HARITA SUNIL PARABversusSTATE OF NCT OF DELHI AND OTHERS

732                      [2018]REPORTS
               SUPREME COURT   3 S.C.R. 732                 [2018] 3 S.C.R.


A                           HARITA SUNIL PARAB
                                         v.
                  STATE OF NCT OF DELHI AND OTHERS
                 (Transfer Petition (Crl.) Nos. 254-255 of 2017)
B                               MARCH 28, 2018
            [ADARSH KUMAR GOEL, R. F. NARIMAN AND
                      NAVIN SINHA, JJ.]

             Transfer Petitions – Petitioner, a resident of Mumbai and a
C     practicing Advocate before Mumbai High Court, seeks transfer of
      two FIRs registered by her against respondents nos. 2 to 4 in Delhi
      and Ghaziabad to Mumbai – Plea of petitioner that she fears that
      investigation may not be done fairly as she has been receiving threats
      from accused persons – Held: Investigation is complete in both the
D     FIRs which are the subject matter of transfer – Charge sheet in one
      of the FIR reveals that of the 40 witnesses, petitioner alone is from
      Mumbai, two are from Ghaziabad and one is from NOIDA – Charge
      sheet of the other FIR is not on record but a presumption can be
      drawn that the position would be similar in that case also –
      Apprehension of not getting a fair and impartial enquiry or trial
E     has to be reasonable and not imaginary, based upon conjectures
      and surmises – If the petitioner has any grievance with regard to
      the investigation, the remedy lies in filing an appropriate application
      under Cr.P.C, before the court concerned – At this stage, the
      apprehensions voiced by petitioner of possible harm to her at Delhi
      is too nebulous a ground for transfer – As far as inconvenience is
F
      concerned, it is her own pleadings, that she has been travelling
      from Mumbai to Delhi since long for professional reasons – Cases
      in question are not required to be transferred to Mumbai – Penal
      Code, 1860 – ss. 323, 354, 354A, 376, 379, 420, 506 and 509 –
      Code of Criminal Procedure, 1973 – Railways Act – ss.145(B), 146,
G     137.

           Transfer     Petitions    –   Relevant     considerations     for
      – Discussed.


H
                                      732
       HARITA SUNIL PARAB v. STATE OF NCT OF DELHI                      733
                      AND OTHERS

       Rejecting the transfer petitions, the Court                      A
       HELD: TRANSFER PETITION (CRL.) Nos. 254-255 OF
2017
       1.1 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 before          B
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       C
court in accordance with law. 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.
[Paras 4, 5] [736-B-D]                                                  D

      1.2 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 a transfer petition, which
will always have to be decided on the facts of each case.               E
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         F
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 one of the FIR reveals that of      G
the 40 witnesses, the petitioner alone is from Mumbai, two are
from Ghaziabad, and one is from NOIDA. The charge sheet is of
the other FIR is not on record. A reasonable presumption can be
drawn that the position would be similar in the same also. Early
                                                                        H
734           SUPREME COURT REPORTS                     [2018] 3 S.C.R.


A     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. 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
B
      pleadings, the petitioner has been travelling from Mumbai to
      Delhi since long for professional reasons. The two cases are not
      required to be transferred to the court of competent jurisdiction
      at Mumbai. [Paras 8-11] [737-A-F; 738-B]
           TRANSFER PETITION (CRL.) No. 253 of 2017
C
             1.3 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. In
      view of the discussion hereinbefore, the present Transfer Petition
D     is also rejected. [Paras 12, 13] [738-C-D]
           Gurcharan Das Chadha v. State of Rajasthan
           [1966] 2 SCR 678 ; Mrudul M. Damle & Anr. v.
           Central Bureau of Investigation, New Delhi (2012) 5
           SCC 706 : [2012] 5 SCR 919 ; Parminder Kaur v.
E          State of U.P. (2007) 15 SCC 307 : [2007] 3 SCR 1021
           – relied on.
                             Case Law Reference
           [1966] 2 SCR 678            relied on           Para 7
F          [2012] 5 SCR 919            relied on           Para 9
           [2007] 3 SCR 1021           relied on          Para 10


            CRIMINAL ORIGINAL JURISDICTION : Transfer Petition
G     (Criminal) Nos. 254-255 of 2017.
           Under Section 406 of the Criminal Procedure Code, 1973
                                     WITH
           Transfer Petition (Crl.) No. 253 of 2017.
H
      HARITA SUNIL PARAB v. STATE OF NCT OF DELHI                             735
                     AND OTHERS

      Ms. Harita Sunil Parab (Petitioner-in-Person).                          A
       Rana Mukherjee, Sr. Adv, Ms. Ranjan Narayan, T. A. Khan,
B. V. Balaram Das, Sanjay Kumar Tyagi, Ms. Priyanka, V. Nath Mishra,
Anantha Narayana M.G., Advs for the Respondents.
      R. D. Upadhyay (Respondent No.2 -in-Person).
                                                                              B
      The Judgment of the Court was delivered by
      NAVIN SINHA, J.
      TRANSFER PETITION (CRL.) NOs.254-255 OF 2017
       1. The present application seeks transfer of F.I.R. No.351 of 2016
                                                                              C
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, 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.                   D
       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                  E
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
                                                                              F
investigation in the FIRs is thus sought to the transferred to the court of
competent jurisdiction at Mumbai.
       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           G
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.                         H
736             SUPREME COURT REPORTS                            [2018] 3 S.C.R.


A            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 before the court of
B
      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.
C            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.
D            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.
           7. In Gurcharan Das Chadha vs. State of Rajasthan, (1966) 2
E     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
F            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
G            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
H            to the Court to be a reasonable apprehension.”
      HARITA SUNIL PARAB v. STATE OF NCT OF DELHI                                  737
             AND OTHERS [NAVIN SINHA, J.]

         8. The apprehension of not getting a fair and impartial enquiry or        A
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 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
                                                                                   B
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                 C
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
                                                                                   D
presumption can be drawn that the position would be similar in the same
also.
        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           E
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            F
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                 G
       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 by the State Exchequer in making payment of travelling          H
738            SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A           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
B     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
C     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
D     Railway Police at Ratlam with regard to the same occurrence.
             13. In view of the discussion hereinbefore, the present Transfer
      Petition is also rejected.


      Divya Pandey                                        Transfer Petitions rejected.
E




F




G




H