Holding

The transfer petitions were dismissed; the criminal case cannot be transferred solely for the complainant’s convenience and must include all accused.

Summary

Jyoti Mishra, the estranged wife of Dhananjaya Mishra, filed an FIR under Section 498-A of the IPC against her husband and five others in Hyderabad. The case was pending before the 5th Metropolitan Magistrate, Cyberabad. After moving to Indore, she filed transfer petitions (Criminal Nos. 94‑95 of 2010) seeking to shift the criminal proceedings to a court in Indore for her convenience. The petitions named only her husband as the respondent, omitting the other accused. The Supreme Court held that a transfer petition that does not include all accused is untenable and that a criminal case cannot be transferred merely for the complainant’s convenience, as it would jeopardise the accused’s right to a fair trial. Consequently, the transfer petitions were dismissed.

Issues considered

Whether a criminal case may be transferred from one State to another solely for the convenience of the complainant (estranged wife).
Whether a transfer petition that does not implead all accused can be entertained.

Legislation cited

Code of Criminal Procedure, 1973s. 406
Indian Penal Code, 1860s. 498-A

Subjects

transfer of criminal casejurisdictionright to fair trialaccused's rightsconvenience of complainantSection 498-ACriminal Procedure Codeestranged wifejurisdictional transfer

Judgment

[2010) 10 S.C.R. 229

JYOTI MISHRA A
V.
DHANANJAYA MISHRA
(Transfer Petition (Criminal) Nos. 94-95 of 2010)
AUGUST 27, 2010
B
[AFTAB ALAM AND R.M. LODHA, JJ.]

Code of Criminal Procedure, 1973:

Transfer petition - ·Estranged wife seeking transfer' of · C
criminal case filed by her against her husband and his
relatives - HELD: Transfer petition is liable· to be dismissed
on the ground that only the husband is impleaded as
respondent and the other accused in the criminal case have
not been made parties in. the petition. D

Transfer petition - Seeking transfer of criminal case filed
by petitioner-complainant against her husband and his
relatives - HELD: In criminal proceedings, the right of
. accused to a fair trial and a proper opportunity to defend
himself cannot be ignored for the convenience of the E
oomplainant simply because she happens to be the estranged
wife -Court is not inclined to transfer a criminal case from one
State to another_solely on the ground that it would be more
convenient for the complainant (wife) to prosecute the matter
there - It is true__that in cases of dissolution of marriage, F
restitution of conjugal rights or maintenance, much indulgence
is shown to the wife and, ordinarily, the case is transferred to
a place where it would be more convenient for the wife to
pLosecute the proceedings - But, a ·criminal case is on a
somewhat different footing - Accused may not be able to G
attend the proceedings before the court suggested by
complainant for many reasons, one of which may be financial
constraints, but the consequences of non-appearance of the

229 H
230 SUPREME COURT REPORTS [2010] 10 S.C.R.

A accused before such court would be quite drastic - Having
regard to the consequences of non-appearance of the
accused in a criminal trial, the Court is loath to entertain the
prayer for transfer. · · · ·

Transfer Petition:
~

Transfer of a criminal case or a matrimonial dispute -
FactorS,' to be considered - Explained - Code of Criminal
Procedure, 1973 - Practice and Procedure.

c CRIMINAL ORIGINAL JURISDICTION : Transfer Petition
(Crl.) Nos. 94-95 of 2010.

Anjani Kr. Mishra, Rajeev Kumar Bansal, Akshay K. Ghai,
Sanjeev Bansal for the Petitioner.

D The following order of the Court was delivered

ORDER

1. We have heard counsel for the petitioner.

E 2. No. one _appears forthe respondent despite service of
notice.

-3. The petitioner is the estranged wife of the respondent.
While still living with him at Hyderabad, she had filed a written
F report before the· Station House Officer, P.S. Alwal,
Secunderabad, that led to the institution of FIR No. 47012009
dated September 09, 2009 under Section 498-A of the Penal
Code citing her husband Dhananjaya Mishra (the sole
respondent) and five others as accused. The Police, after
G investigation,· submitted charge s.heet and the proceedings
against the accused are now pending before the Vlth
Metropolitan Magistrate, Cyberabad in CC No. 804/20,09.
4. In the meanwhile, the petitioner left her husband at
Hyderabad and came to live with her parents at Indore. She
H has filed this petition for transferring the criminal case pending
JYOTI MISHRA v. DHANANJAYA MISHRA 231

before the Vlth Metropolitan Magistrate, Cyberabad to a court A
of competent jurisdiction at Indore, Maahya Pradesh.

5. The first. thing that needs to be noticed is that in the .
Transfer Petitions only the hu-sbaod Dhananjaya Mishra is
impleaded as~ respondent. ·The oth~r"accused ·in the criminll"
8
case are not made parties to these Transfer Petitions. The
Transfer Petitions are, therefore, liaple to be dismissed on that
score alone. '
6. Otherwise also, we are not inclined to transfer 'a criminal
·case from one State to another solely on the ground 'that it C
would be more convenient for the complainant (wife) to
.prosecute the matter there. It is true that in cases of dissolution
of marriage, restitution of conjugal rights or maintenance, tnis
Court shows much indulgence to the wife and ordinarily
transfers the case to a place where it would be more convenient D
for the wife to prosecute the proceedings.
. .
7. But a criminal case is on a somewhat different footing.
The accused may not be able to attend the court proceedings·
at lndo~e for many reasons, -9n~ 9f ~~!f~ may be 'financial.~ E'
constraints, but the consequences of nor.-appearance .of the·
accused before the Indore Court would be quite drastic. Having
regard to the consequences of r:ion-appearance,of.th~.acqu~ed .
in a criminal trial,
~ ~ - -
~
we are
.~
loath
.... •
to entertain
-
the petitioner's
- '• ..., -,.. r -
-~
-prayer
-· ,,. ,. v. .. . ,,
~ ~.....

for transfer, In a criminal proceeding, tne right of the accused
to a fair trial and a proper opportunity tci defen'd himself car1not F
be ignored for the convenience of the complainant simply'
because she Jiappens.to,be the estranged wife. . .

8. For all, these reasons, we are not inclined to acceRt the
prayer for transter in these_ca~es. · 1• · ., '. . '.. - · .'. - '," ~ G 1
.-9: The Tran.sfer
..- ..... ~
Petitions are dismissed.-· . . '· ·~ -
,.. -.. -- .... -:: -- .., . ...
,.... .
' ",...., .
~ ~ '

R.D: · -.- -- - Transfer. Petitions •dismissed:
''