Full Judgment Text
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CASE NO.:
Special Leave Petition (crl.) 6163 of 2004
PETITIONER:
Smt. Parminder Kaur
RESPONDENT:
State of U.P. & Anr
DATE OF JUDGMENT: 14/03/2007
BENCH:
C. K. Thakker & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
SPECIAL LEAVE PETITION (CRL.) No.6163 of 2004
[With Transfer Petition (Crl.) No. 71 of 2005
and Transfer Petition (Crl.) No. 75 of 2005]
Lokeshwar Singh Panta, J.
Transfer Petition (Crl.) No. 71 of 2005 and Transfer
Petition (Crl.) No. 75 of 2005:
These are unfortunate litigations amongst the most
intimate family members who are intensely involved in inter se
civil, criminal and revenue litigations in various courts in
different States.
These two transfer petitions under Section 406 of the
Code of Criminal Procedure [for short, "Cr.P.C."] have been
filed by the petitioner seeking transfer of case No. 3045/2004
titled as State of U.P. v. Parminder Kaur under Sections 446,
467, 468, 471 and 420 of the Indian Penal Code [for short,
"IPC"] and Case No. 1434/2004 under Sections 466, 468, 471
and 420 of IPC pending in the Court of Chief Judicial
Magistrate, Rampur, Uttar Pradesh, to the Court of Chief
Metropolitan Magistrate, Tis Hazari Court, Delhi or to the
Court of Chief Judicial Magistrate, Chandigarh.
The relevant facts giving rise to the filing of these
petitions are set out as under:-
Smt. Parminder Kaur, petitioner herein, and her
husband Lt. Col. Hargobind Singh (Retd.) are aged persons.
They are not keeping good health and are suffering from
various diseases. They have got four daughters but no son.
The daughters are settled in the United States of America
[USA]. The petitioner and her husband because of their old
age and ill-health are almost dependent on their daughters
and are residing with them in USA for getting medical
treatment and care. Lt. Col. Hargobind Singh is a retired
Army Officer. While in service, he purchased some
agricultural land in village Behait, Tehsil Bilaspur, District
Rampur, Uttar Pradesh. He appointed his younger brother
Har Gur Saran Singh, respondent No. 2 herein, as his
Attorney vide Power of Attorney dated 3rd April, 1970
authorising him to look after, maintain and deal with his
property. Smt. Amrinder Kaur, daughter of the petitioner, got
some land in the same village and she too appointed
respondent No. 2 as her Attorney on 27th March, 1991. It is
alleged in these petitions that after lapse of some time the
husband of the petitioner found the conduct of respondent No.
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2 unfair and dishonest therefore, on 29.07.1975 he revoked
the Power of Attorney given to respondent No. 2. In spite of
the revocation of Power of Attorney, respondent No. 2
transferred the land of the husband of the petitioner by
registered sale deed in favour of his relatives on 07th January,
1996 and 10th January, 1996 respectively. On the basis of
those sale deeds, names of the relatives of respondent No. 2
were recorded in the Revenue records by obtaining mutation
orders dated 07th March, 1996 recorded by the Tehsildar,
Bilaspur in Mutation Record Nos. 228-B of 1996 and 229-B of
1996. According to the petitioner, the mutation orders were
obtained fraudulently and at the back of the petitioner’s
husband by respondent No. 2. Smt. Amrinder Kaur, daughter
of the petitioner, also revoked her Power of Attorney and asked
respondent No. 2 not to deal with her land any more in any
manner. But irrespective of the revocation of the said Power of
Attorney, respondent No. 2 transferred her land in the name of
his daughter Namrata Chandi and other near relatives by
registered sale deed dated 03rd July, 1991 and obtained
mutation order dated 30th August, 1991 of the Tehsildar,
Bilaspur, recorded in Mutation Case No. 8-M of 1991.
The husband of the petitioner then appointed the
petitioner as his Attorney by executing Power of Attorney dated
25th September, 1997 in her favour authorizing her to deal
with his land at village Behait. Similarly, Smt. Amrinder Kaur
appointed the petitioner as her Power of Attorney executed on
4th February, 2000 with regard to her land.
The case of the petitioner is that when she came to know
about the transactions made by respondent No. 2 and
mutation orders recorded by the Tehsildar, the petitioner filed
three suits bearing Original Case Nos. 266/2002, 267/2002
and 268/2002 for declaration and permanent injunction inter
alia challenging the legality and validity of the sale deeds in
the trial court at Rampur. Simultaneously, on 27th May, 2002
the petitioner filed three revision applications [being Revision
Application Nos. 38/2001-2002, 39/2001-2002 and 40/2001-
2002] on behalf of her husband and daughter before the
Collector, Rampur, for setting aside the mutation order dated
07th March, 1996 and order dated 30th August, 1991. The
Collector, Rampur, dismissed all the three revision
applications by order dated 16th October, 2002 on the sole
ground of delay of 6-11 years in challenging the impugned
mutation orders of the Tehsildar.
Feeling aggrieved, the petitioner preferred three Civil Writ
Petition Nos. 4470/2003, 4472/2003 and 4475/2003 before
the High Court of Judicature at Allahabad. The writ petitions
were dismissed by the High Court in view of the pendency of
the civil suits in the civil court.
The petitioner alleges in these proceedings that after
instituting the three civil suits in the trial court, she and her
husband received serious threats to their lives from
respondent No.2. She alleges that respondent No. 2 even
hired some anti-social persons directing them to chase the
petitioner when she had gone to Rampur and other places.
The petitioner stated that respondent No. 2 has made her life
and life of her husband miserable and he is bent upon to harm
them physically and mentally. Therefore, on 25th August,
2003 the petitioner filed Transfer Petition Nos. 564, 565 and
568 of 2003 in this Court praying for transfer of civil suits
from the Court of Civil Judge, Rampur, Uttar Pradesh, to Civil
Judge, Tis Hazari, Delhi. In the meantime, as a counter blast,
respondent No. 2 filed an application/complaint dated 25th
September 1996 before the Superintendent of Police, Rampur,
and obtained an order of registration of false and fabricated
case FIR No. 160 dated 17th October, 2003 in Police Station,
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Bilaspur, District Rampur, under Sections 463, 468, 420 of
IPC on the allegations that during hearing of revision
applications filed by the petitioner against the mutation orders
before the Collector and an application for condonation of
delay in filing the said revision petitions, the Collector had
noticed that the dates of applications submitted for obtaining
copies of orders of mutations recorded by Tehsildar, Bilaspur,
were interpolated for 09 May, 2002 as 18 May, 2002. The
Chief Judicial Magistrate, Rampur on 10th October, 2003
issued warrant of arrest against the petitioner. On 19th
December, 2003, respondent No. 2 and some police personnel
accompanying him forcibly dragged the petitioner from
Chandigarh and she was brought to Rampur in a private
vehicle. On 20th December, 2003, she was produced in the
Court of the Chief Judicial Magistrate, Rampur. She filed bail
application which came to be rejected by the Chief Judicial
Magistrate on 23rd December, 2003. In the meantime, the
police filed charge sheet in the court of the Chief Judicial
Magistrate against the petitioner on 22nd December, 2003
under Sections 466, 468, 471 and 420 of IPC, the subject
matter of Case No. 1434/2004. However, on 24th December,
2003 the petitioner was released on bail by the Additional
Sessions Judge, Fast Track Court No. 2, Rampur.
Again, on 27th February, 2004 the respondent No. 2 filed
one more complaint making similar allegations and the police
under the influence of respondent No. 2 registered another FIR
under Sections 466, 467, 468, 471 and 420 of IPC against the
petitioner. On the basis of the said charge sheet, the Chief
Judicial Magistrate, Rampur, on 13th July, 2004 took
cognizance of Case No. 3045/2004 against the petitioner. On
25th May, 2004/3rd June, 2004, the petitioner filed Criminal
Miscellaneous Application No. 4313 of 2004 under Section 482
Cr.P.C. for quashing Case No. 1434/2004 before the High
Court of Judicature at Allahabad which, according to the
petitioner, is still pending.
This Court vide order dated 9th August, 2004 transferred
Original Case No. 268/2002 titled as Col. Hargobind Singh
through Attorney Smt. Parminder Kaur v. Prabhjot Singh & Ors.,
Original Case No. 266/2002 titled as Col. Hargobind Singh
through Attorney Smt. Parminder Kaur v. Har Gur Saran Singh
& Ors. and Original Case No. 267/2002 titled as Smt.
Amrinder Kaur through Attorney Smt. Parminder Kaur v. Har
Gur Saran Singh & Ors. pending in the Court of Civil Judge
(Junior Division), Rampur, Uttar Pradesh, to the District
Judge, Tis Hazari Courts, Delhi, who was requested to either
try the proceedings himself or to make over the same for trial
to any other court of competent jurisdiction.
The petitioner on the premises above-said filed these
transfer petitions inter alia contending that she is an ailing old
woman of 72 years of age and needs medical and physical care
and in such conditions, it is very difficult for her to undertake
tiring journey from Chandigarh or from Delhi to the Court of
Chief Judicial Magistrate, Rampur to defend the cases pending
against her. The petitioner’s husband is also an old and ailing
person of 76 years of age who is wholly dependent on his
daughters and is residing with them in USA. There is no other
male member in the family of the petitioner who would
accompany her to Rampur. The police of Rampur is in
collusion with respondent No. 2 who is a nefarious litigant and
in such circumstances no fair trial is possible from the court
at Rampur. The civil suits are pending in Delhi and therefore,
the criminal cases lodged by respondent No. 2 against the
petitioner at Rampur shall also be transferred to Delhi or
Chandigarh in the interest of justice and as the petitioner’s life
would be in danger if she goes to Rampur to appear in the
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court during the trial of the cases in view of an open threat
extended to her life by respondent No. 2.
In reply to the transfer applications, respondent No. 2
has given a detailed background of the family history of the
parties involved in these cases. In substance, his defence is
that his elder brother Lt. Col. (Retd.) Hargobind Singh,
husband of the petitioner, purchased 23 acres of land in
Revenue Estate of village Behait, Tehsil Bilaspur, District
Rampur, Uttar Pradesh. His brother executed General Power
of Attorney dated 3rd April, 1970 duly registered in the Office of
Sub-Registrar, Saugor (Madhya Pradesh), appointing and
constituting respondent No. 2 as a General Attorney
authorizing him to cultivate, look after and deal with his
agricultural land. Out of 23 acres of land, the petitioner’s
husband had gifted 6 acres of land to his adopted daughter
Smt. Amrinder Kaur in the year 1979. Smt. Amrinder Kaur
also appointed respondent No.2 as her Attorney with effect
from 27th March, 1991. He stated that as an obedient brother
and as an affectionate uncle of Smt. Amrinder Kaur he
cultivated, protected and supervised the landed property of his
brother and niece to the best of his ability and from time to
time he remitted the profits derived from their landed property
to them. He submitted that he paid the land revenue of the
lands and also protected the lands from being acquired by the
State Government under the Provisions of U.P. Agricultural
Land Ceiling Act. He averred that since the year 1987 the
petitioner and her husband are citizens of USA and they are
persons of means and status whereas, on the other hand, he
is a marginal/poor farmer holding meagre agricultural land.
He pleaded that in the year 1990, the petitioner’s husband
and his daughter asked him to get some portions of their
lands sold and transferred, but at that point of time there were
no buyers readily available in the market due to terrorist
activities prevailing in the area. However, later on as per the
instructions of Smt. Amrinder Kaur, he sold 06 acres of her
land in favour of his daughter Smt. Namrata Chandi and Col.
Sarabjit Singh vide registered sale deed dated 3rd July, 1991
and consequently, the land was mutated in their names in the
revenue records. Similarly, on the instructions of petitioner’s
husband he sold 9 acres of land by a registered sale deed
dated 7th January, 1996 in favour of Prabodh Singh and
Balbir Singh and handed over the possession of the land
bearing Khata No. 1/5 to them. Another piece of land
measuring 5.36 acres owned by the husband of the petitioner
was also sold by registered sale deed dated 10th January, 1996
to Manjit Singh and Balbir Singh. Thus, as an Attorney of
petitioner’s husband and daughter and on their express
instructions he sold and transferred their agricultural land
measuring 20.36 acres to the bona fide purchasers and the
amounts of sale consideration were duly remitted by bank
drafts to both the owners without any delay on his part.
It is his case that the petitioner came to India in the year
2002 and by that time the prices of land shot up in and
around the village where the agricultural lands are situated.
He stated that the petitioner is actuated with lust and greed
for money and hence compelled him to get more money from
the above named bona fide purchasers who are the common
relatives of both of them. He stated that he tried his best to
persuade the petitioner not to raise any demand for more
money but she remained adamant and on his refusal to
accede to her illegal demand, the petitioner unblemishably
extended threat to teach him a lesson. She with a mala fide
and dishonest intention filed civil suits for cancellation of the
sale deeds in the Court of Civil Judge, (Junior Division),
Rampur, which later were on transferred by this Court to the
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court in Delhi. He stated that the petitioner interpolated the
dates in the certified copies issued from the revenue records,
Rampur, with a mala fide intention to get delay of more than
eleven years condoned from the Collector against the order of
Tehsildar, Rampur. She submitted forged and fabricated
documents in the civil court. He has admitted having filed two
criminal cases against the petitioner in the Court of Chief
Judicial Magistrate, Rampur, in which she was granted bail by
the Additional Sessions Judge, Fast Track Court, Rampur.
Further, he stated in his counter affidavit that he and his
elder brother Lt. Col. (Retd.) Hargobind singh are joint owners
of House No. 1394, Sector 33-C at Chandigarh in equal shares
as per family settlement dated 10th November, 1970. The
petitioner with a mala fide intention to grab the share of
respondent No. 2, clandestinely entered into an agreement of
sale of that house with one Pritam Kaur Sekhon, resident of
3015, Sector 19-D, Chandigarh, and received Rs. 1,00,000/-
from her as advance money. Subsequent to the first
agreement, the petitioner again entered into second agreement
with regard to the same property with Charan Jiv Singh and
Mrs. Hariti Singh, resident of House No. 324, Sector 9-D,
Chandigarh, and received Rs. 5,00,000/- from them as
earnest money and obtained No Objection Certificate [NOC] in
favour of the purchasers from the Estate Office, Chandigarh.
The petitioner after receiving the earnest money again backed
out from the terms of the agreement and also compelled
Charan Jiv Singh and Mrs. Hariti Singh to file civil and
criminal cases against her. They got a public notice published
in a local daily advising the public at large not to enter into
any agreement in regard to the said property as it was
purchased by them from the petitioner. He stated that he
came to know about the aforesaid illegal and nefarious acts of
the petitioner regarding the disposal of House No. 1394,
Sector-33 C at Chandigarh. He filed Civil Suit No.79/2004
against his elder brother for declaration claiming 50 per cent
share in the joint property which is pending in the Court of
Civil Judge, Junior Division, Chandigarh. He stated that both
the petitioner as well as her husband Lt. Col. (Retd.)
Hargobind Singh are contesting the said case. The petitioner
has lodged several false complaints in the court at Chandigarh
against him and his son who is serving as Major in the Indian
Army. It is his version that he was granted anticipatory bail
by the court in a case registered by the petitioner vide FIR No.
228 dated 20th July, 2005 of P.S. Sector 34, Chandigarh. The
petitioner filed an application dated 24th October, 2005 for
cancellation of his bail but the same was rejected by the
District and Sessions Judge, Chandigarh.
He submitted that the petitioner is a lady of means and
can very well afford to defend the case in the Court of Chief
Judicial Magistrate, Rampur, whereas he is a poor farmer and
would not be in a position to get the criminal cases prosecuted
against the petitioner at Delhi or Chandigarh because of his
inadequate financial position and being an old man of 65
years of age, he is unable to bear with the arduous journey of
about 400-500 kms. by train from village Behait to Delhi or
Chandigarh if the cases are transferred to either of these
places.
In rejoinder affidavit, the petitioner has reiterated and
reasserted the averments made by her in the transfer petitions
and denied the counter allegations made by respondent No.2
in his counter affidavit.
Shri Avadhesh Kumar Vijeta working as C.O., Bilaspur,
District Rampur, Uttar Pradesh, in his affidavit filed on behalf
of the State of Uttar Pradesh, states that the FIR dated
17.10.2003 came to be registered against the petitioner at the
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instance of respondent No.2 and after completion of the
investigation charge sheet was laid before the trial court. He
stated that the petitioner had attended the proceedings of the
criminal cases before the Chief Judicial Magistrate, Rampur
and she has not lodged any complaint with the police against
respondent No.2 for extending threats to her life or causing
any physical harm to her. He stated that if the criminal cases
are transferred to the courts of other States, it would result in
undue delay in the disposal of the cases and the State
Government would also incur additional and unnecessary
expenditure of the official witnesses, who will have to
undertake their journey from Rampur to other places outside
the State.
We have heard the learned counsel for the petitioner and
learned counsel for the State of U.P. Respondent No.2, who
was present, argued as a party in-person and canvassed all
possible contentions in opposition to the transfer petitions.
The first ground urged by the learned counsel for the
petitioner is that if the petitioner has to go to Rampur to
attend the proceedings in the Court of Chief Judicial
Magistrate, her safety would be in danger or she apprehends
physical harm to her from respondent No.2 or anti-social
elements. In our view, this is too nebulous a ground for
transferring the cases from the Court of Chief Judicial
Magistrate, Rampur, to the Court of competent jurisdiction at
Delhi or Chandigarh. The petitioner has not substantiated her
apprehension of threat or bodily harm or intimidation from
respondent No. 2 or other anti-social elements as alleged by
her. She has been going to Rampur in the past and attended
the court proceedings before Magistrate and Collector but no
untoward incident was ever brought to the notice of the police
or the Chief Judicial Magistrate by her against respondent
No.2 If the petitioner fears any sort of threat to her life, she
can report the matter to the police or the Court who, in its
turn, can after considering the needs of the situation, pass
orders according to law including appropriate directions for
police protection.
The next plea of illness of the petitioner is not supported
by medical evidence. The petitioner has been travelling all the
way from USA to India and going to Rampur to look after the
landed property of her husband and daughter as their
Attorney. She has been going and attending the cases in the
High Court of Judicature at Allahabad and in the civil court at
Delhi pending inter se the petitioner and respondent No.2.
The petitioner and respondent No.2, both practically seem to
be of the same age group. The petitioner has also filed
criminal case against respondent No.2 at Chandigarh and he
has been attending the proceedings of the said case going all
the way from Rampur and covering a distance of about 500
kms. as averred by him in his counter affidavit.
The petitioner is a person of means and it will not be
difficult for her to attend the hearing of the criminal cases
pending in the Court of Chief Judicial Magistrate, Rampur.
The comparative inconvenience of the litigant parties are not
the only criterion for transferring the cases from one State to
another State, but the Court has to visualize the comparative
inconvenience and hardships likely to be caused to the
witnesses besides the burden to be borne by the State
Exchequer in making payment of travelling and other
expenses of the official and non-official witnesses who will
have to travel by train from Rampur to Delhi or Chandigarh,
as the case may be, for attending the court proceedings if the
cases are ordered to be transferred to transferee court. During
the course of the hearing of these petitions, we are told that
the distance between Rampur and Delhi is about 400-500
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kms. We cannot loose sight of one more factor viz., that the
criminal courts situated at Delhi or Chandigarh are already
over-burdened with the pendency of the cases and it would not
be in the interest of the litigating parties as well as in the
interest of justice to add more cases to the dockets of the
transferee courts to keep the trial of those cases pending for
decades. In the circumstances, on the basis of vague and
unfounded allegations made by the petitioner in the transfer
applications against the respondent, we are not persuaded to
accept the prayer of the petitioner for transferring the trial of
Case Nos.3045/2004 and 1434/2004 pending in the Court of
Chief Judicial Magistrate, Rampur, Uttar Pradesh, either to
the Court of Chief Metropolitan Magistrate, Tis Hazari Courts,
Delhi, or to the Court of Chief Judicial Magistrate,
Chandigarh.
In the result, for the above-said reasons, these transfer
petitions are dismissed accordingly.
Special Leave Petition (Crl.) No.6163 of 2004:
This Special Leave Petition has been filed by the
petitioner against the order dated 23rd November, 2004
recorded by the learned Single Judge of the High Court of
Judicature at Allahabad in Criminal Miscellaneous Application
No. 4290/2004 whereby and whereunder the petitioner Smt.
Parminder Kaur has been directed to deposit the passport in
terms of the order dated 24th December, 2003 within a week
from the date of the order in the trial court.
The petitioner was granted bail by the Additional
Sessions Judge, Fast Track Court No.2, Rampur, Uttar
Pradesh vide order dated 24th December, 2003, on the
conditions that she will not leave India till the conclusion of
the proceedings in Case Crime No.390 of 2003 pending in the
Court of Chief Judicial Magistrate, Rampur, Uttar Pradesh,
under Sections 466, 468, 420 IPC pertaining to P.S. Bilaspur,
District Rampur. The passport of the petitioner was also got
deposited. The petitioner filed Criminal Miscellaneous
Application No. 4290 of 2004 in the High Court of Judicature
at Allahabad inter alia praying that the conditions so imposed
by the court below may be removed so as to enable her to
attend her old and ailing husband who is getting medical
treatment in USA under the care of his daughters. The High
Court vide order dated 03rd June, 2004, was pleased to
suspend the operation of conditions so imposed for the period
of two months and directed the release of passport of the
petitioner. On 0th August, 2004, three weeks’ further time was
extended and the said period had expired on 27th August,
2004, when it was obligatory and mandatory for the petitioner
to have deposited the passport as per the order of the Court.
It appears that respondent No.2 herein moved the
Criminal Miscellaneous Clarification Application No.204282 of
2004 in the High Court of Judicature at Allahabad with a
prayer that as the petitioner has not complied with the order
of the court, she be directed to deposit the passport and
necessary consequential action shall be taken against her.
The learned Single Judge of the High Court observed in the
order dated 23rd November, 2004, impugned in this petition,
as under:
"\005. Since the applicant is an old and
ailing lady of 75 years age it appears that
under some misunderstanding, she could
not deposit the passport. So I am not
inclined to pass any adverse order
against her. She is directed to deposit
the passport in the trial court within a
week from today.
With these observations, the modification
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application is disposed of."
It is this order which is under challenge before us.
During the hearing of the Special Leave Petition, the
learned counsel for the petitioner, on instructions, submitted
before us that the petitioner has complied with the directions
of the learned Single Judge dated 23rd November, 2004, and
deposited her passport in the trial court within the stipulated
period.
In view of the subsequent development, this Special
Leave Petition does not survive and it stands disposed of
having rendered infructuous.