REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

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

HARITA SUNIL PARAB ........PETITIONER(s)

VERSUS

STATE OF NCT OF DELHI  AND OTHERS .....RESPONDENT(s)

with

TRANSFER PETITION (CRL.) NOs.253 OF 2017

HARITA SUNIL PARAB ........PETITIONER(s)

VERSUS

RAILWAY PROTECTION FORCE, RATLAM  AND ANOTHER .....RESPONDENT(s)

JUDGMENT

NAVIN SINHA, J.

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

The present application seeks transfer of F.I.R. No.351 of

2016 under 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.1742 of 2016 under Sections 379,

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323, 376, 354, 506, 420, IPC before the Indirapuram Police

Station,  District  Ghaziabad  (Uttar  Pradesh),  registered  on

complaints lodged by the petitioner against respondents nos. 2

to  4,  to  the  court  of  competent  jurisdiction  at  Mumbai,

Maharashtra.

2. The petitioner, who appears in person, submits that she

is  a  permanent  resident  of  Mumbai  and  is  a  practicing

Advocate before the Mumbai High Court.  Her case was not

being investigated by any police officer of New Delhi despite

her  written  complaint  to  the  Joint  Commissioner  of  Police

dated  15.07.2017  and  meeting  with  the  Commissioner  of

Police,  Deputy  Commissioner  of  Police  and  the  Assistant

Commissioner of Police. She fears that investigation may not

be  done  fairly.   She  has  been  receiving  threats  from  the

accused persons and was finding it difficult to pursue matters

in Delhi as her professional engagements in Mumbai were also

suffering because of the same.  The investigation in the FIRs is

thus  sought  to  the  transferred  to  the  court  of  competent

jurisdiction at Mumbai.

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3. Respondent  no.2  has  filed  a  counter  affidavit  that  the

petitioner has also lodged F.I.R. No.331 of 2016 under section

354-B, IPC, against one 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 of Hotel Prince, Pahar Ganj,

New Delhi.   Opposing the transfer petitions,  it  is submitted

that  the  accused  and  the  prosecution  witnesses  are  all

situated in Delhi.   The respondent who is also an advocate

practicing  at  Delhi  would  likewise  be  hindered  in  his

professional  engagements  for  like  reasons,  if  the  cases  are

transferred to Mumbai.

4. We shall notice the facts of the case only to the extent

necessary  for  purposes  of  the  present  order  so  as  not  to

prejudice  the  case  of  either  party.  The  rejoinder  by  the

petitioner does not dispute the institution of other FIRs by her

at  Delhi.   The  records  reveal  that  investigation  has  been

completed  in  both  the  present  FIRs  which  are  the  subject

matter of transfer, and separate charge sheets have been filed

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before the court  of  competent jurisdiction.   If  the petitioner

has any grievance with regard to the investigation, the remedy

lies  in  filing  an  appropriate  application  under  the  Code  of

Criminal Procedure before the court concerned, and any such

application, if filed, has to be considered on its own merits by

the concerned court in accordance with law.

5. Likewise, if the petitioner faces or is apprehensive for her

safety in pursuing her complaints at Delhi, sufficient remedies

are available to her under the law. Any such application,  if

filed, before the concerned court or the police, has to be dealt

with on its own merits in accordance with 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  cases  before  the  competent  court  at  Delhi

affecting  her  professional  engagements  at  Mumbai  and

requiring her to travel to Delhi.

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7. In  Gurcharan Das  Chadha vs.  State  of  Rajasthan,

(1966) 2 SCR 678, dealing with the issue for transfer of a case,

it was observed:

“13….The law with regard to transfer of cases is well-settled.  A  case  is  transferred  if  there  is  a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not  required  to  demonstrate  that  justice  will inevitably  fail.  He  is  entitled  to  a  transfer  if  he shows  circumstances  from  which  it  can  be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should  be  seen  to  be  done.  However,  a  mere allegation that there is apprehension that justice will not be done in a given case does not office. The  Court  has  further  to  see  whether  the apprehension is reasonable or not. To judge of the reasonableness of  the apprehension the State of the  mind  of  the  person  who  entertains  the apprehension is no doubt relevant but that is not all.  The  apprehension  must  not  only  be entertained but must appear to the Court to be a reasonable apprehension.”

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

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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 the transferred

place of 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  the  convenience  of  the

prosecution,  other  accused,  the  witnesses  and  the  larger

interest of the society.  The charge sheet in FIR No.351 of 2016

reveals that of the 40 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.

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9. In  Mrudul  M.  Damle & Anr.  vs.  Central  Bureau of

Investigation, New Delhi, 2012 (5) SCC 706, it was noticed

that early conclusion of the trial becomes much more difficult

involving more expenses for  the prosecution by it  having to

bear travelling expenses of official and non-official witnesses

and all  of  which ultimately causes the trial  to linger on for

years.

10. In our view, at this stage, the apprehensions voiced by

the petitioner of possible harm to her at Delhi is too nebulous

a ground for transfer.  On her own pleadings, the petitioner

has  been  travelling  from  Mumbai  to  Delhi  since  long  for

professional reasons.  In Parminder Kaur vs. State of U.P.,

(2007) 15 SCC 307, it was observed:

“20. The petitioner is a person of means and it will not be difficult for her to attend the hearing of  the  criminal  cases  pending  in  the  Court  of Chief  Judicial  Magistrate,  Rampur.  The comparative inconvenience of the litigant parties are  not  the  only  criterion  for  transferring  the cases from one State to another State,  but the Court  has  to  visualize  the  comparative inconvenience and hardships likely to be caused to the witnesses besides the burden to be borne

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by  the  State  Exchequer  in  making  payment  of travelling and other expenses of the official and non-official witnesses who will have to travel by train  from Rampur to  Delhi  or  Chandigarh,  as the  case  may  be,  for  attending  the  court proceedings  if  the  cases  are  ordered  to  be transferred to transferee court….”

11. We are,  therefore,  not  satisfied that  the  two cases are

required  to  be  transferred  to  the  court  of  competent

jurisdiction at Mumbai.  The Transfer petitions are, therefore,

rejected.

TRANSFER PETITION (CRL.) NOs.253 OF 2017

12. The  petitioner  seeks  transfer  of  RTM-CR-641/2017,

registered against her under Sections 145(B), 146, 137 of the

Railways Act pending before the Special Railway Magistrate,

Ratlam,  to  the  Court  of  competent  jurisdiction  at  Mumbai.

Similar grounds have been urged of her convenience to attend

the proceedings at Mumbai and the inconvenience that would

be caused to her by having to travel to Ratlam.  She is also

stated to have lodged a complaint on 16.02.2017 before the

Government Railway Police at Ratlam with regard to the same

occurrence.

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13. In  view  of  the  discussion  hereinbefore,  the  present

Transfer Petition is also rejected.

………………………………….J.

(Adarsh Kumar Goel)        

……….………………………..J.

(Rohinton Fali Nariman)

……….………………………..J.

  (Navin Sinha)   

New Delhi,

March 28, 2018.

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