SWAATI NIRKHI & ORS. versus STATE (NCT OF DELHI) & ORS. on 9 March 2021

1. The present Transfer Petition has been filed by the Petitionerunder Section 406 Cr.P.C. seeking transfer of Criminal Case No. 3483of 2017 titled as State v. Swaati Nirkhi & Ors. (arising out of FIR No.39/2016) from the Court of Metropolitan Magistrate 461 North West,Rohini Courts, New Delhi to the Court of Metropolitan Magistrate atAllahabad (Prayagraj), Uttar Pradesh.

2. The Respondent No.4 herein/Complainant filed FIR No. 39 on7.1.2016 before the Police Station, Mangol Puri under Section 389 readwith 34 IPC against 4 accused viz. Mr. Mohan Shrivastava, Ms. SwaatiSaxena, Sanjay Saxena, Shashank Saxena wherein it was stated that hisnephew Ashish Khare was married to Ms. Swaati Nirkhi (PetitionerNo.1 in the Transfer Petition) on 19[th] April 2015 in Delhi. That on 7.8.2015,Swaati Nirkhi left for her parental home in Allahabad, and did not returnthereafter, even though she was requested to come back by the family.On 25.11.2015, the Complainant received a message from one MohanSrivastava alias Akahauri Onkar Nath (Respondent No.2 in the T.P)that Ms. Swaati Nirkhi would not like to come back to Delhi, and thematter could be settled by paying Rs. 5 crores. On 25.11.2015, 3 personsvisited the house of the Complainant, and left a message with his driverand domestic help that the Complainant must pay Rs. 5 Crore to MohanSrivastava.

On 6.12.2015, the Complainant stated that it was learnt from thenewspaper reports and T.V. media report that Ms. Swaati Nirkhi hadfalsely alleged that she was gang raped on 4.11.2015 at 9 p.m. in thehouse of the Respondent No.4, by Respondent No.4 and his nephews-Abhishek and Ashish, with the assistance of his wife- Smt. Heema Khare.It was also stated that he had received messages to pay Rs. 5 Crore A

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Aotherwise he would be arrested on the ground of gang rape. On 7.1.2016,at 11.13 a.m. he received a call from a person who identified himself asMohan Srivastava to pay payment of Rs. 5 crore urgently. The 1[st]instalment could be paid to Swaati Nirkhi, Shashank Saxena and SanjaySaxena at Delhi in 2 days of Rs. 2.5 Crore. The Complainant has submittedthat he was warned not to get in touch with the police, otherwise heBwould be required to face dire consequences. The complainant statedthat he had kept the SHO informed of the subject matter since 10.12.2015through his Complaints. He stated that his driver Sushil Kumar hadinformed him of the plan of Mohan Srivastava, Swaati Nirkhi, SanjaySaxena and Shashank Saxena to get the entire family arrested, and thenCoccupy his property worth 10 to 15 crore. It was further alleged that theAccused had sought to allure the driver of Respondent No.4 by offeringa flat to him.

It was requested that a criminal case be registered against Mr.Mohan Srivastava, Ms. Swaati Nirkhi, Mr. Sanjay Saxena and ShashankSaxena.D

3. Pursuant to the registration of the FIR, a Charge Sheet wasfiled on 29.6.2017 in the Court of Metropolitan Magistrate, Rohini Court,Delhi against Accused No.1- Swaati Nirkhi, Accused No.2- SanjaySaxena, Accused No.3- Shashank Saxena, Accused No.4- MohanSrivastava @Akahauri Onkar Nath, and Accused No.5- Jugal KishoreEYadav under Section 389, 419, 506, 120B and 34 IPC. A list of 23 witnesseswas mentioned in the Charge Sheet, out of which 16 were officialwitnesses, and 7 were non-official witnesses.

4. On 28.11.2017, the Metropolitan Magistrate, 461, Rohini Court,Delhi took cognisance, and issued summons to the Accused persons.F5. In the meanwhile, the Accused Ms. Swaati Nirkhi, Mr. Sanjay

F5. In the meanwhile, the Accused Ms. Swaati Nirkhi, Mr. SanjaySaxena and Shashank Saxena filed the present Transfer Petition (Crl.)No.262 of 2018 before this Court, praying that the trial of Criminal No.3483 of 2017 titled as State v. Swaati Nirkhi and Ors. arising out of FIRNo. 39/2016 pending before the Court of the Metropolitan Magistrate,North West, Rohini Courts, New Delhi be transferred to the Ld.GMetropolitan Magistrate at Allahabad (Prayagraj) U.P.

6. This Court vide ex-parte Order dated 18.5.2018 allowed theTransfer Petition and directed that the criminal proceedings in the afore-mentioned case shall stand transferred to the Court of MetropolitanMagistrate at Allahabad, U.P from the Court of Metropolitan Magistrate,H461, Rohini Court, Delhi.

Since the Order was being passed ex-parte, it was left open tothe Respondents to approach this Court, if they were aggrieved by thesame.

7. The Complainant in the FIR i.e. Respondent No.4 in the TransferPetition filed M.A. No. 1589 of 2018 praying for recall of the Orderdated. 18.5.2018 passed by this Court in T.P. No (Crl.) 262 of 2018.

The said M.A was dismissed vide Order dated. 5.6.2018.

8. The Respondent No.4 then filed Review Petition (Crl.) No.671 of 2018 praying for Review of the Orders dated 18.5.2018 and5.6.2018 passed by this Court.

This Court issued Notice in the Review Petition vide Order dated24.10.2018, and ordered hearing in open Court.

9. After hearing the parties at length, this Court vide detailedJudgment dated 28.1.2021 allowed the Review Petition, and recalled theOrder dated 18.5.2018. It was directed that the Review Petitioner/Complainant be impleaded as Respondent No.4 in the Transfer Petition.The Transfer Petition was then taken up for de novo hearing.

10. We have heard the Counsel for the parties at length, andperused the affidavits filed.

The Petitioners have inter alia submitted that the Transfer Petitionought to be allowed since there are 9 cases pending between the partiesin Allahabad, out of which 6 cases have been filed by the RespondentNo.4, and 3 cases have been filed by the Petitioner No.1. Since theRespondent No.4 was prosecuting the 6 cases filed by him in Allahabad,and that no inconvenience would be caused if the proceedings arisingout of the FIR in the present case, were tried by the Court of theMetropolitan Magistrate at Allahabad.

It was further submitted that if the Petitioners were compelled todefend themselves in the proceedings at Delhi, it would be financiallyburdensome on them. However, while the Complainant and his familymembers who are a well to do family, would not be subject to any hardshipor inconvenience.

It was further submitted that the Petitioner No.1, due to the physicaland mental assault and harassment suffered by her, was not able towork and earn her livelihood. Furthermore, her father i.e. Petitioner No.2is a senior citizen suffering from various ailments and diseases.

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In these circumstances it was pleaded that the proceedings in thecriminal case may not be transferred back from Allahabad to Delhi.

11. Respondent No.2 who has been named as co-accused in theFIR, has supported the case of the Petitioners. It has been submittedthat he is discharging a public function as Deputy Mayor in Gaya, Bihar.BIt would be inconvenient for him to undertake such a long journey fromGaya to Delhi, as it would impinge on his time to discharge his publicfunctions.

12. Respondent No.3 has submitted that he was not named in theFIR, but was added in the Charge Sheet as an accused on the basis ofChearsay evidence. The prosecution of the case in Allahabad would beconvenient for him to defend the baseless allegations made by RespondentNo.4 against him.

13. The Transfer Petition was seriously opposed by RespondentNo.4 on the ground that the allegations mentioned in the present FIRDrelated to incidents which had occurred in New Delhi. Since no cause ofaction had taken place in Allahabad, the proceedings must be tried bythe Court of competent jurisdiction in New Delhi.

It was further submitted that out of the 23 witnesses, 12 officialwitnesses are situated in New Delhi. If the case is transferred out ofEDelhi, it would impinge upon their official work, since they would berequired to travel to Allahabad in these proceedings.

With respect to the cases filed by the present Petitioner inAllahabad, no incriminating material has been found against theRespondent No.4 in the FIRs instituted in State of U.P., even after beingFinvestigated several times by the Allahabad Police, Crime BranchAllahabad, and DSP Level Gazetted Lady Police Officer. It was furthersubmitted that the Petitioner No.1 herself had instituted 13 cases in Courtsin Delhi, Allahabad and before this Court, which she has prosecutedwithout expressing any difficulty, and there is no reason why an exceptionshould be made in the present case.

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It was further submitted that the Petitioners in the T.P have notappeared before the Metropolitan Magistrate, Allahabad in 36 hearingsfrom 9.7.2018 to 7.12.2020, even after the case was transferred toAllahabad (Prayagraj). The Transfer Petition was only a ruse to stall theproceedings in the present case.H

14. In a criminal case, the place of inquiry and trial has to be bythe Court within whose local jurisdiction, the crime was allegedlycommitted as provided by Section 177 of Cr.P.C.

“177. Ordinary place of inquiry and trial. Every offence shallordinarily be inquired into and tried by a Court within whose localjurisdiction it was committed.”

15. The cause of action as per the averments in the FIR arealleged to have arisen in New Delhi, where the matrimonial home of thePetitioner is situated.

This court has consistently held that a criminal case ought to beinquired and tried ordinarily where the cause of action has accrued[1]

In Abraham Ajith v. Inspector of Police[2], this Court held that :

“12. The crucial question is whether any part of the causeof action arose within the jurisdiction of the court concerned. Interms of Section 177 of the Code, it is the place where the offencewas committed. In essence it is the cause of action for initiationof the proceedings against the accused.

13. While in civil cases, normally the expression “cause ofaction” is used, in criminal cases as stated in Section 177 of theCode, reference is to the local jurisdiction where the offence iscommitted. These variations in etymological expression do notreally make the position different. The expression “cause of action”is, therefore, not a stranger to criminal cases.

14. It is settled law that cause of action consists of a bundleof facts, which give cause to enforce the legal inquiry for redressin a court of law. In other words, it is a bundle of facts, whichtaken with the law applicable to them, gives the allegedly affectedparty a right to claim relief against the opponent. It must include 1 Ramesh v. State of T.N., (2005) 3 SCC 507,Manish Ratan v. State of M.P (2007) 1 SCC 262Bhura Ram v. State of Rajasthan, (2008) 11 SCC 103Rajiv Modi v. Sanjay Jain, (2009) 13 SCC 241Sunita Kumari Kashyap v. State of Bihar, (2011) 11 SCC 301Amarendu Jyoti vs. State of Chattisgarh (2014) 12 SCC 362Babita Lila and Ors. vs. Union of India (UOI) (2016) 9 SCC 647Rupali Devi vs. State of Uttar Pradesh and Ors. (2019) 5 SCC 384Rhea Chakraborty vs. State of Bihar and Ors. 2020 SCC OnLine SC 6542 (2004) 8 SCC 100

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some act done by the latter since in the absence of such an act nocause of action would possibly accrue or would arise.

15. The expression “cause of action” has acquired ajudicially settled meaning. In the restricted sense cause of actionmeans the circumstances forming the infraction of the right or theimmediate occasion for the action. In the wider sense, it meansthe necessary conditions for the maintenance of the proceedingincluding not only the alleged infraction, but also the infractioncoupled with the right itself. Compendiously, the expression meansevery fact, which it would be necessary for the complainant toprove, if traversed, in order to support his right or grievance to thejudgment of the court. Every fact, which is necessary to be proved,as distinguished from every piece of evidence, which is necessaryto prove such fact, comprises in “cause of action”.

16. The expression “cause of action” has sometimes beenemployed to convey the restricted idea of facts or circumstanceswhich constitute either the infringement or the basis of a right andno more. In a wider and more comprehensive sense, it has beenused to denote the whole bundle of material facts.

17. The expression “cause of action” is generallyunderstood to mean a situation or state of facts that entitles aparty to maintain an action in a court or a tribunal; a group ofoperative facts giving rise to one or more bases for sitting; a factualsituation that entitles one person to obtain a remedy in court fromanother person. In Black’s Law Dictionary a “cause of action”is stated to be the entire set of facts that gives rise to an enforceableclaim; the phrase comprises every fact, which, if traversed, theplaintiff must prove in order to obtain judgment. In Words andPhrases (4th Edn.), the meaning attributed to the phrase “causeof action” in common legal parlance is existence of those facts,which give a party a right to judicial interference on his behalf.

18. In Halsbury’s Laws of England (4th Edn.) it has beenstated as follows:

“ ‘Cause of action’ has been defined as meaning simply afactual situation, the existence of which entitles one person toobtain from the court a remedy against another person. The phrasehas been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and everyfact which a defendant would have a right to traverse. ‘Cause ofaction’ has also been taken to mean that a particular act on thepart of the defendant which gives the plaintiff his cause ofcomplaint, or the subject-matter of grievance founding the action,not merely the technical cause of action.”

16. In the present case, we find that most of the prosecutionwitnesses are situated in Delhi. That 12 official witnesses are serving inNew Delhi. If the Transfer Petition is allowed, they would be required totravel from New Delhi to Allahabad (Prayagraj), which would causehinderance in performing their official duties.

17. The alleged apprehension of the Petitioners and RespondentNo.2 and 3 do not constitute any exceptional circumstances fortransferring the criminal case from Delhi to Allahabad (Prayagraj).

A three judge bench of this Court in Harita Sunil Parab v.State (NCT of Delhi)[3], held that :

“8. The apprehension of not getting a fair and impartialenquiry or trial is required to be reasonable and not imaginary,based upon conjectures and surmises. No universal or hard-and-fast rule can be prescribed for deciding a transfer petition, whichwill always have to be decided on the facts of each case.Convenience of a party may be one of the relevant considerationsbut cannot override all other considerations such as the availabilityof witnesses exclusively at the original place, making it virtuallyimpossible to continue with the trial at the place of transfer, andprogress of which would naturally be impeded for that reason atthe transferred place of trial. The convenience of the parties doesnot mean the convenience of the petitioner alone who approachesthe court on misconceived notions of apprehension. Conveniencefor the purposes of transfer means the convenience of theprosecution, other accused, the witnesses and the larger interestof the society. The charge-sheet in FIR No. 351 of 2016 revealsthat of the 40 witnesses, the petitioner alone is from Mumbai, twoare from Ghaziabad, and one is from Noida. The charge-sheet ofFIR No. 1742 of 2016 is not on record. A reasonable presumptioncan be drawn that the position would be similar in the same also.

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914SUPREME COURT REPORTS

[2021] 2 S.C.R.

A9. In Mrudul M. Damle v. CBI [Mrudul M.Damle v. CBI[4], it was noticed that early conclusion of the trialbecomes much more difficult involving more expenses for theprosecution by it having to bear travelling expenses of official andnon-official witnesses and all of which ultimately causes the trialto linger on for years.”B

18. The counsel for the Petitioner at the conclusion of hearing inthe present transfer petition made a prayer for continuation of InterimBail from arrest, which was granted by the High Court of Allahabadpursuant to the Order passed in the Transfer Petition.

CIt would be open for the Petitioner to move the appropriate Courtin New Delhi for interim relief after the proceedings are transferred.19. In view of the discussion above, the Transfer Petition isdismissed.

The proceedings arising out of FIR No. 39 of 2016 which wereDtransferred to the Court of Metropolitan Magistrate at Allahabad(Prayagraj), Uttar Pradesh are directed to be transferred back to theCourt of Metropolitan Magistrate 461 North West, Rohini Courts, NewDelhi.

20. The Registry is directed to transmit a copy of this Order to theECourts of the Metropolitan Magistrate at Allahabad (Prayagraj), UttarPradesh and the Metropolitan Magistrate 461 North West, Rohini Courts,New Delhi.

Parties are directed to appear before Court of MetropolitanMagistrate 461 North West, Rohini Courts, New Delhi on 15[th] April,F2021.

There will be no Order as to costs.

Pending Applications, if any, are accordingly disposed of.

GDivya Pandey

Petition dismissed.

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4 (2012) 5 SCC 706