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Criminal case ought to be inquired and tried ordinarily where the cause of action has accrued



Swaati Nirkhi and Ors. v. State (NCT of Delhi) and Ors.

Transfer Petition (CRL.) No. 262 of 2018

Decided on March 09, 2021.


A two-judge bench comprising of Justice Ashok Bhushan and Justice Indu Malhotra decided the present case. The Court dismissed the present transfer appeal and directed that the proceeding, which was transferred to the Court of Metropolitan Magistrate at Allahabad (Prayagraj), will be transferred back to the court of Metropolitan Magistrate 461 North West, Rohini Courts, New Delhi.


On 07.01.2016, the Respondent filed FIR No.39 under Section 389 read with Section 34 IPC against the four accused, Mr. Mohan Shrivastava, Ms. Swaati Saxena, Sanjay Saxena, Shashank Saxena wherein it was stated that his nephew Ashish Khare was married to Ms. Swaati Nirkhi (Petitioner No.1 in the Transfer Petition) on 19th April 2015 in Delhi. On 07.08.2015, Swaati left for her home in Allahabad and refused to return even after a constant request from the family. On 25.11.15, the complainant’s house was visited by 3 people who left a message to the complainant’s driver that Swaati will not return unless payment of Rs. 5 crores was made to Mohan Shrivastava. On 06.12.2015, the complainant heard from T.V. and newspaper reports that Swaati has falsely alleged that she was gang-raped on 04.11.2015 at 9 p.m by the complainant and his two nephews, with assistance from his wife. On 7.1.2016, the complainant received a call from Mohan Shrivastava demanding the payment of 5 crores in two installments and was warned not to get in touch with the police.

The complainant remained in contact with the SHO since 10.12.2015 and stated that his driver Sushil Kumar had informed him of the plan of Mohan Srivastava, Swaati Nirkhi, Sanjay Saxena and Shashank Saxena to get the entire family arrested, and then occupy his property worth 10 to 15 crore. It was further alleged that the accused had sought to allure the driver of Respondent No.4 by offering a flat to him. This led to the complainant filing a criminal case against the accused. Pursuant to the registration of the FIR, a charge sheet was filed on 29.6.2017 in the Court of Metropolitan Magistrate, Rohini Court, Delhi and 23 witnesses were called.

The accused filed the present transfer petition praying that the case before the Court of the Metropolitan Magistrate, North West, Rohini Courts, New Delhi be transferred to the Ld. Metropolitan Magistrate at Allahabad (Prayagraj) U.P. The Court passed an ex-parte order to transfer the case on 18.5.2018, which was opposed by the Respondent. The present Transfer Petition was then taken up for de novo hearing.


The Petitioner submitted that the transfer petition ought to be allowed as there are 9 pending cases between the parties in Allahabad, adding further that they will incur financial losses if the transfer is not allowed as they have to travel from Allahabad to Delhi. The Petitioner also stated that Swaati Nirkhi has suffered physical and mental assault, which has traumatized her and made her unable to work and earn a livelihood and it will be difficult for her father, who is a senior citizen, to travel.


Respondent No.2 who has been named as co-accused in the FIR, has supported the case of the Petitioners. It has been submitted that it would be inconvenient for him to undertake such a long journey from as it would impinge on his time to discharge his public functions. Respondent No.3 has submitted that he was not named in the FIR, but was added in the Charge Sheet as an accused on the basis of hearsay evidence.


Respondent No.4, who strongly opposed the transfer petition, stated that since the FIR was filed in regard to the incident which occurred in New Delhi, it should be tried by the court of competent jurisdiction in New Delhi. Further, they stated that 12 witnesses are from Delhi, which would be an inconvenience for them to travel to Allahabad to attend the proceedings. The Respondent stated that Petitioner No.1 has instituted 13 cases in Courts in Delhi, Allahabad and before this Court without any difficulty, and no exception should be made in this case. It was contended that the transfer petition was only filed to stall the case.


The Court heard the Counsel for both parties at length.


The Court took note of Section 177 of Cr.P.C. and stated:

The cause of action as per the averments in the FIR are alleged to have arisen in New Delhi, where the matrimonial home of the Petitioner is situated. This court has consistently held that a criminal case ought to be inquired and tried ordinarily where the cause of action has accrued. (Para 15)


The Court observed:

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


The Court held:

The alleged apprehension of the Petitioners and Respondent No.2 and 3 do not constitute any exceptional circumstances for transferring the criminal case from Delhi to Allahabad (Prayagraj). (Para 17)


The present transfer petition was dismissed.



Utkarsh Kumar Jayaswal

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