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Judgment
Initially, on 21.12.2016, notices were issued to the non
applicant nos. 1 to 8 and ad interim stay was granted in favour of the
applicants. On 04.05.2017, it was noticed that non applicant no.2-
Parshuram was reported to be dead however non applicant nos. 1, 3
to 8, in spite of service failed to appear and therefor in order to give
one chance to them, the matter was adjourned. Order dated
05.07.2017 shows that the Legal Aid Committee instructed the
present counsel about death of non applicant no.3 also. Therefore,
vide order dated 24.07.2017, the application filed on behalf of the
applicants for deleting name of non applicant nos.2 and 3 was
allowed and their names were struck off from the cause title.
In spite of service, the remaining non applicants were not
putting in their appearance before this Court to contest the matter.
Therefore, on 24.08.2017, fresh notices were issued for final disposal
of the matter.
In spite of service and in spite of opportunity being given
to the non applicants to defend themselves in the present proceeding,
they chose not to appear before this Court.
Heard Ms M. S. Hiwase, Advocate appointed for the
applicants from the Legal Aid Committee. Rule. Rule is made
returnable forthwith.
The present application under Section 407 of the Code of
Criminal Procedure is for transferring the Miscellaneous Criminal
Case No. 446/2009 pending on the file of Judicial Magistrate First
Class, Chandrapur to the file of Judicial Magistrate First Class, Pune.
The applicants are wife and sons of the non applicant
no.1. The applicants, filed an application in the Court of Judicial
Magistrate First Class, Chandrapur under Section 12 read with
Section 18, 19, 20 and 22 of the Protection of Women from Domestic
Violence Act, 2005 and claimed various reliefs. The said application
was registered as Misc. Criminal Application No.446/2009. For
deciding the present application, the Court will not make any
comment in respect of the merits or demerits of the statements of
facts made in the said proceedings by the applicant.
Be that as it may. In the application under Section 407 of
the Code of Criminal Procedure, it is stated that after they were
deserted by the non non applicants, the applicants are taking shelter
of parents of the applicant no.1 at Pune. The applicant no.1 is
housewife. She is having no independent source of income. The
applicant nos. 2 and 3 are minor sons. In the application for transfer,
it is stated that father of the applicant no.1 is a retired person and
therefore the applicants are in great financial restraint and obviously
they are the burden on the parents of applicant no.1. The distance
between Chandrapur and Pune is about 1000 Km. For pursuing the
proceedings at Chandrapur, obviously, the applicants are required to
remain present at Chandrapur. It gives an extra financial burden not
only to the applicants but also to her parents apart from the fact that
the applicant no.1 is a lady who is required to face physical
difficulties also in travelling this distance of 1000 km.
It is shown in the cause title that the non applicant no.1 is
doing the business. In my view, no prejudice will be caused to the
non applicants, if the matter is transferred from Chandrapur to Pune
with a direction that only the non applicant no.1 will be required to
attend the proceedings at Pune and the parents of non applicant no.1
i.e. non applicant nos. 4 to 8 will be necessary at Pune Court at the
time of recording of the evidence.
In view of above, following order is passed.
ORDER
(i) Criminal Application No.58/2016 is allowed.
(ii) Misc. Criminal Application No. 446/2009 pending on the
file of Judicial Magistrate First Class, Chandrapur is hereby
transferred to the file of Chief Judicial Magistrate, Pune.
(iii) Chief Judicial Magistrate, Pune, after receipt of record,
shall either retain the said on his file or can assign the said
proceeding to the file of other Judicial Magistrate First Class at Pune.
(iv) The Court on whose file the application will either be
transferred or is retained, the said Court shall issue fresh notice to
the non applicants and shall decide the proceeding, in accordance
with law, after following the principles of natural justice.
(v) Presence of the non applicant no.1-Ashok Tiple will be
sufficient at Pune Court, except on the dates of the evidence when
presence of other non applicants will also be necessary.
(vi) Fees of Ms M. S. Hiwase, Advocate appointed by the
Legal Aid Committee is fixed at Rs.5,000/-, which shall be inclusive
of all the expenses which she has already incurred.
Rule is made absolute in the above terms.