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NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL/CRIMINAL ORIGINAL JURISDICTION TRANSFER PETITION (C) No.  644 OF 2012

MILAP CHORARIA                                Petitioner(s)                                 VERSUS

SANJAY KUMAR JHUNJHUNWALA & ORS.              Respondent(s) WITH

WRIT PETITION (CRIMINAL) NO. 82 OF 2016 O R D E R

T.P.(C) NO. 644 OF 2012  

1. This  transfer  petition  is  filed  with  the following prayer :-

“(a)  transfer  suit  No.  250  of  2011, titled as “Sanjay Jhunjhunwala Vs. Milap Choraria & Ors.” pending in the court of Hon'ble  Mr.  Justice  I.P.  Mukerji  of Calcutta  High  Court  along  with  all  the applications and records of earlier Civil Suit No. 244 of 1990 filed by above named respondent No. 1 against the Petitioner, from  the  original  side  of  the  Calcutta High  Court  to  the  competent  court  in Delhi.”

2. The  petitioner,  who  has  appeared  in-person, submits  that  in  view  of  his  health  problems  and advanced age, he is not in a position to travel to

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Kolkata and, therefore, the suit may be transferred to Delhi where he is presently residing.  There is also  an  allegation  of  threat  to  the  life  of  the petitioner.   

3. The learned counsel for the respondents points out  that  the  petitioner  had  been  prosecuting  many cases in Kolkata when he filed this transfer petition in the year 2012 before this Court.  It is submitted that  the  cause  of  action  arose  in  Kolkata  and, therefore, the suit could be tried only in Kolkata.

4. Having  heard  the  petitioner-in-person  and  the learned counsel appearing for the respondents, we do not find any special reason for the transfer.  The petitioner submits that this court may exercise its jurisdiction under Article 142 of the Constitution of India and dismiss the suit as not maintainable, since according to the petitioner, the suit is an abuse of process, frivolous and not maintainable as an earlier suit for the same cause of action had been dismissed by the High Court vide order dated 16.03.2006.

5. We are afraid, the jurisdiction under Article 142 of  the  Constitution  of  India  is  not  meant  to  be invoked in such situations.  It is for the petitioner to pursue his remedies in case he is of the view that

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the  suit  is  not  maintainable,  including  raising  a preliminary issue in that regard.  Therefore, this Transfer Petition is dismissed, making it clear that in  case, a  preliminary issue  is raised,  the court will first try that issue before the trial of the case. W.P. (Crl.) NO. 82 of 2016      1. This Writ Petition is filed under Article 32 of the  Constitution  of  India  with  the  following prayers:-

“(A)  Issue a writ of mandamus or any other  appropriate  writ,  order  or direction  holding  that  under  the Constitutional Scheme to protect the Fundamental Rights under Article 14, 19(1)(d),  19(1)(e)  and  21  of  the Constitution, Respondent No. 3 is duty bound to hold the investigation in the matter of crimes committed against the petitioner,  which  cannot  be  covered within the definition, meaning, scope and ambit of the subject matter of the law and order or public order being enumerated under the State List under Article 246(1) of the Constitution of India,  since  such  crimes  prevailed under  the  Criminal  Conspiracy  and Connivance between the Politicians in Powers of the Respondent no.2 on one side and the Respondent No. 4 and/or 5 on the other side and prevailed under open patronage, protection and support

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from the concerned Public Servants of the respective Departments or Public Authority  under  the  control  or supervision  of  the  Respondent  No.  2 which more fully described in the full set  of  the  application  dated  10th

November,  2008  (Annexure  P-37) addressed to H.E. the then Governor of West  Bengal  with  copy  to  the  then Chief  Minister  of  West  Bengal  and described in another application being subject  matter  of  File  No. 419/05/2009-ADV.IV (Annexure P-39) of the  concerned  Department  of  the Respondent No. 1; (B) Issue a writ of mandamus or any other  appropriate  writ,  order  or direction upon the Respondent no. 3 to hold  the  preliminary enquiry/investigation  in  the  matters more fully described in the full set of the application dated 10th November, 2008 (Annexure P-37) addressed to H.E. the then Governor of West Bengal with copy  to  the  then  Chief  Minister  of West Bengal and described in another application  being  subject  matter  of File No. 419/05/2009-ADV.IV (Annexure P-39) of the concerned Department of the Respondent No. 1 and submit its status  report  for  further  order  or direction  by  the  Hon'ble  Supreme Court; (C) Issue show cause upon Respondents, that why such writ of mandamus or any

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other  appropriate  writ,  order  or direction  should  not  be  issued  in terms of the prayer as aforesaid; and (D) Allow the present Writ Petition with the exemplary costs.”          

2. When this writ petition was considered by this Court on 01.08.2016, the following order was passed:-

“Petitioner  appears  in-person  and submits that he has also filed Transfer Petition (C) No. 644 of 2012.

List the Transfer Petition (C) No. 644 of 2012 along with this petition.”   

3. We have already dismissed the transfer petition as  above.   We  do  not  find  any  special  reason  to entertain this writ petition filed under Article 32 of  the  Constitution  of  India.   It  is  for  the petitioner, if so advised, to approach the High Court for appropriate relief.  Without prejudice to such liberty given to the petitioner, the writ petition is dismissed.    

.......................J.               [ KURIAN JOSEPH ]  

.......................J.               [ R. BANUMATHI ]  

New Delhi; May 5, 2017.