Jyoti Mishra vs Dhananjaya Mishra

(Transfer Petition (Criminal) Nos. 94-95 of 2010)

AUGUST 27, 2010

[Aftab Alam and R.M. Lodha, JJ.]

2010(10) SCR 229

The following order of the Court was delivered

O R D E R

1. We have heard counsel for the petitioner.

2. No one appears for the respondent despite service of notice.

3. The petitioner is the estranged wife of the respondent. While still living

with him at Hyderabad, she had filed a written report before the Station

House Officer, P.S. Alwal, Secunderabad, that led to the institution of FIR

No. 470/2009 dated September 09, 2009 under Section 498-A of the Penal

Code citing her husband Dhananjaya Mishra (the sole respondent) and five

others as accused. The Police, after investigation, submitted charge sheet

and the proceedings against the accused are now pending before the VIth

Metropolitan Magistrate, Cyberabad in CC No. 804/2009.

4. In the meanwhile, the petitioner left her husband at Hyderabad and came

to live with her parents at Indore. She has filed this petition for transferring

the criminal case pending before the VIth Metropolitan Magistrate,

Cyberabad to a court of competent jurisdiction at Indore, Madhya Pradesh.

5. The first thing that needs to be noticed is that in the Transfer Petitions

only the husband Dhananjaya Mishra is impleaded as respondent. The other

accused in the criminal case are not made parties to these Transfer

Petitions. The Transfer Petitions are, therefore, liable to be dismissed on

that score alone.

6. Otherwise also, we are not inclined to transfer a criminal case from one

State to another solely on the ground that it would be more convenient for

the complainant (wife) to prosecute the matter there. It is true that in cases

of dissolution of marriage, restitution of conjugal rights or maintenance, this

Court shows much indulgence to the wife and ordinarily transfers the case to

a place where it would be more convenient for the wife to prosecute the

proceedings.

7. But a criminal case is on a somewhat different footing. The accused may

not be able to attend the court proceedings at Indore for many reasons, one

of which may be financial constraints, but the consequences of non-

appearance of the accused before the Indore Court would be quite drastic.

Having regard to the consequences of non-appearance of the accused in a

criminal trial, we are loath to entertain the petitioner's prayer for transfer. In a

criminal proceeding, the right of the accused to a fair trial and a proper

opportunity to defend himself cannot be ignored for the convenience of the

complainant simply because she happens to be the estranged wife.

8. For all these reasons, we are not inclined to accept the prayer for transfer

in these cases.

9. The Transfer Petitions are dismissed.