JYOTI MISHRA v.

DHANANJAYA MISHRA (Transfer Petition (Criminal) Nos. 94-95 of 2010)

AUGUST 27, 2010

[Aftab Alam and R.M. Lodha, JJ.] 2010(10) SCR 229

The following order of the Court was delivered

O R D E R

1. We have heard counsel for the petitioner.

2. No one appears for the 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  report  before the Station  

House Officer, P.S. Alwal, Secunderabad, that led to the institution of FIR  

No. 470/2009 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 investigation, submitted charge sheet  

and the proceedings against the accused are now pending before the VIth  

Metropolitan Magistrate, Cyberabad in CC No. 804/2009.

4. In the meanwhile, the petitioner left her husband at Hyderabad and came  

to live with her parents at Indore. She has filed this petition for transferring  

the  criminal  case  pending  before  the  VIth  Metropolitan  Magistrate,  

Cyberabad to a court of competent jurisdiction at Indore, Madhya Pradesh.

5. The first thing that needs to be noticed is that in the Transfer Petitions  

only the husband Dhananjaya Mishra is impleaded as respondent. The other  

accused  in  the  criminal  case  are  not  made  parties  to  these  Transfer  

Petitions.  The Transfer  Petitions are, therefore, liable 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 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, this  

Court shows much indulgence to the wife and ordinarily transfers the case to  

a place where it  would be more convenient 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 Indore for many reasons, one  

of  which  may  be  financial  constraints,  but  the  consequences  of  non-

appearance of the accused before the Indore Court would be quite drastic.  

Having regard to the consequences of non-appearance of the accused in a  

criminal trial, we are loath to entertain the petitioner’s prayer for transfer. In a  

criminal  proceeding,  the right  of  the accused to  a  fair  trial  and a proper  

opportunity to defend himself cannot be ignored for the convenience of the  

complainant simply because she happens to be the estranged wife.

8. For all these reasons, we are not inclined to accept the prayer for transfer  

in these cases.

9. The Transfer Petitions are dismissed.