Point of Law : An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial.

JUDGMENT :

[Mohd. Azhar Husain Idrisi, J.]

1. Heard learned counsel for the revisionist and learned A.G.A. for the State.

2. As per office report dated 17.02.2023/4.3.2023, notice issued by this Court vide order dated 12.1.2023 has been served upon opposite party nos. 2 to 6 but despite service of notice, no one has appeared on their behalf. Therefore, the Court is proceeding to decide the case on merits.

3. The present transfer application has been moved under Section 407 Cr.P.C. against the opposite party nos. 2 to 6 with prayer to transfer the entire proceedings of Case No. 2554 of 2019 (Sonam Rai Vs. Rakesh Rai & others), under Sections 498-A, 323, 504, 506, 120-B IPC and Section 3/4 Dowry Prohibition Act, Police Station Tahabarpur, District Azamgarh, pending before the learned Judicial Magistrate, Azamgarh to the court of competent jurisdiction at District Mau.

4. Succinctly, the applicant's case is that applicant has filed a complaint on 27.8.2019 under Sections 498-A, 323, 504, 506, 120B IPC and Section 3/4 Dowry Prohibition Act against the opposite party nos. 2 to 6 for summoning them.

5. Since 27.8.2019 the police has not submitted any report and inspite of the statement under Sections 200 and 202 Cr.P.C. the opposite party nos. 2 to 6 have not been summoned.

6. The applicant is originally resident of village Kothiyar, Police Station Tahabarpur, District Azamgarh. Presently she is resident of Hakikatpura, Police Station Dakshin Tola, Tehsil Maunath Bhanjan, District Mau while the opposite party no. 2 (husband) is resident of village Kothiyar, Police Station Tahabatpur, District Azamgarh.

7. Learned A.G.A. vehemently opposed the submissions made by learned counsel for the applicant, but could not dispute the aforesaid facts.

8. The instant transfer application has been moved by applicant Sonam Rai under Section 407 Cr.P.C., which deals with transfer of criminal cases by High Court from one district to other district or from one court to another court in the same district. A resume of Section 407 Cr.P.C. may be mentioned as under:-

9. Here it is apposite to mention that in view of sub-section (1) of Section 407 Cr.P.C. a case can be transferred, whenever it is made to appear to High Court407. Power of High Court to transfer cases and appeals.

(1) Whenever it is made to appear to the High Court-

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(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.

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or withou