioner and other witnesses since
20/2/2002 and from that date, the case has been adjourned
several times at the request of the petitioner. It
appears that the petitioner is avoiding her statement
being recorded as result of which, the
respondents-original accused have to remain present
before the concerned court. Furthermore, presence of the
petitioner being complainant is not necessary on each and
every adjournment. Her presence is required only for
recording her statement, but instead of giving
cooperation, she is seeking adjournments.
7.So far as the decision of AIR 2000 S.C. 3406(1)
cited by the learned counsel for the petitioner is
concerned, I am in total agreement with the law laid down
by the Apex Court in the said judgement. In the said
case, divorce petition was filed by the husband at Bombay
and wife was stationed at Jaipur with her small child and
therefore, considering the difficulty of the wife to
contest the proceedigns at Bombay from time to time, the
divorce petition was transferred from Bombay to Family
Court at Jaipur. Whereas in the present case, the
petitioner-original complainant and the respondent Nos.3
and 4, are ladies, and hence, the said decision is not
applicable to the facts of the present case.
8.So far as the decision of 1988 Cri.L.J. 1581
cited by the learned counsel for the petitioner is
concerned, I am in total agreement with the law laid down
by the Apex Court in the said judgement. Said case is
regarding territorial jurisdiction wherein the wife was
sent back to her father’s house after maltreating her for
dowry and wife fallen ill after her return to father’s
house due to mental shock due to cruelty of husband and
his relatives. In that case, the Apex Court has held
that the court within whose jurisdiction wife resided
with her father had jurisdiction to try the offence as
the offence was partly committed outside the Court’s
jurisdiction when she was maltreated and continued to be
committed within court’s jurisdiction where she had been
left with her father. Whereas the facts of the present
case is quite different than the cited case and hence the
said citation is also not applicable in this case.
9.In the above peculiar facts and circumstances, I
am of the opinion that the present petition is required
to be rejected. Hence, it is rejected. Rule is
discharged.
10.Trial court is directed to record the oral
evidence of the petitioner-original complainant as and
when she presented herself before the court.
(R.P.DHOLAKIA,J.)
RAFIK