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2006 (3) Crimes 199
BOMBAY HIGH COURT
N.A. Britto, J.
Shri Ram S.S. Parihar & Ors. — Appellants
versus
State of Goa & Ors. — Respondents
Criminal Writ Petition No. 5 of 2005
Decided on 21-4-2006
Counsel for the parties :
For the Petitioners:Mr. P.P. Singh, Advocate.
For the Respondent Nos. 3 and 4:Mr. I. Aga, Advocate.
IMPORTANT POINT
Where criminal case was pending in Court at Mumbai, cause of action to seek transfer of case to Court at Goa, even if assumed that offence arose in Goa, would arise in Mumbai and transfer petition would lie in High Court at Mumbai and not before Bench at Goa.
Headnote:Criminal Procedure Code, 1973 — Section 407 — Bombay High Court Appellate Side Rules, 1960 — Chapter XXXI, Rule 3 and Chapter IV — Charge-sheet for offences u/ss. 498A and 406
r/w. 34 IPC filed against petitioners in Court at Mumbai — Respondent No. 3 was got married to petitioner No. 2 at Ponda, Goa and after marriage she lived in matrimonial house in Goa — Petition for transfer of said criminal case from Court at Mumbai to Court at Ponda Goa — Petition filed before bench at Goa — Maintainability — Cause of action to try said offences would be different from a cause of action to file transfer application from a Court where case was pending — Since case was pending at Mumbai, cause of action to transfer the same would arise in Mumbai and not in Goa even assuming that offence arose in Goa — Application for transfer of said case would have to be dealt with under Chapter IV and not under Rule 3 of Chapter XXXI of Rules, 1960 — Petitioners would be at liberty to file appropriate application before the principal seat at Mumbai — Petition to be returned to be presented at Mumbai.(Paras 11 and 12)
Result : Petition disposed of accordingly.
Act Referred
CRIMINAL PROCEDURE CODE : S.407
INDIAN PENAL CODE : S.498(a), S.34, S.406
ORAL ORDER
N.A. Britto, J. — Heard Mr. P.P. Singh, the learned Counsel on behalf of the petitioners and Mr. I. Aga, the learned Counsel on behalf of the respondent Nos. 3 and 4. None present on behalf of respondent Nos. l and 2.
2.The petitioners are the accused and respondent No.3 is the first informant in a case which has been investigated by Cuffe Parade Police Station and a charge-sheet filed before the Additional Chief Metropolitan Magistrate, Esplanade Court, Mumbai, under Sections 406, 498-A r/w Section 34, I.P.C. and which is pending before the said Court.
3.It appears that respondent No. 3 was married to petitioner No. 2 and the said marriage took place at Ponda, Goa and after the said marriage respondent no. 3 came to reside with petitioner No.2, her husband, at the said place and thereafter disputes and differences have arisen between them. All the petitioners who are the accused in the said Criminal case No.l24/PW/2004 before the said Court at Mumbai are close members of the family of the said petitioner No. 2 and after his marriage, of respondent No. 3
4.This petition was filed invoking Section 407 of the Code of Criminal Procedure, 1973 (Code, for short) and Articles 226 and 227 of the Constitution of India with a prayer to transfer the said C.C. No.l24/PW/2004 from the 47th Court of Additional Chief Metropolitan Magistrate, Esplanade, Mumbai to be tried by the learned J.M.F.C. at Ponda, Goa but now it has been conceded, on behalf of the petitioners and, in my view rightly, that this petition be considered as a transfer application filed under Section 407(l)(c) of the Code. It is well settled that when the Code prescribes the remedy for transfer there is no question of exercising
extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
5.A preliminary objection has been taken, as regards the maintainability of the petition, before this Court sitting at Panaji and that is basically with reference to Rule 3 of Chapter XXXI of the Bombay High Court Appellate Side Rules, 1960 which reads as follows:-
"3.All appeals, applications, references, petitions including petitions for exercise of powers under Articles 226 and 227 of the Constitution of India, arising in the State of Goa, which lie to the High Court at Bombay, shall be presented to the Special Officer at Panaji, Goa and shall be disposed of by the Judges sitting at Panaji, Goa...
Provided that the Chief Justice may, in his discretion, order that any case arising in the State of Goa shall be at heard Bombay................
Provided further that the Chief Justice may, in his discretion, order that any case presented at Bombay be heard it Panaji, Goa."
6.Whilst this petition was pending before this Court here at Panaji, the respondent No.3 filed a transfer application being Miscellaneous Application No.6746/2005 to the Hon’ble Chief Justice at Mumbai and along with it filed another application bearing No.6747/2005 for interim reliefs and although the Hon’ble Chief Justice was pleased to stay further proceedings in this petition before this Court at Panaji, subsequently the stay was vacated and the main petition namely TMA/6746/2005 was made over by the Hon’ble Acting Chief Justice to be decided by Justice R. S. Mohite at Mumbai. The parties are in agreement that the said TMA/6746/2005 was filed in terms of the first proviso below Rule 3 of Chapter XXXI of the said Rules, 1960. Subsequently, on or about 8-3-2006 an Order has come to be made by Justice R. S. Mohite in the said TMA/6746/2005 which reads as follows:-
“Matter is moved urgently on the footing that the Criminal Writ Petition No.5/2005 before the Goa Bench is listed for admission. Even if the matter is admitted, the matter can still be transferred if so directed. Matter to be placed on the Board as scheduled”.
7.It is submitted that the said Order dated 8-3-2006 was made by a designated Judge of this Court, by the Hon’ble Chief Justice.
8.Since there is no stay of proceedings g
