Review of Criminal Case Transfer: Supreme Court Reinstates Delhi Trial
The Supreme Court of India, in the case of Rajendra Khare vs. Swati Nirkhi & Ors., addressed a significant issue regarding the transfer of a criminal trial from Delhi to Allahabad. The Court reviewed its previous order and reinstated the trial in Delhi, emphasizing the principles of fair hearing and natural justice.
Background of the Case
The dispute originated from an FIR (No. 39/2016) filed by the petitioner, Rajendra Khare, at Mangol Puri Police Station in Delhi, under Sections 389/34 of the Indian Penal Code. The charge sheet was filed, and the trial commenced before the Metropolitan Magistrate in Rohini, Delhi.
However, respondents Swati Nirkhi and others sought a transfer of the trial from Delhi to Allahabad under Section 406 of the Criminal Procedure Code. They argued that conducting the trial in Delhi was prejudicial to them. The Supreme Court granted the transfer on May 18, 2018, without issuing notice to the petitioner.
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Feeling aggrieved, Rajendra Khare filed a review petition seeking reconsideration of the transfer order.
Key Legal Issues Addressed
1. Whether the Transfer Order Violated Principles of Natural Justice
The petitioner argued that he was not impleaded as a respondent in the transfer petition, which denied him an opportunity to contest the request. He contended:
“The review petitioner was not made a party in the transfer petition, thereby depriving him of his right to be heard.”
2. Whether the Supreme Court’s Order Was Passed Without Following Proper Procedure
The petitioner contended that the transfer order was passed without issuing notice, which violated Order XXXIX Rule 2 of the Supreme Court Rules, 2013. The relevant provision states:
“Upon hearing the Court, if satisfied that a prima facie case for granting the petition is made out, it shall direct that notice be issued to the respondent.”
3. Whether the Transfer Would Cause Prejudice to the Prosecution
The petitioner highlighted that out of 24 witnesses, 21 were based in Delhi, making it impractical to conduct the trial in Allahabad. He argued:
“Transferring the trial to Allahabad would create unnecessary delays and inconvenience to witnesses.”
4. Whether a Review Petition Was Maintainable After a Miscellaneous Application (M.A.) Was Rejected
The respondents opposed the review petition, stating that the petitioner had previously filed an M.A. to recall the transfer order, which was dismissed on June 5, 2018. However, the petitioner contended:
“A review petition under Article 137 of the Constitution is a distinct remedy, and its maintainability is not barred by the dismissal of an M.A.”
Supreme Court’s Findings
1. Violation of Natural Justice
The Supreme Court acknowledged that the petitioner was not impleaded in the transfer petition, which denied him an opportunity to present his case. The judgment stated:
“The order dated 18.05.2018 was passed without issuing notice to the review petitioner, which is a clear violation of principles of natural justice.”
2. Procedural Irregularities in the Transfer Order
The Court found that the transfer petition was decided at the preliminary hearing without issuing notice, contrary to the prescribed Supreme Court rules. It observed:
“An order affecting the rights of a party cannot be passed ex parte without following due procedure.”
3. Transfer Would Cause Prejudice to the Prosecution
The Court agreed with the petitioner’s argument that shifting the trial to Allahabad would create logistical challenges. It noted:
“With 21 out of 24 witnesses based in Delhi, the transfer would lead to unnecessary hardship and procedural delays.”
4. Maintainability of the Review Petition
The Supreme Court held that a review petition is distinct from a miscellaneous application and can be entertained if an error is apparent on the face of the record. The judgment stated:
“A review petition under Article 137 is maintainable if there is a glaring omission or a patent mistake in the original judgment.”
Supreme Court’s Verdict
- The review petition was allowed.
- The transfer order dated May 18, 2018, was recalled.
- The trial was reinstated in Delhi before the Metropolitan Magistrate, Rohini.
- The petitioner was impleaded as a respondent in the revived transfer petition.
- One week was granted to the parties to file counter-affidavits.
- The transfer petition was listed for hearing on February 12, 2021.
Conclusion
This judgment reinforces the principles of procedural fairness and natural justice in transfer petitions. Key takeaways include:
- Transfer of criminal cases must follow due process, including issuing notice to all affected parties.
- A review petition is maintainable when there is an apparent error in the original order.
- Trial location should be determined based on witness convenience and judicial efficiency.
- Ex parte transfer orders that prejudice the prosecution can be set aside upon review.
By reinstating the trial in Delhi, the Supreme Court has ensured that procedural safeguards are upheld and that trials are conducted in a manner that best serves justice.
Petitioner Name: Rajendra Khare.Respondent Name: Swati Nirkhi & Ors..Judgment By: Justice Ashok Bhushan, Justice Indu Malhotra.Place Of Incident: Delhi.Judgment Date: 28-01-2021.
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