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Civil & Crl cases continue together or not is not a question for determination of transfer petition

I shall proceed on the basis that the suits being heard by the Delhi High Court would have points which could overlap with those involved in the criminal case pending in the Salem Court. But that very fact, by itself, in my view, would not justify transfer of the said case. The criminal case shall have to proceed in the Court of Judicial Magistrate and not in the High Court where the civil suits are being heard. Two different judicial fora would be hearing the civil cases and the criminal case. (Para 7)

RAJKUMAR SABU V. M/S SABU TRADE PRIVATE LIMITED

Transfer Petition (Criminal) No. 17 of 2021

7th May 2021


The Single Bench of Hon’ble Supreme Court consisting of Justice Aniruddha Bose has dismissed the transfer petition in the criminal case that is pending before the Salem Court.


The present proceeding arises out of a case instituted by the respondents, Sabu Trade Private Limited represented by their Managing Director, Gopal Sabu invoking jurisdiction of the Court of Judicial Magistrate No. IV, Salem (the Salem Court) under Section 156 (3) of the Code of Criminal Procedure, 1973. By filing the present application under Section 406 of the 1973 Code, the petitioner wants the case to be transferred to the Court of the Chief Judicial Magistrate, Patiala House Court, New Delhi.


The allegation of the respondents in the said case is on use of the trademark SACHAMOTI in respect of sago or sabudana by Rajkumar Sabu (the petitioner). According to the respondents, such use is illegal and unauthorized. The Respondents claim proprietary right over the said trademark. The complaint was instituted on 22nd May 2017. The Judicial Magistrate, Salem, had required the police authorities to conduct a thorough enquiry with regard to genuineness of the private complaint and a report was filed by the concerned Inspector of Police. The case was registered as CC No. 82/2018 on 5th April 2018. The Judicial Magistrate took cognizance of the alleged offences under Sections 420 of the Indian Penal Code and 103 of the Trademarks Act, 1999 and issued summons to the petitioner.


In 2016, the respondent had filed several civil suits for declaration and injunction to prevent use of said trademark in various courts. Thereafter, Both the parties filed transfer petitions for transferring the opponent’s suit to the Courts in which the respective parties had filed suits. Delhi High Court on 18th July 2018 passed an order stating:


OS No. 148 of 2016, titled as Sabu Trade Pvt. Ltd. v. Rajkumar Sabu & Anr., pending before the District Court, Salem, be transferred to the Delhi High Court for adjudication along with CS (COMM) No. 761 of 2016, titled as Mr. Rajkumar Sabu v. Ms. Kaushalya Devi Sabu & ors. pending before the delhi high court.


Now the petitioner wants the criminal case pending in the Salem Court to be transferred to the Patiala House Court, New Delhi. Two main grounds have been urged on behalf of the petitioner in support of his plea, argued by Mr. S. Guru Krishnakumar, learned Senior Advocate. One is that the points involved in the criminal case are similar to the suits which are being tried and determined by the Delhi High Court. The other ground taken is that the proceeding in the Salem Court is being conducted in Tamil, which the petitioner does not understand.


Mr. Gopal Sankarnarayan, learned Senior Advocate has highlighted, in course of his submissions on behalf of the respondent, the delay in approaching this Court seeking transfer of the criminal case. As per his submission, proceeding was registered on 5th April 2018 and has made substantial progress. The complaint has reached the stage of cross examination of the complainants’ witnesses by the petitioner. The transfer petition was filed on 12th January 2021. He also points out that personal appearance of the petitioner during trial stood dispensed with by an order of the Madras High Court. It is also his submission that the case pending in the Salem Court has criminal elements, which ought not to be mixed up with the civil suit.


After hearing both the parties, scrutinizing the facts and referring various landmark and related cases this bench leads to a conclusion that:


I shall proceed on the basis that the suits being heard by the Delhi High Court would have points which could overlap with those involved in the criminal case pending in the Salem Court. But that very fact, by itself, in my view, would not justify transfer of the said case. The criminal case shall have to proceed in the Court of Judicial Magistrate and not in the High Court where the civil suits are being heard. Two different judicial fora would be hearing the civil cases and the criminal case. (Para 7)


The respondents seem to be carrying on their business from Salem. In course of hearing before me, no question has been raised as regards territorial jurisdiction of the Salem Court in proceeding with the case, the transfer of which is asked for. Now, complaint is being made that the petitioner not being able to understand Tamil language, the case ought to be transferred to a Court in Delhi. Language was a factor considered by this Court in the case of Sri Jayendra Saraswathy Swamigal (supra), while selecting the Court to which the case was to be transferred. But language was not the criteria based on which transfer of the case was directed. I have briefly discussed earlier the reason for which transfer of the case was directed. The language factor weighed with this Court while deciding the forum to which the case was to be transferred after decision was taken to transfer the case for certain other reasons. (Para 8)


Ordinarily, if a Court has jurisdiction to hear a case, the case ought to proceed in that Court only. The proceeding in the Salem Court has not been questioned on the ground of lack of jurisdiction but on the ground contemplated in Section 406 of the 1973 Code. Jurisdiction under the aforesaid provision ought to be sparingly used, as held in the case of Nahar Singh Yadav & Anr. vs. Union of India & Ors. [(2011) 1 SCC 307]. Such jurisdiction cannot be exercised on mere apprehension of one of the parties that justice would not be done in a given case. This was broadly the ratio in the case of Gurcharan Dass Chadha (supra). In my opinion if a Court hearing a case possesses the jurisdiction to proceed with the same, solely based on the fact that one of the parties to that case is unable to follow the language of that Court would not warrant exercise of jurisdiction of this Court under Section 406 of the 1973 Code. Records reveal that aid of translator is available in the Salem Court, which could overcome this difficulty. If required, the petitioner may take the aid of interpreter also, as may be available. (Para 9)


Subsequently, the transfer petition is dismissed.



Swadheen Singh

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