VANDNA SHARMA Vs. STATE OF M P

JUDGEMENT

(1.) THE applicant is the complainant in the criminal case pending in the Court of Chief Judicial Magistrate, Satna and has approached this Court by filing this application for its transfer to either Sagar or Jabalpur

(2.) IT appears that the applicant and non-applicant No. 3, Ram Bihari Sharma were legally married husband and wife. A divorce by mutual consent has taken place between them by the decree passed by the District Judge, Satna on 19. 9. 1989. It further appears that the applicant had filed an application for divorce on the ground of cruelty by the noa-applicant husband. The said allegation could not, however, be investigated because of divorce by mutual consent. It, however, appears that on 18. 10. 1986, she lodged a report before the superintendent of Police, Satna alleging cruelty and forcibly being thrown out of matrimonial home, constituting offence under Section 498-A I. P. C. . The criminal case was registered on the said basis against the non-applicants 2 to 5 and charge-sheet filed in the Court of Chief Judicial Magistrate, Satna where the matter is pending. Though the applicant and her husband, non-applicant No. 3, had in the application for divorce by mutual consent agreed to withdraw this criminal case, this Court by its order dated 16. 12. 1981 passed in Misc, Cr. Case No. 290/88 held that the criminal case cannot be withdrawn as the same is not compoundable. That appears to be the reason why the criminal case is still continuing. The main reason for seeking transfer is that non-applicants 2, 3 and 4 are practising Advocate at Satna and have lot of influence in the locality. It is alleged that on 16. 9. 1989, the applicant appeared before the District Judge, Satna for getting her statement recorded. The non applicant No. 3 was absent. As soon as she stepped out of the Court Room, the non-applicant No. 3 came there and tried to drag her to the Bar Room. When her younger brother intervened, the non-applicant No. 3 assaulted him in the Court premises. He was, however, rescrued by one Vinod Pandey. It is alleged that the said Vinod Pandey unfortunately met with homicidal death on 28. 10. l989 and hence there is no one at Satna to come to their rescue. It is further alleged that in the last week of March, 1990, she received a letter from non-applicant No. 3, a photo-copy of which has been filed, threatening murder. On this ground, she claims that the case be transferred. The afore-said facts are supported by evidence of the applicant. These facts are. however, denied by the non-applicants in their reply, which is supported by affidavit of Ram Bihari Sharma, non-applicant No. 3. In view of this contradiction, it is really not possible for this Court to decide the factual controversy with any amount of satisfaction. In spite of it, the fact remains that the applicant is a lady staying at Sagar and the non-applicants 2, 3 and 4 are practising Advocates at Satna. It should not require any investigation to conclude that they are persons of influence. Apparently, therefore, the applicant is not able to match the influence or enthusiasm of the non-applicants The possibility of her being denied fair trial cannot, therefore, be ruled out. In such a situation, it would be in the interest of justice to order transfer of the case outside Satna.

(3.) SUBMISSION of the learned Counsel for the non-applicants, however, is that since allegations of cruelty were not made before the Chief Judicial Magistrate and this Court, they must be held to be an afterthought. It is true that the allegations were not made either before the Chief Judicial Magistrate trying the case or before this Court before whom the matter came in matrimonial cause. However, this Court cannot ignore the fact that the application for divorce filed by the applicant was based on cruelty. Apparently, therefore, the allegations of cruelty are not new, but had been there from the very beginning. In spite of it, this Court would not like to order transfer of the case on the ground of interference by the non-applicants 2 to 5 with the process or on holding the allegations against them as correct. This Court is, however, ordering transfer only because the position and influence exercised by the non-applicants at Satna are not likely to give the applicant a fair and impartial trial and, therefore, it is in the interest of justice to order such transfer. This, in the opinion of this Court, meets the necessary requirements of Section 407 Cr. P. C. .