The safety of a woman is valid grounds for the transfer of a criminal case: High Court of Uttarakhand
It is a widely accepted legal maxim that justice must not only be done, but also be seen to be done. In any case where hearing of a criminal case at a particular court would compromise of the safety or security of a woman, it would be unacceptable and in violation of the above maxim. This was covered in a judgement passed by the single member bench of the High Court of Uttarakhand consisting of Jusitce Alok Kumar Varma in the case of Shilpi Lawrence Elenjikal v the State of Uttarakhand and another [Transfer Application no: 2 of 2021] on the 28th of May 2021. A transfer application was filed by the applicant Ms Shilpi Lawrence Elenjikal seeking for the transfer of State vs. Parikshit Arvind Joshi [Criminal Case No.1185 of 2019] which is pending before the court of the Additional Chief Judicial Magistrate, Kotdwar, District Pauri Garhwal to Chief Judicial Magistrate, Udham Singh Nagar. The applicant contended that she apprehends a threat to her life and fears prejudice in the conducting of her case in the court of Additional Chief Judicial Magistrate, Kotdwar, District Pauri Garhwal and hence pleaded for the case to be transferred under Section 407 of the Code of Criminal Procedure, 1973. The applicant also brought to the notice of the court that the honourable Supreme Court on 29th November 2019 had directed the respondent no:2 refrain from attempting any contact with the applicant and had on 23rd November 2020 called for the transfer of Sessions Trial no: 21 of 2019 from court of the Additional Sessions Judge, Haridwar to the court of the Additional Sessions Judge, Udham Singh Nagar.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA TRANSFER APPLICATION NO.21 28TH MAY 2021 Between: Ms. Shilpi Lawrence Elenjikal and State of Uttarakhand and another …Respondents …Applicant Hon’ble Alok Kumar Verma J. This transfer application is filed under Section 407 of the Code of Criminal Procedure 1973 seeking transfer of Criminal Case No.1185 of 2019 “State vs. Parikshit Arvind Joshi” under Sections 354 D (ii) 506 and 509 of I.P.C. pending before the court of the Additional Chief Judicial Magistrate Kotdwar District Pauri Garhwal to the court of the Chief Judicial Magistrate Udham Singh Nagar or to the court of the Chief Judicial Magistrate Nainital. Notice is personally served on Parikshit Arvind Joshi the respondent No.2 but he is not present. Heard Ms. Shilpi Lawrence Elenjikal applicant in person and Mr. P.S. Uniyal the learned Brief Holder for the State the respondent no.1 through video Ms. Shilpi Lawrence Elenjikal the applicant in person submitted that she apprehends threat to her life and will be prejudiced in conducting her case in the court of Additional Chief Judicial Magistrate Kotdwar District Pauri Garhwal. She submitted that the Hon’ble Supreme Court in Special Leave Petition No.6146 of 2019 vide order dated 29.11.2019 had specifically directed the respondent No.2 to desist from attempting to maintain any form of contact with the applicant and the Hon’ble Supreme Court by order dated 23.09.2020 transferred the Sessions Trial No.21 of 2019 from the court of the Additional Sessions Judge Haridwar to the court of the Additional Sessions Judge Udham Singh Nagar. In these circumstances the applicant in person requested to transfer the Criminal Case No.11819 “State vs. Parikshit Arvind Joshi” from the court of the Additional Chief Judicial Magistrate Kotdwar District Pauri Garhwal to the court of the Chief Judicial Magistrate Udham Singh Nagar. Mr. P.S. Uniyal the learned Brief Holder for the State submitted that the State has no objection. In the matter of transfer the general principle that justice must not only be done but must also be seen to be done should be taken into consideration. The applicant shows that her apprehension is reasonable and it is not merely imaginary. In Sesamma Phillip vs. P. Phillip 1 SCC 405 the Hon’b’le Supreme Court transferred a criminal case on the ground of safety of the woman petitioner. The Hon’ble Supreme Court transferred the Sessions Trial No.21 of 2019 from the court of the Additional Sessions Judge Haridwar to the court of the Additional Sessions Judge Udham Singh Nagar. Therefore in view of the above facts and circumstances of the case the transfer application No.2 of 2021 is allowed. Criminal Case No.1185 of 2019 “State vs. Parikshit Arvind Joshi” which is pending before the court of the Additional Chief Judicial Magistrate Kotdwar District Pauri Garhwal is transferred to the court of the Chief Judicial Magistrate Udham Singh Nagar. The record of the case shall be forthwith transferred to the transferee court which shall take up the matter and shall dispose of the same according to law as expeditiously as possible. 10. A certified copy of this order be sent to the court of the Additional Chief Judicial Magistrate Kotdwar District Pauri Garhwal and to the court of the Chief Judicial Magistrate Udham Singh Nagar for necessary compliance. ALOK KUMAR VERMA J. Dt: 28th May 2021 JKJ Pant 