Supreme Court Orders Transfer of Criminal Case Back to Delhi: Swaati Nirkhi vs. State (NCT of Delhi) (9 March 2021)

Introduction

Date of the Judgment: 9 March 2021
Citation: Not Available
Judges: Ashok Bhushan, J., Indu Malhotra, J.

When a crime is alleged to have occurred in one location, but the accused seeks to move the trial to another, what factors should the court consider? The Supreme Court of India recently addressed this question in a case involving allegations of extortion and criminal intimidation. The core issue was whether a criminal case should be transferred from Delhi to Allahabad, based on the convenience of the accused, or whether it should remain in Delhi where the alleged crime took place. The judgment was delivered by a two-judge bench comprising Justices Ashok Bhushan and Indu Malhotra, with Justice Indu Malhotra authoring the opinion.

Case Background

The case began with an FIR (First Information Report) filed on 7 January 2016, by the Respondent No. 4, alleging that the Petitioners, along with others, had committed offences under Section 389 read with Section 34 of the Indian Penal Code (IPC). The complainant stated that his nephew, Ashish Khare, was married to Ms. Swaati Nirkhi (Petitioner No. 1) on 19 April 2015, in Delhi. On 7 August 2015, Ms. Nirkhi left for her parental home in Allahabad and did not return, despite requests from the family.

On 25 November 2015, the complainant received a message from one Mohan Srivastava (Respondent No. 2) stating that Ms. Nirkhi would not return and that the matter could be settled by paying Rs. 5 crores. Later, three individuals visited the complainant’s house, reiterating the demand for Rs. 5 crores. The complainant also stated that he learned from media reports that Ms. Nirkhi had falsely alleged that she was gang-raped in his house on 4 November 2015. The complainant alleged that he received threats to pay the money or face arrest on false charges.

The complainant informed the Station House Officer (SHO) about these events. He also alleged that his driver informed him of a plan by the accused to get the entire family arrested and then occupy his property. The complainant requested that a criminal case be registered against Mr. Mohan Srivastava, Ms. Swaati Nirkhi, Mr. Sanjay Saxena, and Mr. Shashank Saxena.

Timeline:

Course of Proceedings

Following the registration of the FIR, a charge sheet was filed on 29 June 2017, in the Court of Metropolitan Magistrate, Rohini Court, Delhi, against Swaati Nirkhi and others under Sections 389, 419, 506, 120B, and 34 of the IPC. The Metropolitan Magistrate took cognizance of the case on 28 November 2017, and issued summons to the accused persons.

The accused, Ms. Swaati Nirkhi, Mr. Sanjay Saxena, and Mr. Shashank Saxena, then filed a Transfer Petition before the Supreme Court, seeking to transfer the case from Delhi to Allahabad. Initially, the Supreme Court allowed the transfer ex-parte on 18 May 2018. However, the complainant filed an application for recall of the order, which was dismissed. Subsequently, the complainant filed a Review Petition, which was allowed by the Supreme Court on 28 January 2021, recalling the transfer order and directing a fresh hearing.

Legal Framework

The primary legal provision at issue is Section 177 of the Code of Criminal Procedure (Cr.P.C.), which states:

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

This section establishes that a criminal case should generally be tried by a court within whose jurisdiction the crime was committed. The Supreme Court has consistently held that a criminal case should be inquired into and tried where the cause of action has accrued.

Arguments

The Petitioners argued that the Transfer Petition should be allowed because there were nine cases pending between the parties in Allahabad, six of which were filed by the Respondent No. 4 and three by Petitioner No. 1. They contended that since the Respondent No. 4 was already prosecuting the six cases in Allahabad, transferring the present case would not cause any inconvenience. They also argued that defending themselves in Delhi would be financially burdensome, while the Complainant and his family were well-off and would not face any hardship. Additionally, they stated that Petitioner No. 1 was unable to work due to physical and mental distress, and her father, Petitioner No. 2, was a senior citizen with ailments.

Respondent No. 2, a co-accused, supported the Petitioners, stating it would be inconvenient for him to travel from Gaya, Bihar, to Delhi, as it would interfere with his public duties as Deputy Mayor. Respondent No. 3, also an accused, argued that he was added to the charge sheet based on hearsay evidence and that prosecuting the case in Allahabad would be more convenient for him.

Respondent No. 4 strongly opposed the transfer, arguing that the allegations in the FIR pertained to incidents that occurred in New Delhi. He stated that since no cause of action had arisen in Allahabad, the proceedings should be tried in Delhi. He also pointed out that 12 of the 23 witnesses were official witnesses situated in Delhi, and transferring the case would disrupt their official duties. He further argued that the cases filed by the Petitioners in Allahabad had not yielded any incriminating material against him. Additionally, he noted that the Petitioners had themselves filed and prosecuted 13 cases in various courts, including Delhi, without expressing any difficulty. The Respondent No. 4 also stated that the Petitioners had not appeared before the Metropolitan Magistrate in Allahabad in 36 hearings, indicating that the transfer petition was merely a tactic to stall the proceedings.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame specific issues in a separate section. However, the core issue before the Court was:

• Whether the criminal case arising out of FIR No. 39/2016 should be transferred from the Court of Metropolitan Magistrate, Rohini Courts, New Delhi, to the Court of Metropolitan Magistrate at Allahabad (Prayagraj), Uttar Pradesh.

Treatment of the Issue by the Court

The following table demonstrates how the Court decided the issues:

Authorities

Judgment

The Supreme Court dismissed the Transfer Petition, holding that the criminal proceedings should be conducted in Delhi, where the cause of action arose.

The Court considered the authorities as follows:

• The Supreme Court relied on a series of cases, including Ramesh v. State of T.N., (2005) 3 SCC 507, Manish Ratan v. State of M.P (2007) 1 SCC 262, Bhura Ram v. State of Rajasthan, (2008) 11 SCC 103, Rajiv Modi v. Sanjay Jain, (2009) 13 SCC 241, Sunita Kumari Kashyap v. State of Bihar, (2011) 11 SCC 301, Amarendu Jyoti vs. State of Chattisgarh (2014) 12 SCC 362, Babita Lila and Ors. vs. Union of India (UOI) (2016) 9 SCC 647, Rupali Devi vs. State of Uttar Pradesh and Ors. (2019) 5 SCC 384, and Rhea Chakraborty vs. State of Bihar and Ors. 2020 SCC OnLine SC 654* to emphasize that a criminal case should be inquired into and tried where the cause of action has accrued.
• The Court referred to Abraham Ajith v. Inspector of Police, (2004) 8 SCC 100* to explain the concept of ’cause of action’ in criminal cases, stating that it is the place where the offense was committed.
• The Court also cited Harita Sunil Parab v. State (NCT of Delhi), (2018) 6 SCC 358* to highlight that the apprehension of not getting a fair trial must be reasonable and not imaginary, and that convenience of a party cannot override other considerations.
• The Court cited Mrudul M. Damle v. CBI, (2012) 5 SCC 706* to highlight that transferring a case can cause delays and increase expenses for the prosecution.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the principle that a criminal case should be tried where the cause of action arose, as per Section 177 of the Cr.P.C. The Court emphasized that the alleged offenses occurred in Delhi, and most of the witnesses were also located there. The Court also considered the practical implications of transferring the case, noting that it would cause inconvenience to the official witnesses and delay the trial. The Court was not swayed by the Petitioners’ claims of financial hardship or the pendency of other cases in Allahabad, as these were not considered sufficient grounds to override the jurisdictional requirements.

The ratio of fact to law in the court’s decision is as follows:

The Court’s reasoning was primarily based on the factual aspects of the case, such as where the alleged offenses occurred and where the witnesses were located. However, the legal principle of jurisdiction under Section 177 of the Cr.P.C was also a significant factor in the decision.

The court considered the arguments made by the Petitioners, including the pendency of other cases in Allahabad and the financial hardship they would face if the case were tried in Delhi. However, the court found that these arguments did not outweigh the jurisdictional requirements under Section 177 of the Cr.P.C. The court also noted that the Petitioners had not appeared before the Metropolitan Magistrate in Allahabad in 36 hearings, indicating that the transfer petition was merely a tactic to stall the proceedings.

The court also considered the practical implications of transferring the case, noting that it would cause inconvenience to the official witnesses and delay the trial. The court emphasized that the apprehension of not getting a fair trial must be reasonable and not imaginary, and that the convenience of a party cannot override other considerations.

The Supreme Court quoted from the judgment in Abraham Ajith v. Inspector of Police, stating:

“The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.”

The Supreme Court also quoted from the judgment in Harita Sunil Parab v. State (NCT of Delhi), stating:

“The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises… Convenience of a party may be one of the relevant considerations but cannot override all other considerations such as the availability of witnesses exclusively at the original place…”

The Court rejected the Petitioners’ arguments based on the principle that the convenience of the parties cannot override the location of the crime and the availability of witnesses. The Court emphasized that the primary consideration for determining the place of trial is where the cause of action arose.

Key Takeaways

• ✓ Criminal cases should generally be tried in the jurisdiction where the cause of action arose, as per Section 177 of the Cr.P.C.
• ✓ The convenience of the parties is a relevant consideration but cannot override the location of the crime and the availability of witnesses.
• ✓ Apprehensions of not getting a fair trial must be reasonable and not imaginary.
• ✓ Transferring cases can cause delays and increase expenses for the prosecution.
• ✓ The location of the witnesses and their convenience is a crucial factor in deciding the place of trial.

The judgment reinforces the principle that the place of trial is primarily determined by where the offense occurred. It clarifies that while the convenience of parties is a factor, it does not outweigh the jurisdictional requirements and the location of witnesses. This decision may impact future cases where parties seek to transfer criminal proceedings based on their convenience.

Directions

The Supreme Court directed that the proceedings arising out of FIR No. 39 of 2016, which were transferred to the Court of Metropolitan Magistrate at Allahabad (Prayagraj), Uttar Pradesh, be transferred back to the Court of Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi. The parties were directed to appear before the Court of Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi, on 15 April 2021.

Specific Amendments Analysis

There was no specific amendment analysis in the judgment.

Development of Law

The ratio decidendi of this case is that the place of trial in a criminal case is primarily determined by where the cause of action arose, as per Section 177 of the Cr.P.C. The convenience of the parties is a relevant consideration but does not outweigh the jurisdictional requirements and the location of witnesses. This judgment reinforces the existing legal position and does not introduce any new legal principles.

Conclusion

The Supreme Court dismissed the Transfer Petition filed by Swaati Nirkhi and others, ordering that the criminal case be transferred back to Delhi. The Court emphasized that the case should be tried in the jurisdiction where the cause of action arose, as per Section 177 of the Cr.P.C. The Court found that the alleged offenses occurred in Delhi, and most of the witnesses were also located there. The Court also considered the practical implications of transferring the case, noting that it would cause inconvenience to the official witnesses and delay the trial.