HARITA SUNIL PARAB versus STATE OF NCT OF DELHI AND OTHERS

[2018] 3 S.C.R. 732

[2018] 3 S.C.R.

HARITA SUNIL PARAB

STATE OF NCT OF DELHI AND OTHERS

(Transfer Petition (Crl.) Nos. 254-255 of 2017)

MARCH 28, 2018

[ADARSH KUMAR GOEL, R. F. NARIMAN ANDNAVIN SINHA, JJ.]

Transfer Petitions – Petitioner, resident of Mumbai and aCpracticing Advocate before Mumbai High Court, seeks transfer oftwo FIRs registered by her against respondents nos. 2 to 4 in Delhiand Ghaziabad to Mumbai – Plea of petitioner that she fears thatinvestigation may not be done fairly as she has been receiving threatsfrom accused persons – Held: Investigation is complete in both theDFIRs which are the subject matter of transfer – Charge sheet in oneof the FIR reveals that of the 40 witnesses, petitioner alone is fromMumbai, two are from Ghaziabad and one is from NOIDA – Chargesheet of the other FIR is not on record but presumption can bedrawn that the position would be similar in that case also –Apprehension of not getting fair and impartial enquiry or trialEhas to be reasonable and not imaginary, based upon conjecturesand surmises – If the petitioner has any grievance with regard tothe investigation, the remedy lies in filing an appropriate applicationunder Cr.P.C, before the court concerned – At this stage, theapprehensions voiced by petitioner of possible harm to her at Delhiis too nebulous ground for transfer – As far as inconvenience isFconcerned, it is her own pleadings, that she has been travellingfrom Mumbai to Delhi since long for professional reasons – Casesin question are not required to be transferred to Mumbai – PenalCode, 1860 – ss. 323, 354, 354A, 376, 379, 420, 506 and 509 –Code of Criminal Procedure, 1973 – Railways Act – ss.145(B), 146,G137.

Transfer Petitions– Relevant considerations for– Discussed.

Rejecting the transfer petitions, the Court

HELD: TRANSFER PETITION (CRL.) Nos. 254-255 OF

1.1 The records reveal that investigation has beencompleted in both the present FIRs which are the subject matterof transfer, and separate charge sheets have been filed beforethe court of competent jurisdiction. If the petitioner has anygrievance with regard to the investigation, the remedy lies infiling an appropriate application under the Code of CriminalProcedure before the court concerned, and any such application,if filed, has to be considered on its own merits by the concernedcourt in accordance with law. Likewise, if the petitioner faces oris apprehensive for her safety in pursuing her complaints at Delhi,sufficient remedies are available to her under the law. Any suchapplication, if filed, before the concerned court or the police, hasto be dealt with on its own merits in accordance with law.[Paras 4, 5] [736-B-D]1.2 The apprehension of not getting fair and impartialenquiry or trial is required to be reasonable and not imaginary,based upon conjectures and surmises. No universal or hard andfast rule can be prescribed for deciding transfer petition, whichwill always have to be decided on the facts of each case.Convenience of party may be one of the relevant considerationsbut cannot override all other considerations such as the availabilityof witnesses exclusively at the original place, making it virtuallyimpossible to continue with the trial at the place of transfer, andprogress of which would naturally be impeded for that reason atthe transferred place of trial. The convenience of the parties doesnot mean the convenience of the petitioner alone who approachesthe court on misconceived notions of apprehension. Conveniencefor the purposes of transfer means the convenience of theprosecution, other accused, the witnesses and the larger interestof the society. The charge sheet in one of the FIR reveals that ofthe 40 witnesses, the petitioner alone is from Mumbai, two arefrom Ghaziabad, and one is from NOIDA. The charge sheet is ofthe other FIR is not on record. reasonable presumption can bedrawn that the position would be similar in the same also. Early

[2018] 3 S.C.R.

Aconclusion of the trial becomes much more difficult involving moreexpenses for the prosecution by it having to bear travellingexpenses of official and non-official witnesses and all of whichultimately causes the trial to linger on for years. At this stage,the apprehensions voiced by the petitioner of possible harm toher at Delhi is too nebulous ground for transfer. On her ownBpleadings, the petitioner has been travelling from Mumbai toDelhi since long for professional reasons. The two cases are notrequired to be transferred to the court of competent jurisdictionat Mumbai. [Paras 8-11] [737-A-F; 738-B]

TRANSFER PETITION (CRL.) No. 253 of 2017C

1.3 The petitioner seeks transfer of RTM-CR-641/2017,registered against her under Sections 145(B), 146, 137 of theRailways Act pending before the Special Railway Magistrate,Ratlam, to the Court of competent jurisdiction at Mumbai. Inview of the discussion hereinbefore, the present Transfer PetitionDis also rejected. [Paras 12, 13] [738-C-D]

Gurcharan Das Chadha v. State of Rajasthan[1966] 2 SCR 678 ; Mrudul M. Damle & Anr. v.Central Bureau of Investigation, New Delhi (2012) 5SCC 706 : [2012] 5 SCR 919 ; Parminder Kaur v.EState of U.P. (2007) 15 SCC 307 : [2007] 3 SCR 1021– relied on.

Case Law Reference

[1966] 2 SCR 678 relied onPara 7F[2012] 5 SCR 919 relied onPara 9[2007] 3 SCR 1021 relied on Para 10

CRIMINAL ORIGINAL JURISDICTION : Transfer PetitionG(Criminal) Nos. 254-255 of 2017.

Under Section 406 of the Criminal Procedure Code, 1973

WITH

Transfer Petition (Crl.) No. 253 of 2017.

Ms. Harita Sunil Parab (Petitioner-in-Person).

Rana Mukherjee, Sr. Adv, Ms. Ranjan Narayan, T. A. Khan,B. V. Balaram Das, Sanjay Kumar Tyagi, Ms. Priyanka, V. Nath Mishra,Anantha Narayana M.G., Advs for the Respondents.

R. D. Upadhyay (Respondent No.2 -in-Person).

The Judgment of the Court was delivered by

NAVIN SINHA, J.

TRANSFER PETITION (CRL.) NOs.254-255 OF 2017

1. The present application seeks transfer of F.I.R. No.351 of 2016under 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.1742of 2016 under Sections 379, 323, 376, 354, 506, 420, IPC before theIndirapuram Police Station, District Ghaziabad (Uttar Pradesh), registeredon complaints lodged by the petitioner against respondents nos. 2 to 4, tothe court of competent jurisdiction at Mumbai, Maharashtra.

2. The petitioner, who appears in person, submits that she is apermanent resident of Mumbai and is practicing Advocate before theMumbai High Court. Her case was not being investigated by any policeofficer of New Delhi despite her written complaint to the JointCommissioner of Police dated 15.07.2017 and meeting with theCommissioner of Police, Deputy Commissioner of Police and the AssistantCommissioner of Police. She fears that investigation may not be donefairly. She has been receiving threats from the accused persons andwas finding it difficult to pursue matters in Delhi as her professionalengagements in Mumbai were also suffering because of the same. Theinvestigation in the FIRs is thus sought to the transferred to the court ofcompetent jurisdiction at Mumbai.

3. Respondent no.2 has filed counter affidavit that the petitionerhas also lodged F.I.R. No.331 of 2016 under section 354-B, IPC, againstone 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 ofHotel Prince, Pahar Ganj, New Delhi. Opposing the transfer petitions, itis submitted that the accused and the prosecution witnesses are allsituated in Delhi. The respondent who is also an advocate practicing atDelhi would likewise be hindered in his professional engagements forlike reasons, if the cases are transferred to Mumbai.

A4. We shall notice the facts of the case only to the extent necessaryfor purposes of the present order so as not to prejudice the case ofeither party. The rejoinder by the petitioner does not dispute the institutionof other FIRs by her at Delhi. The records reveal that investigation hasbeen completed in both the present FIRs which are the subject matter oftransfer, and separate charge sheets have been filed before the court ofBcompetent jurisdiction. If the petitioner has any grievance with regardto the investigation, the remedy lies in filing an appropriate applicationunder the Code of Criminal Procedure before the court concerned, andany such application, if filed, has to be considered on its own merits bythe concerned court in accordance with law.

5. Likewise, if the petitioner faces or is apprehensive for her safetyin pursuing her complaints at Delhi, sufficient remedies are available toher under the law. Any such application, if filed, before the concernedcourt or the police, has to be dealt with on its own merits in accordancewith law.

6. The only surviving issue left is with regard to the inconvenience,as alleged, that may be caused to the petitioner in pursuing her casesbefore the competent court at Delhi affecting her professionalengagements at Mumbai and requiring her to travel to Delhi.

7. In Gurcharan Das Chadha vs. State of Rajasthan, (1966) 2ESCR 678, dealing with the issue for transfer of case, it was observed:

“13….The law with regard to transfer of cases is well-settled. Acase is transferred if there is reasonable apprehension on thepart of party to case that justice will not be done. petitioneris not required to demonstrate that justice will inevitably fail. He isFentitled to transfer if he shows circumstances from which it canbe inferred that he entertains an apprehension and that it isreasonable in the circumstances alleged. It is one of the principlesof the administration of justice that justice should not only be donebut it should be seen to be done. However, mere allegation thatGthere is apprehension that justice will not be done in given casedoes not office. The Court has further to see whether theapprehension is reasonable or not. To judge of the reasonablenessof the apprehension the State of the mind of the person whoentertains the apprehension is no doubt relevant but that is not all.The apprehension must not only be entertained but must appearHto the Court to be reasonable apprehension.”

8. The apprehension of not getting fair and impartial enquiry ortrial is required to be reasonable and not imaginary, based upon conjecturesand surmises. No universal or hard and fast rule can be prescribed fordeciding transfer petition, which will always have to be decided on thefacts of each case. Convenience of party may be one of the relevantconsiderations but cannot override all other considerations such as theavailability of witnesses exclusively at the original place, making it virtuallyimpossible to continue with the trial at the place of transfer, and progressof which would naturally be impeded for that reason at the transferredplace of trial. The convenience of the parties does not mean theconvenience of the petitioner alone who approaches the court onmisconceived notions of apprehension. Convenience for the purposesof transfer means the convenience of the prosecution, other accused,the witnesses and the larger interest of the society. The charge sheet inFIR No.351 of 2016 reveals that of the 40 witnesses, the petitioner aloneis from Mumbai, two are from Ghaziabad, and one is from NOIDA. Thecharge sheet of FIR No.1742 of 2016 is not on record. reasonablepresumption can be drawn that the position would be similar in the samealso.

9. In Mrudul M. Damle & Anr. vs. Central Bureau ofInvestigation, New Delhi, 2012 (5) SCC 706, it was noticed that earlyconclusion of the trial becomes much more difficult involving moreexpenses for the prosecution by it having to bear travelling expenses ofofficial and non-official witnesses and all of which ultimately causes thetrial to linger on for years.

10. In our view, at this stage, the apprehensions voiced by thepetitioner of possible harm to her at Delhi is too nebulous ground fortransfer. On her own pleadings, the petitioner has been travelling fromMumbai to Delhi since long for professional reasons. In ParminderKaur vs. State of U.P., (2007) 15 SCC 307, it was observed:

“20. The petitioner is person of means and it will not be difficultfor her to attend the hearing of the criminal cases pending in theCourt of Chief Judicial Magistrate, Rampur. The comparativeinconvenience of the litigant parties are not the only criterion fortransferring the cases from one State to another State, but theCourt has to visualize the comparative inconvenience andhardships likely to be caused to the witnesses besides the burdento be borne by the State Exchequer in making payment of travelling

Aand other expenses of the official and non-official witnesses whowill have to travel by train from Rampur to Delhi or Chandigarh,as the case may be, for attending the court proceedings if thecases are ordered to be transferred to transferee court….”

11. We are, therefore, not satisfied that the two cases are requiredBto be transferred to the court of competent jurisdiction at Mumbai. TheTransfer petitions are, therefore, rejected.

TRANSFER PETITION (CRL.) NOs.253 OF 2017

12. The petitioner seeks transfer of RTM-CR-641/2017, registeredagainst her under Sections 145(B), 146, 137 of the Railways Act pendingCbefore the Special Railway Magistrate, Ratlam, to the Court of competentjurisdiction at Mumbai. Similar grounds have been urged of herconvenience to attend the proceedings at Mumbai and the inconveniencethat would be caused to her by having to travel to Ratlam. She is alsostated to have lodged complaint on 16.02.2017 before the GovernmentDRailway Police at Ratlam with regard to the same occurrence.

13. In view of the discussion hereinbefore, the present TransferPetition is also rejected.

Divya Pandey

Transfer Petitions rejected.