1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4262 OF 2009 1. Dr.Nirmal S/o.Vivek Raut, Age-31 years, Occu-Medical Practitioner, 2. Smt.Subhadra W/o.Vivek Raut, Age-60 years, Occu-Household work, 3. Sharad S/o.Vivek Raut, Age-33 years, Occu-Unemployed, 4. Smita W/o.Sharad Raut, Age-30 years, Occu-Household, All R/o.904, 9th floor, Sun Tower Bldg, Bhoiwada, G.D.Ambedkar Marg, Parel (West) Mumbai-11 5. Sharad S/o.Hemant Kathane, Age-44 years, Occu-Private Service, R/o.401, Lilac, Kesar Garden, Sector 20, Kharghar, New Mumbai. 6. Dr.Varsha W/o.Anil Meshram, Age-36 years, Occu-Medical Practitioner, 7. Dr.Anil S/o.Indradas Meshram, Age-40 years, Occu-Medical Practitioner, Both petitioner no.6 & 7 R/o.1, Bldg.No.43, Shantinath Tower, Shanti Park, Meera Road, Thane, Dist. Thane 8. Dr.Tanuja W/o.Sharad Kathane, Age-40 years, Occu-Medical Practitioner and household, R/o.Jari Patka, Near Durge 2 Corporator Chakki, Nagpur, Dist. Nagpur APPLICANTS VERSUS 1. The State of Maharashtra, Through Principal Secretary, Home Department, State of Maharashtra, Mantralaya, Mumbai-32 2. Dr.Sucheta Nirmal Raut, Age-26 years, Occu-Research Co-ordinate, C/o.Dr.Kumar Prabash, Tata Memorial Hospital, Parel, Mumbai 400012 and also C/o.Bhagwan Manga More, Prerana, House No.120, Sindhi Colony, Near Hanuman Temple, Chalisgaon, Dist. Jalgaon RESPONDENTS WITH CRIMINAL APPLICATION NO.4263 OF 2009 1. Dr.Nirmal S/o.Vivek Raut, Age-31 years, Occu-Medical Practitioner, 2. Smt.Subhadra W/o.Vivek Raut, Age-60 years, Occu-Household work, 3. Sharad S/o.Vivek Raut, Age-33 years, Occu-Unemployed, 4. Smita W/o.Sharad Raut, Age-30 years, Occu-Household, All R/o.904, 9th floor, Sun Tower Bldg, Bhoiwada, G.D.Ambedkar Marg, 3 Parel (West) Mumbai-11 5. Sharad S/o.Hemant Kathane, Age-44 years, Occu-Private Service, R/o.401, Lilac, Kesar Garden, Sector 20, Kharghar, New Mumbai. 6. Dr.Varsha W/o.Anil Meshram, Age-36 years, Occu-Medical Practitioner, 7. Dr.Anil S/o.Indradas Meshram, Age-40 years, Occu-Medical Practitioner, Both petitioner no.6 & 7 R/o.1, Bldg.No.43, Shantinath Tower, Shanti Park, Meera Road, Thane, Dist. Thane 8. Dr.Tanuja W/o.Sharad Kathane, Age-40 years, Occu-Medical Practitioner and household, R/o.Jari Patka, Near Durge Corporator Chakki, Nagpur, Dist. Nagpur APPLICANTS VERSUS 1. The State of Maharashtra, Through Principal Secretary, Home Department, State of Maharashtra, Mantralaya, Mumbai-32 2. Dr.Sucheta Nirmal Raut, Age-26 years, Occu-Research Co-ordinate, C/o.Dr.Kumar Prabash, Tata Memorial Hospital, Parel, Mumbai 400012 and also C/o.Bhagwan Manga More, Prerana, House No.120, Sindhi Colony, 4 Near Hanuman Temple, Chalisgaon, Dist. Jalgaon RESPONDENTS Mr.P.R.Patil, learned counsel for applicants in both applications. Mr.N.R.Shaikh, learned APP for respondent no.1 in both applications. Mr.D.B.Thoke, learned counsel for respondent no.2 in both applications. (CORAM : A.V.POTDAR, J.) DATE : 15/02/2010 COMMON ORAL JUDGMENT : 1. Criminal Application No.4262/2009 is filed by the applicants for transfer of RCC No.282/2009, pending on the file of J.M.F.C. Chalisgaon to the Court of Learned Metropolitan Magistrate Bombay, which was filed by the 2nd respondent against applicants u/s.498A, 323, 504 r/w. 34 of IPC. 2. Criminal Application No.4263/2009 is filed by the applicants for transfer of Misc.Application No.264/2009, pending on the file of J.M.F.C. Chalisgaon to the Court of Learned Metropolitan Magistrate Mumbai, which was filed by the 2nd respondent against applicants under the provisions of Protection of Women from Domestic Violence Act, 2005. 3. After notice, 2nd respondent appeared through counsel and filed her reply. 5 4. Considering the small point involved in both these applications, and by consent of the parties, both the applications are disposed of by way of common judgment. 5. Rule. 6. Rule made returnable forthwith. By consent of the parties, both the applications heard finally at the stage of admission. 7. Factual matrix which gave rise to file the present applicationS can be summarized as under : The first applicant in both the applications is husband of 2nd respondent. Their marriage took place at Chalisgaon on 09/11/2008. After marriage, 2nd respondent shifted to Mumbai at the residence of 1st applicant. The remaining applicants are close relatives of applicant no.1 and their relationship is also not under dispute. Because of alleged harassment at the hands of applicants, 2nd respondent left her matrimonial home and came to her parental house at Chalisgaon, where she lodged two different complaints. 8. In that offence, the applicants were released on bail. At the time of submissions across the bar, learned counsel appearing for the applicants in both these applications, informed that the 1st applicant has filed divorce petition against 2nd respondent in the Family Court at Bandra, of which summons is served on 2nd respondent. This position is also not disputed by the counsel for 2nd 6 respondent. 9. Before hearing the final submissions across the bar, an opportunity was given to the counsels appearing for their respective parties that considering the educational qualification and status of the parties, if the dispute arises between them because of some mis- understanding, whether there are any chances of amicable settlement between them. At this juncture, learned counsel for 2nd respondent, on instructions of brother of 2nd respondent, who is present in the Court, shown his willingness to participate in the meeting for settlement, but the 1st applicant, who is also present in the Court, is insisting that such a meeting can be held only at Bombay and not at any other place. What it may be so, the Court can not compel the parties if they are not at their own thinking for their own future. 10. During the course of submissions across the bar, parties have restricted their submissions in respect of convenience of parties. Whether the dispute can be resolved and so far as the allegations and counter allegations, both the counsels restricted themselves not to address the Court on that aspect. In that premise, the requisite position u/s. 26 and 27 of The Protection of Women from Domestic Violence Act, 2005 and section 407 of The Cr.P.C. require to be considered. 11. For clarity, section 27 of The Protection of Women from Domestic Violence Act, 2005 is reproduced : 7 Section 27 : Jurisdiction : (1) The Court of Judicial Magistrate of First Class or the Metropolitan Magistrate, as the case may be, within the local limits of which - (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent Court to grant a protection order and other orders under this Act and to try offences under this Act. (2) Any order made under this Act shall be enforceable throughout India. 12. At the same time, the provisions about transfer of cases from one court to other are dealt u/s. 407 of The Cr.P.C. of which provisions under S/S 1(c) is material for consideration of this application which read as follows : Section 407 S/S.1(c) of The Cr.P.C. : (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order ; (i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. 8 13. It is not disputed by the parties to this application about the correctness of the addresses which they have given in the application, as they agreed that the parties are residing at the respective addresses as given in the title of both these applications. It is brought to the notice of this Court that applicant no.1 in both the applications is residing and serving in Bombay as well as applicant no.2,3 and 4 are residing at Parel, Bombay, who are the elder members in the family of first applicant. Applicant no.5 is residing at Kharghar, New Bombay and suffering from serious ailment. Applicant no.6 and 7 are R/o. Meera Road, Dist.l Thane, while applicant no.8 is the medical practitioner, practicing at Nagpur. 2nd respondent, at the time of filing both the complaints, was residing at Bombay and still is residing in Bombay as she is doing the research work in Tata Memorial Cancer Hospital, Parel, Bombay. Earlier the assignment was of 6 months during the period from May 2009 to November 2009, but now extension of 6 months is given till May 2010. By drawing my attention towards these undisputed facts, it is urged that as the 2nd respondent and applicant no.1 to 7 are residing at Bombay, for just convenience of the parties to the litigation, both the criminal complaints filed by 2nd respondent to be transferred to the Court of Metropolitan Magistrate concerned, in this case at Bhoiwada, Dadar as provided u/s. 407(1)(c) of The Cr.P.C., as well as u/s. 27(a)(b) of The Protection of Women from Domestic Violence Act, 2005. 14. According to counsel appearing for 2nd respondent, the 9 assignment of 2nd respondent in Bombay, where she has acquired rented accommodation as stated in her application, that assignment is not of permanent nature but will be over till May 2010, and thereafter she has to return back to her parental house at Chalisgaon. 15. Reliance is placed by the counsel for applicants on the rulling reported in 2004 Cri.L.J. 2555, in the matter of Eluri Raji Reddy and others versus State of Delhi and another, about the observations of Apex Court on transfer of cases wherein it is observed in para no.7 as below : Having heard learned counsel for the parties, but without expressing any opinion on the allegations and counter allegations made against one another, which are subjudice in the main proceedings, we are of the opinion that it will be for better convenience of the parties and in the interest of justice if both the cases pending in the Court of Metropolitan Magistrate, New Delhi titled State of Delhi versus Eluri Raji Reddy and others arising in FIR No.385 of 2000. Parliament Street Police Station and petition under S. 125 Cr.P.C. for grant of maintenance filed by the wife- respondent pending in the Court of Metropolitan Magistrate, Patiala House, New Delhi titled Eluri Manemma Versus Eluri Raji Reddy in C.C.No.75 of 2000 are transferred to a Court of competent jurisdiction at Hazurabad, Karimnagar District, Andhra Pradesh. Accordingly, the transfer petitions filed by the husband are allowed. Since we are transferring both the cases filed by the wife, pending at New Delhi, to a Court of competent jurisdiction at Hazurabad, Karimnagar Dist. Andhra Pradesh, Transfer Petition (Civil) No.342 of 2003 filed by her is dismissed. It 10 is directed that both the above mentioned cases pending in the Court of Metropolitan Magistrate, New Delhi shall stand transferred to the Court of District and Sessions Judge, Karimnagar District, Andhra Pradesh. The facts of the present applications are identical with the facts of rulling cited. 16. It is to be considered that learned counsel for respondent no.2 want to rely upon section 178(b)(c) of The Cr.P.C, where the jurisdiction of criminal court is defined, in which the cases to be tried. Very true, that aspect is also considered by the Apex Court bearing in mind the larger interest of the parties. Even though, it is accepted that the job assigned to the 2nd respondent is of temporary nature about the completion of research work in Tata Memorial Hospital, the experience says that the job of research can not be over till the month of May 2010, within a short span of 6 months or year, but it require more than that. Already as per para no.11 of the complaint under The Protection of Women from Domestic Violence Act, 2005, the 2nd respondent had occupied a rented premises in Bombay. Bearing in mind this aspect and all the applicants except applicant no.8 are residing at Mumbai, in the interest of all, it is proper and just to transfer the cases pending on the file of J.M.F.C. Chalisgaon to the Court of Metropolitan Magistrate at Bombay. 17. In the premise, both the applications succeed. Rule made absolute in terms of prayer clause “B” of the applications. Both the applications stand disposed of accordingly. 11 18. Office Superintendent of the Court of J.M.F.Chalisgaon to take the note of this order and transfer the files bearing Cri.Misc.Appl.No. 264/2009 and RCC No.282/2009 to the Court of Chief Metropolitan Magistrate at Bombay who will issue notice of appearance on the parties concerned and will transfer the case to the appropriate Court after consulting with the parties. 19. Both the applications stand disposed of accordingly. (A.V.POTDAR, J.) khs/FEB 2010/cri.appl.4262-09