SC: In Transfer Petition Court not to Determine Convenience of Petitioner Only

April 13, 2018

Case name: Harita Sunil Parab v. State of NCT of Delhi & Ors.

Date of Judgment: March 28, 2018

In the present case, the applicant sought transfer of two F.I.R. registered in Delhi and Ghaziabad respectively to the Court of competent jurisdiction at Mumbai, Maharashtra. The petitioner in the case alleged that she is a permanent resident of Mumbai and was finding it difficult to pursue matters in Delhi as her professional engagements in Mumbai were also suffering because of the same. On the other hand, the respondent husband opposed the transfer petition contending that the accused and the prosecution witnesses were situated in Delhi and if the petition is allowed then his professional engagements would be hindered.

Bench’s verdict

  • While deciding the aforesaid transfer petition, the Three-Judge Bench of the Supreme Court made reference to Supreme Court’s verdict in the case of Gurcharan Das Chadha vs. State of Rajasthan[1], wherein dealing with the issue for transfer of a case, it was observed that a case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not office. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the State of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.
  • The Court in the case opined that 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.
  • That no universal or hard and fast rule can be prescribed for deciding a transfer petition, which will always have to be decided on the facts of each case. 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, making it virtually impossible to continue with the trial at the place of transfer, and progress of which would naturally be impeded for that reason at the transferred place of trial.
  • That convenience of the parties does not mean the convenience of the petitioner alone who approaches the court on misconceived notions of apprehension.
  • That convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.

In view of the aforesaid observations and precedents, the Supreme Court rejected the transfer petitions.

Other cases on similar issue:

Mrudul M. Damle & Anr. vs. Central Bureau of Investigation, New Delhi[2]

Parminder Kaur vs. State of U.P.[3]

The entire case can be accessed here.

In order to combat the issue of transfer petition in matrimonial disputes, the Supreme Court in a recent case namely Krishna Veni Nagam v. Harish Nagam had emphasized on the availability of video conferencing facility in matrimonial cases. Read more here.

[1] (1966) 2 SCR 678

[2] 2012 (5) SCC 706

[3] (2007) 15 SCC 307

About the Author

Shilpi Sharan

- Shilpi Sharan is the Editor at Vakilno1.com - an Advocate with extensive knowledge in myriad fields of Law. She has a flair of writing and has legal publications in national and international law magazines to her credit. She focuses on legal research and aims at raising public awareness of laws in India.