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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MILIND N. JADHAV, J.
Pooja Sanjay Gondage - Applicant
Versus
State of Maharashtra & Ors. - Respondents
Criminal Application No. 311 of 2021
Decided on : 16-10-2024
For the Appellant : Ms. Rekha Musale a/w Ms. Shama Mulla & Ms. Tejasweeta Bhosale i/by The Laureate
For the Respondent: Ms. Sangita E. Phad
The court emphasized the importance of transferring cases for convenience and restoring dismissed applications to ensure justice, particularly in light of the Applicant's financial constraints.
Headnote:(A) Criminal Procedure Code, 1973 - Section 407 - Transfer of criminal case - Application for transfer of RCC No. 203/2018 from JMFC, Majalgaon to JMFC, Thane allowed due to financial constraints and hardship faced by the Applicant, who is the primary caregiver of her son - The court emphasized the need to avoid multiplicity of proceedings and conflict of decisions. (Paras 4, 9, 10, 12)
(B) Domestic Violence Act, 2005 - Restoration of D.V. Application No. 398/2018 - The court quashed the dismissal of the D.V. Application for non-prosecution, recognizing the Applicant's financial difficulties and the interdependence of the cases. (Paras 9, 10, 12)
Facts of the case:
The Applicant, a wife and mother, sought the transfer of her criminal case due to severe financial constraints and the need for proximity to her residence in Thane. She has not received maintenance for her son since separation from Respondent No. 2.
Findings of Court:
The court found it just to transfer the case and restore the D.V. Application, emphasizing the hardship faced by the Applicant and the need for expediency in justice.
Issues: The main issues included the necessity of transferring the case for convenience and the restoration of the D.V. Application dismissed for non-prosecution.
Ratio Decidendi: The court ruled that under Section 407 of Cr.P.C., it is expedient for the ends of justice to transfer the case and restore the D.V. Application, considering the Applicant's financial constraints and the interdependence of the cases.
Result: Application allowed.
JUDGMENT :
1. Heard Ms. Musale, learned Advocate for Applicant and Ms. Phad, learned APP for State. None appears for Respondent Nos.2 to 6.
2. By filing the present Application, Applicant - wife seeks transfer of her Criminal Case i.e. RCC No. 203/2018 pending before the JMFC, Majalgaon, District Beed to JMFC, Thane.
3. Respondent Nos. 2 to 6 have been duly served as noted by the Registry as far back as on 03.03.2022. It is an irony that the Application has remained pending since then. From the series of orders passed by this Court, it is gathered that Respondent Nos. 2 to 6 have remained absent on almost all dates. Matter was listed before me for the first time on 09.10.2024. It was posted for hearing today. It cannot be protracted any further in the facts of the present case.
4. At the outset, Ms. Musale would submit that Applicant is presently residing in Rama Mata Chawl, Ambika Nagar-2, Wagale Estate, Thane (W) along with her mother and brothers. She would submit that out of the wedlock between Applicant and Respondent No. 2, one son has been born in the year 2016 who would now be about 8 & 1/2 years old. She would persuade me to read the grounds stated in the Application which are serious in so far as Applicant and her family members are concerned. The contents of paragraph Nos. 3(III) and (IV) are such that they cannot be disbelieved and it shakes the conscience of this Court. Apart from providing support, medical care, schooling, education etc. to the son who is residing with Applicant for whom she is the primary caregiver, it is seen that there are severe financial constrains faced by Applicant as also her family. It is averred that mother of the Applicant is a debris collector and both her brothers are young and hence there is no fixed family income.
5. Ms. Musale would submit that in the proceedings seeking maintenance, Court has issued notice. She would also inform the Court that Applicant has lodged FIR dated 25.05.2018 with Wagle Police Station, Thane (W) as averred in paragraph No. 3(X) of the Application for the offences punishable under Sections 498-A, 323, 504, 406 r/w 34 of IPC. In view of the above grounds and proximity of distance between the two destinations and the hardship that would be encountered by Applicant, she would urge the Court to allow the present Application.
6. Ms. Phad, learned APP appearing for State would submit that considering the Application and the grounds stated therein, this Court be pleased to pass appropriate orders in accordance with the provisions of Section 407 of Cr. P.C. in accordance with law.
7. I have perused the record of the case and the pleadings in the present Application. Before I advert to the same, Ms. Musale would draw my attention to one more fact and seeks indulgence of the Court to pass appropriate directions and orders considering the power of Court to pass order for transfer of Criminal Cases as contained in Chapter XXXI of Cr.P.C. and more particularly under Section 407 of Cr.P.C. She would submit that Applicant has filed D.V. Act proceedings bearing D.V. Application No. 398/2018 before JMFC, Court No. 1, Thane. Averment to that effect is made in paragraph No. 3(XII) at page No. 9 of the Application. She would submit that said Application has been dismissed for default on 08.09.2023. She would submit that Applicant has informed that due to the financial constraints, it would be virtually impossible for her to revive and restore the said Application which has been stood dismissed for non-prosecution and seek setting aside of the order dated 08.09.2023. She would inform the Court that despite this, Applicant has informed her that she would see what she can do to restore the said Application. She is mentioning this fact before this Court only because of two reasons. One is that for the past several years since Applicant's separation from Respondent No. 2, she has not received a single farthing towards her maintenance or for maintenance of her son who is residing with he
