# Smt. Roshan Jahan v. Hasmat Ali @ Chhedu & Anr

- **Citation:** (2024) 5 ILRA 1840
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-24
- **Case number:** Transfer Application (Criminal) No. 66 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-roshan-jahan-v-hasmat-ali-chhedu-anr-51894
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973- Sections 125, 340 & 407 - Transfer
Application - to transfer two Misc. Cases, from
family court, Sitapur to Family court, Lucknow -
on the ground of apprehension that opposite
party may herm her and her family members -
and they tried to influence the proceedings of
trial at Sitapur - court finds that, the few
instances may suggest heightened feelings
amongst the contesting parties but they do not
call for transfer of proceedings to another district
- if she is aggrieved, she may approach
competent forum for redressal of her grievances
- held, the relative convenience and difficulties of
all the parties are involved in the process which
are taken into account - no credible case for
transfer of trial to alternative venues outside the
district is made out in present case - it is just a
ploy adopted by the applicant to delay the
proceedings - thus, no interference is required to
entertain the instant application, accordingly,
rejected. (Para - 8, 9)

Transfer Application Rejected. (E-11)

List of Cases cited:

## Text

1840 INDIAN LAW REPORTS ALLAHABAD SERIES
however, cannot be mutually destructive of
each other.

16. In State Bank of India and
others Vs. S.N. Goyal; (2008) 8 SCC 92 the
Hon'ble Supreme Court has held as under :-

"Second appeals would lie in cases
which involve substantial questions of law. The
word 'substantial' prefixed to 'question of law'
does not refer to the stakes involved in the case,
nor intended to refer only to questions of law of
general importance, but refers to impact or effect
of the question of law on the decision in the lis
between the parties. 'Substantial questions of
law' means not only substantial questions of law
of general importance, but also substantial
question of law arising in a case as between the
parties. In the context of section 100 CPC, any
question of law which affects the final decision in
a case is a substantial question of law as between
the parties. A question of law which arises
incidentally or collaterally, having no bearing in
the final outcome, will not be a substantial
question of law. Where there is a clear and
settled enunciation on a question of law, by this
Court or by the High Court concerned, it cannot
be said that the case involves a substantial
question of law."

24. Similar view has been taken by a
Coordinate Bench of this Court, in the case of
Bhagauti Singh @ Chedi Singh S/O
Madhuban Singh versus Mata Prasad Singh
S/O Bhaggu Singh(supra), in which it has been
held that it is crystal clear that the High Court in
exercise of power under Section 100 CPC
should not interfere in the findings of fact
recorded by the first appellate court, which is a
final court of fact or concurrent findings of fact
unless the same are based on no evidence or
perverse.

25. A coordinate Bench of this Court, in the
case of Jangi Singh versus Brij Mohan Singh
and others(supra), has held that both the courts
below have recorded their finding on the basis of
the evidence on record which does not give any
rise to the substantial question of law as raised by
the defendant-appellant. However observation in
regard to appurtenant land is not applicable on
the facts and circumstances of this case.

26. The Hon'ble Supreme Court in the
case of Kapil Kumar versus Raj Kumar; (2022)
10 SCC 281, has held that unless the concurrent
findings recorded by the courts below were
found to be perverse, the same were not required
to be interfered with by the High Court in
exercise of powers under Section 100 CPC.

27. In view of above and considering the
overall facts and circumstances of the case, this
Court is of the view that trial court as well as the
first appellate court have recorded finding of
facts on the basis of the pleadings and evidence
as well as the commission report, which does not
suffer from any illegality,error or perversity
which may require any interference by this
Court. The aforesaid substantial questions of law
formulated by this Court are answered
accordingly. This second appeal has been filed
on mis-conceived and baseless grounds, which
is liable to be dismissed.

28. The second appeal is, accordingly,
dismissed with cost.
----------
(2024) 5 ILRA 1840
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Transfer Application (Criminal) No. 66 of 2022

Smt. Roshan Jahan ...Applicant
Versus
Hasmat Ali @ Chhedu & Anr.
 ...Opposite Parties
5 All. Smt. Roshan Jahan Vs. Hasmat Ali @ Chhedu & Anr.
1841
Counsel for the Applicant:
Subhash Bisaria

Counsel for the Opposite Parties:

Criminal Law - Criminal Procedure Code,
1973- Sections 125, 340 & 407 - Transfer
Application - to transfer two Misc. Cases, from
family court, Sitapur to Family court, Lucknow -
on the ground of apprehension that opposite
party may herm her and her family members -
and they tried to influence the proceedings of
trial at Sitapur - court finds that, the few
instances may suggest heightened feelings
amongst the contesting parties but they do not
call for transfer of proceedings to another district
- if she is aggrieved, she may approach
competent forum for redressal of her grievances
- held, the relative convenience and difficulties of
all the parties are involved in the process which
are taken into account - no credible case for
transfer of trial to alternative venues outside the
district is made out in present case - it is just a
ploy adopted by the applicant to delay the
proceedings - thus, no interference is required to
entertain the instant application, accordingly,
rejected. (Para - 8, 9)

Transfer Application Rejected. (E-11)

List of Cases cited:

1. Rajkumar Sabu Vs Sabu Trade private ltd.
(2021 SCC online SC 3780,

2. Satish jaggi Vs St. of Chhatisgarh (2007) 3 SCC
62),

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Subhash Bisaria, learned
counsel for the applicant and Ms. Ankita
Tripathi, learned A.G.A. for the State as well
as perused the record.

2. This application Under Section 407
Cr.P.C. has been moved on behalf of
applicant with a prayer to transfer the Misc.
Case
No.1151/2019,
Misc.
Case
No.349/2021 and Misc. Case No.942/2021
for recovery of maintenance amount which
is pending before the learned Principal
Judge, Family Court, Sitapur, arising out of
Criminal Case No.3702182/2014, under
Section 125 Cr.P.C. and also Misc. Case
No.741/2017, under Section 340 Cr.P.C. to
the court of learned Principal Judge, Family
Court, Lucknow.

3. Learned Counsel for the applicant
submits that the applicant is the wife of
opposite party No.1 and she lives in
Lucknow, Uttar Pradesh and she always
lives in fear whenever she has to appear in
District Court, Sitapur as she has an
apprehension that the opposite party no.1
may harm her. He further submits that
opposite party no.1 always threaten her and
abused her and her family members
whenever, she appeared in the Trial Court,
Sitapur. He further submits that proceedings
under Section 125 Cr.P.C. are also pending
before the Family Court, Sitapur between
the opposite party No.1 and the applicant.
He further submits that the opposite party
No.1 has tried to influence the proceeding of
trial, thus, he submits that aforesaid case
may be transferred to the Familcy Court,
Lucknow so that the applicant may fully
cooperate in the conclusion of case without
any fear and the case may also be concluded
in a fair manner.

4. On the other hand, learned A.G.A.
for the State submits that it is just a ploy to
delay the proceedings of the aforesaid case.
There is no proper ground for transferring of
the aforesaid case from one District Court to
another District Court. She further submits
that the applicant is adopting a delaying
tactics as she has not made any averment
regarding the injustice been done to her
during the course of proceedings. Moreover,
it cannot just be the convenience of the
applicant but the private opposite party, the
1842 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses and the prosecution. The larger
issue of case normally being conducted by
the jurisdictional court must also weigh on
the issue. She is having an apprehension that
the opposite party may harm, which is not a
ground to transfer the case from one District
to another. Thus, the instant application
being devoid of merits is liable to be
rejected.

5. After considering the over all facts
and circumstances of the case as well as
after hearing the learned counsel for the
respective parties, this Court finds that the
applicant and opposite party no.1 are
contesting cases against each other in the
concerned courts and it appears that the
applicant has filed the present application
only considering her own advantage, which
is not a ground to transfer the case from one
District to another District.

6. Further, the Hon'ble Supreme Court
of India in the case of Rajkumar Sabu vs.
Sabu Trade Private Ltd reported in 2021
SCC OnLine SC 378 has been pleased to
observe in paragraph Nos.9 and 10, which
are reproduced hereinbelow:

"9. Ordinarily, if a Court has
jurisdiction to hear a case, the case ought to
proceed in that Court only. The proceeding
in the Salem Court has not been questioned
on the ground of lack of jurisdiction but on
the ground contemplated in Section 406 of
the1973 Code. Jurisdiction under the
aforesaid provision ought to be sparingly
used, as held in the case of Nahar Singh
Yadav v. Union of India [(2011) 1 SCC 307].
Such jurisdiction cannot be exercised on
mere apprehension of one of the parties that
justice would not be done in a given case.
This was broadly the ratio in the case of
Gurcharan Dass Chadha (supra). In my
opinion if a Court hearing a case possesses
the jurisdiction to proceed with the same,
solely based on the fact that one of the
parties to that case is unable to follow the
language of that Court would not warrant
exercise of jurisdiction of this Court under
Section 406 of the 1973 Code. Records
reveal that aid of translator is available in
the Salem Court, which could overcome this
difficulty. If required, the petitioner may take
the aid of interpreter also, as may be
available.

10. The petitioner's plea for
transfer is based primarily on convenience.
But convenience of one of the parties cannot
be a ground for allowing his application.
Transfer of a criminal case under Section
406 of the 1973 Code can be directed when
such transfer would be "expedient for the
ends of justice". This expression entails
factors beyond mere convenience of the
parties or one of them in conducting a case
before a Court having jurisdiction to hear
the case. The parties are related, and are
essentially fighting commercial litigations
filed
in
multiple
jurisdictions.
While
instituting civil suits, both the parties had
chosen fora, some of which were away from
their primary places of business, or the main
places of business of the defendants. The
ratio of the decision of this Court in the case
of Mrudul M. Damle (supra) cannot apply in
the factual context of this case. In that case,
a proceeding pending in the Court of Special
Judge, CBI Cases, Rohini Courts, New
Delhi was directed to be transferred to the
Special Judge, CBI cases, Court of Session,
Thane. Out of 92 witnesses enlisted in the
charge sheet, 88 were from different parts of
Maharashtra. That was a case which this
Court found was not "Delhi-centric". The
accused persons were based in western part
of this Country. It was because of these
reasons, the case was directed to be
transferred. The circumstances surrounding
the case pending in the Salem Court are
5 All. Smt. Roshan Jahan Vs. Hasmat Ali @ Chhedu & Anr.
1843
entirely different. In the case of Rajesh
Talwar v. CBI [(2012) 4 SCC 217] it was
held: ?

"46. Jurisdiction of a court to
conduct criminal prosecution is based on the
provisions of the Code of Criminal
Procedure. Often either the complainant or
the accused have to travel across an entire
State to attend to criminal proceedings
before a jurisdictional court. In some cases
to reach the venue of the trial court, a
complainant or an accused may have to
travel across several States. Likewise,
witnesses too may also have to travel long
distances in order to depose before the
jurisdictional
court.
If
the
plea
of
inconvenience for transferring the cases
from one court to another, on the basis of
time taken to travel to the court conducting
the criminal trial is accepted, the provisions
contained in the Criminal procedure Code
earmarking the courts having jurisdiction to
try cases would be rendered meaningless.
Convenience
or
inconvenience
are
inconsequential so far as the mandate of law
is concerned. The instant plea, therefore,
deserves outright rejection.""

7. Further, the Hon'ble Supreme Court
in the case of Satish Jaggi v. State of
Chhattisgarh, (2007) 3 SCC 62 has been
pleased to observe paragraph Nos. 5, 6 and
7, which are reproduced hereinbelow:-

"5. The law with regard to transfer
of cases is well settled. This Court in
Gurcharan Das Chadha v. State of
Rajasthan [AIR 1966 SC 1418] held that 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. This Court said
that 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. This Court further held that 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. The court
has further to see whether the apprehension
is reasonable or not. This Court also said
that to judge the reasonableness of the
apprehension, the state of 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.

6. It was further held by this Court
in
Maneka
Sanjay
Gandhi
v.
Rani
Jethmalani [(1979) 4 SCC 167 : 1979 SCC
(Cri) 934 : AIR 1979 SC 468] that assurance
of a fair trial is the first imperative of the
dispensation of justice and the central
criterion for the court to consider when a
motion for transfer is made is not the
hypersensitivity or relative convenience of a
party or availability of legal services or any
like grievance. Something more substantial,
more compelling, more imperilling, from the
point of view of public justice and its
attendant environment, is necessitous if the
court is to exercise its power of transfer. This
is the cardinal principle although the
circumstances may be myriad and vary from
case to case. This Court, in the facts and
circumstances of the case, said that the
grounds for the transfer have to be tested on
this touchstone bearing in mind the rule that
normally the complainant has the right to
choose any court having jurisdiction and the
accused cannot dictate where the case
against him should be tried. It further said
that even so, the process of justice should not
harass the parties and from that angle the
court may weigh the circumstances.

7. In Abdul Nazar Madani v. State
of T.N. [(2000) 6 SCC 204 : 2000 SCC (Cri)
1844 INDIAN LAW REPORTS ALLAHABAD SERIES
1048 : AIR 2000 SC 2293] this Court stated
that the purpose of the criminal trial is to
dispense
fair
and
impartial
justice
uninfluenced by extraneous considerations.
When it is shown that public confidence in the
fairness of a trial would be seriously
undermined, any party can seek the transfer of
a case within the State under Section 407 and
anywhere in the country under Section 406 of
the Code. The apprehension of not getting a
fair and impartial inquiry or trial is required
to be reasonable and not imaginary based
upon conjectures and surmises. If it appears
that the dispensation of criminal justice is not
possible impartially and objectively and
without any bias, before any court or even at
any place, the appropriate court may transfer
the case to another court where it feels that
holding of fair and proper trial is conducive.
No universal or hard-and-fast rules can be
prescribed for deciding a transfer petition
which has always to be decided on the basis of
the facts of each case. Convenience of the
parties including the witnesses to be produced
at the trial is also a relevant consideration for
deciding
the
transfer
petition.
The
convenience
of
the
parties
does
not
necessarily mean the convenience of the
petitioners alone who approached the court on
misconceived
notions
of
apprehension.
Convenience for the purposes of transfer
means the convenience of the prosecution,
other accused, if any, the witnesses and the
larger interest of the society."

8. It is further observed here that from
the available material, this Court cannot
reasonably conclude that the situation in
Sitapur is not conducive for a fair conclusion
of case for the applicant. The few instances
mentioned by the applicant's counsel may
suggest heightened feelings amongst the
contesting parties but they do not in my
estimation, call for transfer of proceedings to
another District. Moreover, it cannot just be
the convenience of the applicant but the
private opposite party, the witnesses and the
prosecution. The larger issue of cases
normally being conducted by the jurisdictional
court must also weigh on the issue. When
relative convenience and difficulties of all the
parties involved in the process are taken into
account, the conclusion is inevitable that no
credible case for transfer of trial to alternative
venues outside the District is made out, in the
present matter.

9.

Thus,
in
view
of
the
observations/discussions and judgment of the
Hon'ble Supreme Court, this Court finds that
there is no good ground for transfer of the
case from one District Court to the another.
It is just a ploy adopted by the applicant to
delay the proceedings of the aforesaid case
as she is having an apprehension that the
opposite party no.1 may harm her, which is
not a ground to transfer the case from one
District to another, if she is aggrieved, she
may
approach
competent
forum
for
redressal of her grievances. Thus, no
interference is required by this Court to
entertain the instant application moved
under Section 407 Cr.P.C. and the same is
liable to be rejected.

10. The present application is,
accordingly, rejected.
----------
(2024) 5 ILRA 1844
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Transfer Application (Criminal) No. 93 of 2023

Jay Singh & Ors. ...Applicants
Versus
State of U.P & Ors. ...Opposite Parties