ANITA KUSHWAHA Vs. PUSHAP SUDAN

JUDGEMENT

(1.) A three-judge bench of this Court has, by an order dated 21st April, 2015, referred these Transfer Petitions to a Constitution Bench to examine whether this Court has the power to transfer a civil or criminal case pending in any Court in the State of Jammu and Kashmir to a Court outside that State and vice versa. Out of thirteen Transfer Petitions placed before us, pursuant to the reference order, eleven seek transfer of civil cases from or to the State of Jammu and Kashmir while the remaining two seek transfer of criminal cases from the State to Courts outside that State.

(2.) The transfer petitions are opposed by the respondents, inter alia, on the ground that the provisions of Section 25 of the Code of Civil Procedure and Section 406 of the Code of Criminal Procedure, which empower this Court to direct transfer of civil and criminal cases respectively from one State to the other, do not extend to the State of Jammu and Kashmir and cannot, therefore, be invoked to direct any such transfer. The Transfer Petitions are also opposed on the ground that the Jammu and Kashmir Code of Civil Procedure, 1977 and the Jammu and Kashmir Code of Criminal Procedure, 1989 do not contain any provision empowering the Supreme Court to direct transfer of any case from that State to a Court outside the State or vice versa. It is also contended on behalf of the respondents that, in the absence of any provision empowering this Court to direct transfer of civil or criminal cases from or to the State of Jammu and Kashmir, no such power can be invoked or exercised by this Court. It is further urged that the provisions of Article 139-A of the Constitution which empowers this Court to transfer a case pending before one High Court to itself or to another High Court also has no application to the cases at hand as the Constitution 42nd Amendment Act, 1977 which inserted the said provision itself has no application to the State of Jammu and Kashmir. It is argued that in the absence of any enabling provision in the Code of Civil and Criminal Procedure or in the Constitution of India or the State Constitution for that matter, a litigant has no right to seek transfer of a civil or a criminal case pending in the State of Jammu and Kashmir to a Court outside the State or vice versa.

(3.) On behalf of the petitioners, it was, on the other hand, submitted that while Sections 25 of the Code of Civil Procedure and 406 of Code of Criminal Procedure as applicable to the rest of the country have no application to the State of Jammu and Kashmir, there was no specific or implied prohibition in the said two codes against the exercise of power of transfer by the Supreme Court under the Constitution or under any other provision of the law whatsoever. It was urged that inapplicability of the Central Civil and/or Criminal Procedure Code to the State of Jammu and Kashmir or the absence of an enabling provision in the State Code of Civil and/or Criminal Procedure does not necessarily imply that this Court cannot exercise the power of transfer, if the same is otherwise available under the provisions of the Constitution. So also, the inapplicability of Article 139-A to the State of Jammu and Kashmir by reason of non-extension of the Constitution 42nd Amendment Act to that State does not constitute a disability, leave alone, a prohibition against the exercise of the power of transfer if such power could otherwise be traced to any other source within constitutional framework.