BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/08/2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA CRIMINAL ORIGINAL PETITION(MD)No.3863 OF 2011 Uthayalakshmi ... Petitioner Vs. 1.The State through the Inspector of Police, All Women Police Station, Aundiatty crime No.13 of 2009 2.J.Raja 3.W.Joseph Selvaraj 4.M.S.Vijaya R2-R4 impleaded as per the order dated 19.07.2011 made in M.P.(MD) No.2 of 2011 ... Respondents Prayer This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to withdraw the entire case records pertaining to C.C.No.89 of 2010 pending trial before the Judicial Magistrate, Aundipatty and transfer the same to some other competent court for trial. !For Petitioner ... Mr.Dr.L.J.Soundararajan ^For Respondents... Mr.K.V.Rajarajan, G.A.(Crl. Side) for R1 Mr.R.Rajaraman for R2 to R4 :ORDER
This petition has been filed to withdraw the entire case records
pertaining to C.C.No.89 of 2010 pending trial before the Judicial Magistrate,
Aundipatty and transfer the same to some other competent court for trial.
2.The learned counsel appearing for the petitioner would submit that
the petitioner is the defacto complainant and on the basis of the complaint
given by her, a case has been registered for the offence under Section 498(A)
and 406 I.P.C and Section 4 of Tamil Nadu Prohibition of Women Harassment Act
and charge sheet has been filed, which was taken on file in C.C.No.89 of 2010.
He would further submit that the 2nd respondent is her husband and the 3rd and
4th respondents are her in-laws and since the case is pending in C.C.No.89 of
2010 before the learned Judicial Magistrate, Andipatti and because of the
matrimonial dispute, the petitioner/defacto complainant is residing with her
parents at Gujarat and when they appeared before this Court for Mediation, they
were subjected to threat and there was a telephonic threat also and he made
allegations against the officer concerned and hence, he prayed for the transfer
of the case pending before the learned Judicial Magistrate, Aundipatty to any
other Court. To substantiate the same, he relied upon the decision in C.B.I.
Vs. Hopeson Ningshen reported in 2010(5) SCC 115.
3.The respondents 2 to 4 have filed a counter affidavit stating that
on 26.07.2007, the petitioner alone came along with 20 rowdy elements and they
are roaming in and around the Mediation Centre and the petitioner continuously
made threat to the respondents through E- mails, messages and phone calls. They
have further stated that this application has been filed by the petitioner with
a malafide intention and she alone filed an application for earlier disposal of
the case, but when the matter was posted for trial, the prosecution has sought
for adjournments. The 4th respondent is a heart patient and she is so weak and
the 3rd respondent is working as a teacher in a Higher Secondary School, Dndigul
and hence, he prayed for the dismissal of the application.
4.Heard the learned Government Advocate (criminal side).
5.This Court, on 23.03.2011, called for a report from the learned
Judicial Magistrate, Aundipatty and the report has been received. I have
perused the materials as well as the report received from the learned Judicial
Magistrate.
6.On the basis of the complaint given by the petitioner herein, a
case has been registered for the offence under Sections 498(A) and 406 I.P.C and
Section 4 of Tamil Nadu Prohibition of Women Harassment Act and after
investigation, charge sheet has been filed. As per the charge sheet, three
witnesses were residing at Gujarat. Admittedly, the documents would show that
when the matter was posted for Mediation and there was a problem arose between
the petitioner and the respondents 2 to 4. Since the petitioner/defacto
complainant is residing at Gujarat along with her parents, she had a threat from
the respondents.
7.At this juncture, it is appropriate to considered the decision
relied upon by the learned counsel appearing for the petitioner in C.B.I. Vs.
Hopeson Ningshen reported in 2010(5) SCC 115, wherein in the Apex Court has
quoted the observations made in Menaka Sanjay Gandhi V. Rani Jethmalani
(V.R.Krishna Iyer, J. at para 5) (SCC.pp.169-170) , which would run thus :
5. A more serious ground which disturbs us in more ways than one is the
alleged absence of congenial atmosphere for a fair and impartial trial. It is
becoming a frequent phenomenon in our country that court proceedings are being
disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and
disrupting the judicial hearing with menaces, noises and worse. This tenancy of
toughs and street roughs to violate the serenity of court is obstructive of the
course of justice and must surely be stamped out. Likewise, the safety of the
person of an accused or complainant is an essential condition for participation
in a trial and where that is put in peril by commotion, tumult or threat on
account of pathological conditions prevalent in a particular venue, the request
for a transfer may not be dismissed summarily. It causes disquiet and concern
to a court of justice if a person seeking justice is unable to appear, present
one’s case, bring one’s witnesses or adduce evidence. Indeed, it is the duty of
the court to assure propitious conditions which conduce to comparative
tranquillity at the trial. Turbulent conditions putting the accused’s life in
danger or creating chaos inside the court hall may jettison public justice. If
this vice is peculiar to a particular place and is persistent the transfer of
the case from that place may become necessary. Likewise, if there is general
consternation or atmosphere of tension or raging masses of people in the entire
region taking sides and polluting the climate, vitiating the necessary
neutrality to hold a detached judicial trial, the situation may be said to have
deteriorated to such an extent as to warrant transfer.”
The observations quoted above were also cited with approval in Zahira Habibulla
H. Sheikh V. State of Gujarat, wherein, the Court has also observed that if the
witnesses get threatened or are forced to give false evidence that also would
not result in a fair trial. The failure to hear material witnesses is certainly
denial of fair trial.
8.Considering the above said decision along with the facts of the
present case, to give a fair trial, opportunity must be given to the petitioner
to put forth her case and it is a settled law that justice appears to be done
and hence, to meet the ends of justice, the case in C.C.No.89 of 2010 pending
before the learned Judicial Magistrate, Aundipatty is transferred to the file of
the learned Judicial Magistrate No.2, Madurai. The learned Judicial Magistrate,
Aundipatty is directed to send the entire records in S.C.No.89 of 2010 pending
on his file to the learned Judicial Magistrate No.2, Madurai and the learned
Judicial Magistrate No.2, Madurai is also directed to dispose of the case within
a period of two months from the date of receipt of the records from the learned
Judicial Magistrate, Aundipatty.
9.With the above said direction, this petition is allowed.
Consequently, connected miscellaneous petition in M.P.(MD) No.1 of 2011 is
closed.
Arul
To
1.The Inspector of Police,
All Women Police Station,
Aundipatty.
2.The Judicial Magistrate,
Aundipatty.
3.The Judicial Magistrate No.II,
Madurai..
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.