Amit Sharma v. Priya Sharma

10.02.2025 Sl. No.: 128 Court No.30 BM C.O. 3950 of 2024 Shri Amit Sharma Vs.

Smt. Priya Sharma Ms. Sanyya Pawar ... for the petitioner Mr. Vikas Baisya Mr. Soumya Nag Mr. Rajdeep Sengupta Mr. Namrata Chatterjee ... for the opposite party 1.

The present revisional application has been preferred praying for transfer of Matrimonial Suit No.188 of 2023 pending adjudication before the learned Court District Judge, Paschim Bardhaman, Asansol to a Court of competent jurisdiction in Kolkata, West Bengal.

2.

On hearing the learned counsel for the parties and on perusal of materials on record, it appears that the petitioner husband has made the prayer for transfer on the ground that he is facing hostile atmosphere at Asansol.

3.

Admittedly, the opposite party wife had moved the Hon'ble Supreme Court with a transfer petition bearing No.2437 of 2022, praying for transfer of the divorce proceedings in the present case.

4.

The prayer was allowed and the divorce proceeding was transferred from Gurugram, Haryana to Asansol, West Bengal.

5.

Admittedly the wife/opposite party herein is a resident of Asansol, Paschim Bardhaman, West Bengal.

6.

The petitioner/husband herein is a resident of Gurugram, Haryana.

7.

The Supreme Court in Umesh Kumar Sharma vs State of Uttarakhand & Ors., Transfer Petition (CRL.) Nos. 534-536 of 2019, on 16th October, 2020, held:- "17. In Captain Amrinder Singh Vs.

Prakash Singh Badal & Ors.5, Justice P.

Sathasivam, as he then was, speaking for the three judge Bench, on the issue of transfer of criminal cases, observed as follows: - "48. The analysis of all the materials, the transfer of the case as sought for, at this stage, is not only against the interest of prosecution but also against interest other accused persons, the prosecution witnesses and the convenience of all concerned in the matter.

* * * *

51. We have already pointed out that a mere allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. Considering the totality of all the circumstances, we are of the opinion that in a secular, democratic Government, governed by the rule of law, the State of Punjab is responsible for ensuring free, fair and impartial trial to the accused, notwithstanding 5 (2009) 6 SCC 260 the nature of the accusations made against them.

In case on hand, apprehension entertained by the petitioners cannot be construed as reasonable one and the case cannot

be transferred on a mere allegation that there is apprehension that justice will not be done."

18. Let us now examine another precedent on transfer of criminal cases.

In Nahar Singh Yadav & Others vs.

Union of India & Ors.6, Justice D.K.

Jain writing for the three Judge Bench discussed scope transfer under Section 406 CrPC in the following terms:- "22. It is, however, the trite law that power under Section 406 CrPC has to be construed strictly and is to be exercised sparingly and with great circumspection. It needs little emphasis that a prayer for transfer should be allowed only when there is a wellsubstantiated apprehension that justice will not be dispensed impartially, objectively and without any bias. In the absence of any material demonstrating such apprehension, this Court will not entertain application for transfer of a trial, as any transfer of trial from one State to another implicitly reflects upon the credibility of not only the entire State judiciary but also the prosecuting agency, which would include the Public Prosecutors as well." 6 (2011) 1 SCC

19. On the same line is the decision in Harita Sunil Parab vs. State (NCT of Delhi) & ors7, where Justice Navin Sinha, enunciated the law on transfer jurisdiction in the following terms:- "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 relevant considerations but cannot override all other considerations such as 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 transferred place trial.

The convenience of the parties does not mean the convenience of the petitioner alone who approaches the court on misconceived notions of apprehension.

Convenience for the purposes of transfer means convenience prosecution, other accused, witnesses and the larger interest of the society. The charge-sheet in FIR No. 351 reveals that 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." 7 (2018) 6 SCC 358

20. The above legal enunciations make it amply clear that transfer power under section 406 of the Code is to be invoked sparingly. Only when fair justice is in peril, a plea for transfer might be considered.

The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises.

21. While assurance of a fair trial needs to be respected, the plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person. In his pleadings and arguments, the petitioner in my assessment has failed to demonstrate that because of what he endured in 2018, it is not possible for the courts in the state to dispense justice objectively and without any bias. It can't also be overlooked that the petitioner is involved in several cases and this year itself has generated few on his own in state of Uttarakhand. Therefore, it is difficult to accept that justice for the petitioner can only be ensured by transfer of three cases mentioned in these petitions.

22. While considering a plea for transfer, the convenience of parties would be a relevant consideration.

It can't just be the convenience of petitioner but also Complainant, the Witnesses, the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account, it is clear that the petitioner has failed to make out a credible case for transfer trial to alternative venues outside the State."

8.

Though the petitioner/husband has claimed hostile atmosphere at Asansol there is no document to substantiate his said contention.

9.

Keeping in mind that the wife (facing divorce proceedings) is a resident of Asansol and her prayer for transfer of the proceeding was allowed by the Apex Court, this Court is not inclined to grant relief as prayed for, more so because no materials has been placed by the petitioner/husband in support of contentions of facing hostile atmosphere at Asansol. 10.

CO 3950 of 2024 stands dismissed.

11.

Trial Court to proceed expeditiously to finally dispose the proceeding.

12.

Liberty is granted to the petitioner/husband to avail the facility of virtual hearing before the trial court.

13.

Pending applications stand disposed of.

14.

Interim order, if any, stands vacated.

15.

Urgent Xerox certified copies of this order, if applied for, shall be supplied to the learned counsel for the parties as expeditiously as possible, in compliance of usual formalities.

( Shampa Dutt (Paul), J. )