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Swaati Nirkhi & Ors. v. State (NCT of Delhi) & Ors.

Transfer Petition (Criminal) · 2021 INSC 171Decided 9 Mar 2021
Transfer Petition (Criminal) No. 262 of 2018
Justice Ashok Bhushan · Justice Indu Malhotra

Background

An FIR was registered in Delhi alleging that Swaati Nirkhi and her relatives, along with others, threatened and extorted the complainant (her estranged husband's uncle) for Rs. 5 crore, and that Nirkhi falsely alleged she had been gang-raped. After a charge sheet was filed and the Delhi Magistrate took cognizance, the accused sought to have the trial transferred from Delhi to Allahabad, citing inconvenience and other pending litigation between the parties there. An earlier ex-parte order of this Court in 2018 had allowed the transfer to Allahabad, but that order was later recalled on a review petition filed by the complainant, and the transfer plea was reheard afresh.

Decision Breakdown

The Court reiterated the settled rule under Section 177 CrPC that a criminal case should ordinarily be tried where the offence is alleged to have occurred: here, New Delhi, where the alleged extortion and matrimonial events took place. It found that 12 of the prosecution's 23 witnesses were officially based in Delhi and would be seriously inconvenienced by a transfer to Allahabad, whereas the accused's claimed hardships (financial burden, family health issues) did not amount to the kind of reasonable, non-imaginary apprehension of an unfair trial required to justify transfer. It also noted the accused had skipped 36 hearings in Allahabad after the earlier transfer, suggesting the petition was being used to stall proceedings. The transfer petition was dismissed, and the case was ordered transferred back to the Rohini Courts, Delhi.

Lesson Learnt

A transfer of a criminal trial is an exceptional remedy: convenience of the accused alone, without a genuine and reasonable apprehension of an unfair trial, cannot override the ordinary rule that a case is tried where the alleged offence occurred and where most witnesses are located.

Official source (sci.gov.in)View Judgment (PDF)

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