Nafr High Court
Case Details
1 2025:CGHC:13860 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR TPCR No. 2 of 2025 Govind Pardhan S/o Ganesh Ram Pradhan Aged About 46 Years R/o House No. 719, Near Chandmari School, Ward No. 9, Chandmari Raigarh Tahsil And District Raigarh Chhattisgarh. versus --- Petitioner(s) 1. 2. Seema Pardhan W/o Govind Pardhan Aged About 43 Years R/o House No. 719, Near Chandmari School, Ward No. 9, Chandmari Raigarh, Tahsil and District Dhamtari Chhattisgarh. State Of Chhattisgarh Through The Station House OfÏcer, Police Station Chakradhar Nagar, District Raigarh Chhattisgarh. --- Respondent(s) TPCR No. 3 of 2025 Govind Pardhan S/o Ganesh Ram Pardhan Aged About 46 Years R/o House No. 719, Near Chandmari School Ward No. 9 Chandmari Raigarh Tahsil And District - Raigarh (C.G.) Versus ---Petitioner(s) 1. 2. Seema Pardhan W/o Govind Pardhan Aged About 43 Years R/o House No. 719, Near Chandmari School Ward No. 9 Chandmari Raigarh Tahsil And District - Raigarh (C.G.) State of Chhattisgarh Through The Station House OfÏcer Police Station City Kotwali District - Raigarh (C.G.) --- Respondent(s) TPCR No. 1 of 2025 Govind Pardhan Son Of Ganesh Ram Pardhan Aged About 46 Years Resident Of House No. 719, Near Chandmari School, Ward No.9, Chandmari, Raigarh, Tahsil And District Raigarh (C.G.) Versus ---Petitioner(s) PREETI KUMARI Digitally signed by PREETI KUMARI 1. 2. Seema Pardhan Wife of Govind Pardhan Aged About 43 Years Resident Of House No. 719, Near Chandmari School, Ward No.9, Chandmari Raigarh, Tahsil And District Raigarh (C.G.) State Of Chhattisgarh Through The Station House OfÏcer, Police Station Chakardhar Nagar, District Raigarh (C.G.) --- Respondents 2 For Petitioner(s)
Legal Reasoning
: Mr. Jitendra Shukla, Advocate. For Respondent No. 1 : Mr. Prashant Dansena, Advocate. For Respondent No. 2/State : Mr. U.K.S. Chandel, Deputy Advocate General. Hon'ble Shri Ramesh Sinha Order on Board , Chief Justice 22.03.2025 1. Heard Mr. Jitendra Shukla, learned counsel for the petitioner and Mr. Prashant Dansena, learned counsel for the respondent No. 1 and Mr. U.K.S. Chandel, learned Deputy Advocate General, appearing for the respondent No. 2/State. 2. The transfer petition No. 2/2025 has been filed by the petitioner with the following prayers: “It is therefore prayed that this Hon’ble Court may kindly be pleased to transfer the case bearing Criminal Case No. 1414/2025 pending before the Court of learned Judicial Magistrate First Class, Raigarh, District – Raigarh (C.G.) to the Court of Judicial Magistrate First Class, Sakti, District- Sakti (C.G.) or as an alternative this Hon’ble Court may kindly be pleased to direct the Bar Council Raigarh to allow the petitioner and grant liberty to appoint any of counsel of his choice to appear and argue on behalf of petitioner, in the interest of justice.” 3. So far as it relates to TPCR No. 1/2025 has been filed by the petitioner with the following prayers:- “It is therefore prayed that this Hon’ble Court may kindly be pleased to transfer the case bearing MJC Criminal Case No. 39/2022 pending before the Court of learned 3 Judicial Magistrate First Class, Raigarh, District – Raigarh (C.G.) to the Court of Judicial Magistrate First Class, Sakti, District- Sakti (C.G.) or as an alternative this Hon’ble Court may kindly be pleased to direct the Bar Council Raigarh to allow the petitioner and grant liberty to appoint any of counsel of his choice to appear and argue on behalf of petitioner, in the interest of justice.” 4. So far as it relates to TPCR No. 3/2025 has been filed by the petitioner with the following prayers:- “It is therefore prayed that this Hon’ble Court may kindly be pleased to transfer the case bearing Criminal Case No. 1572/2021 pending before the Court of learned Judicial Magistrate First Class, Raigarh, District – Raigarh (C.G.) to the Court of Judicial Magistrate First Class, Sakti, District- Sakti (C.G.) or as an alternative this Hon’ble Court may kindly be pleased to direct the Bar Council Raigarh to allow the petitioner and grant liberty to appoint any of counsel of his choice to appear and argue on behalf of petitioner, in the interest of justice.” 5. Learned counsel for the petitioner submits that there was some dispute of petitioner with the Advocate of his wife, hence resolution has been passed by the Bar Association of District Court, Raigarh that no advocate would pursue the case on behalf of the petitioner in District – Raigarh, the said fact has been mentioned in paragraph 4 of the transfer petition. He also submits that the petitioner had also requested the Bar Association of Raigarh to supply a copy of resolution, but the same has not been given, the said fact is mentioned is 4 paragraph 5 of the transfer petition. Therefore, the present case be transferred from the Court of Judicial Magistrate First Class, Raigarh to the Corut of Judicial Magistrate First Class, Sakti. 6. Learned counsel for the respondent No. 1 submits that the petitioner is appearing through an Advocate which is already been appointed by the Legal Aid in all the cases and the Advocate is not available for the petitioner because of some dispute between the petitioner and Advocate of his wife, on which basis he wants to transfer the said criminal cases, despite knowing the fact that the private respondent is a lady and she is also having two children, and if the said criminal cases would be transferred, she may have some difÏculty to contest the said matters. 7. I have heard learned counsel for the parties and perused the pleadings and prayers made in the transfer petition. 8. The Supreme Court in the matter of Ashish Chadha v. Asha Kumari and another1 has held that transfers ordered merely on the say- so of a party have a demoralising effect on the trial courts and further held that that unless a very strong case based on concrete material is made out, such transfers should not be ordered. 9. The Supreme Court in the matter of Gurcharan Dass Chadha v. State of Rajasthan2 held that transfer should not be made merely on the basis of apprehension but there must be a reasonable apprehension. It was observed as under:- “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 1 2 (2012) 1 SCC 680 AIR 1966 SC 1418 5 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.” 10. Similarly, in the matter of Abdul Nazar Madani v. State of T.N. and another3 the Supreme Court has held that the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary and observed as under:- “7.......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, the witnesses and the larger interest of the society.” 11. In the matter of Capt. Amarinder Singh v. Prakash Singh Badal and others4 while dealing with an application for transfer under Section 3 4 (2000) 6 SCC 204 (2009) 6 SCC 260 6 406 CrPC, their Lordships of the Supreme Court have opined that for transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done and it cannot be directed only on apprehension. It was observed as under:- “19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. 20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one.” 12. Finally, the Supreme Court in the matter of Usmangani Adambhai Vahora v. State of Gujarat and another5 has held that seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice. 13. Reverting to the facts of the present case in the light of principle of law laid down by the Supreme Court in the above-stated judgments (supra) qua transfer of criminal cases from one court to another, it is quite 5 (2016) 3 SCC 370 7 vivid that merely on the basis of the unavailability of the advocates on account of some dispute arose between the advocates and the petitioner, transfer cannot be directed unless apprehension is reasonable apprehension and such a power has to be exercised cautiously and in exceptional situations where it becomes necessary in the ends of justice and where there is likely to failure of justice. In the instant case, no apprehension much less the reasonable apprehension has been expressed or pleaded in the transfer petition, which is sine qua non for granting an application for transfer under Section 447 of the BNSS, as such, I do not find any good ground for transfer of Criminal Case Nos. 1414/2024 and 39/2022 pending before learned Judicial Magistrate First Class, Raigarh, District – Raigarh (C.G) to the Court of learned Judicial Magistrate First Class, Sakti, District – Sakti (C.G.) and transfer of Criminal Case No. 1572/2021 pending before the learned Judicial Magistrate First Class, Sakti, District – Sakti (C.G) to the Court of the Chief Judicial Magistrate, Sakti, District – Sakti (C.G.) 14. Accordingly, the transfer petitions deserve to be and are hereby dismissed. Preeti Sd/- Sd/- (Ramesh Sinha) Chief Justice