HC lays down six principles for trial transfers, says everyone's convenience matters
Taking cognisance of flooding of the courts with petitions seeking the transfer of dowry harassment cases based on the complainant-wife’s ease, the Punjab and Haryana High Court has ruled that comparative convenience of all concerned is required to be taken into consideration.
The assertion came as Justice Sumeet Goel laid down six guiding principles governing the transfer of trials.
He observed that the convenience of the complainant-wife was undoubtedly a key consideration, but it could not override the relative convenience and hardship faced by other stakeholders, including the accused, witnesses, and the State –– the primary prosecuting agency.
"The complainant/victim-wife, in a matrimonial-related offence FIR, has a right to participate in the trial, in accordance with law. Yet the State is the prime prosecuting agency in a FIR case….Convenience, nay comparative convenience, of all the concerned is required to be taken into consideration while adjudicating a transfer plea,” he asserted.
The court made it clear that the investigating officer usually remained present in the court on each and every date of hearing to assist the public prosecutor of the case. The presence of police officers, government doctors, and other officials as prosecution witnesses was also required to be factored into the transfer decision.
Justice Goel, in the process, drew a distinction between matrimonial disputes such as divorce or maintenance petitions and criminal cases alleging dowry harassment. The wife’s convenience in a transfer petition was required to be accorded pre-eminence and considered at a higher pedestal in matrimonial matters such as pleas for grant of divorce, or maintenance, “given the background of general socio-economic paradigm in our society”.
The court added that the principle could not be said to be applicable with the same vigour to FIR cases under Section 498-A IPC/Section 85 of BNS. Justice Goel observed matrimonial litigation, such as a divorce petition, was primarily between the couple, wherein she was required to independently and solely pursue her case. But the State/police was the main prosecuting agency in FIR cases.
Laying down the principles, the court held that a transfer could only be ordered if a fair trial was not possible at the location where the proceedings were ongoing. Such apprehensions were required to be based on "tangible material" and not mere conjecture.
The Bench added that a trial judge’s erroneous order, as corrected by a superior court, could not automatically lead to an inference of bias. It held that "very strong/cogent material" was required to prove bias sufficient to justify the transfer of trial on that ground. Mere fact that the other party in a transfer petition was a lawyer or had a close relationship with an advocate practicing in the court was insufficient for transfer, unless discernible prejudice is shown.
Justice Goel reiterated that universal parameters did not exist for ordering the transfer of trials. Each case was to be assessed on its unique facts, and broad resemblance to another case was not enough. Citing Lord Denning’s observation, the court remarked: "Each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect."
