SWAATI NIRKHI & ORS.versusSTATE (NCT OF DELHI) & ORS.

                          [2021] 2 S.C.R. 905


                      SWAATI NIRKHI & ORS.
                                   v.
                 STATE (NCT OF DELHI) & ORS.
              (Transfer Petition (Crl.) No. 262 of 2018)
                          MARCH 09, 2021
     [ASHOK BHUSHAN AND INDU MALHOTRA, JJ.]
       Code of Criminal Procedure, 1973 – ss.406, 177 – Trial
pending in Delhi – Transfer petition seeking transfer to Prayagraj,
U.P. – Allowed ex-parte – Complainant filed application for recall
thereof – Dismissed – Review Petition – Allowed, ex-parte order
recalled – Complainant impleaded as respondent no.4 in the transfer
petition – De-novo hearing – Held: In a criminal case, the place of
inquiry and trial has to be by the Court within whose local
jurisdiction, the crime was allegedly committed as provided by s.177
– In the present case, cause of action as per the averments in the
FIR are alleged to have arisen in New Delhi, where the matrimonial
home of the Petitioner is situated – A criminal case ought to be
inquired and tried ordinarily where the cause of action has accrued
– Further, most of the prosecution witnesses are situated in Delhi –
12 official witnesses are serving in New Delhi – If the transfer petition
is allowed, they would be required to travel from New Delhi to
Prayagraj causing hinderance in performing their official duties –
Transfer petition dismissed – Penal Code, 1860 – s.389 r/w s.34.
      Dismissing the transfer petition, the Court
      Held: 1.1 In a criminal case, the place of inquiry and trial
has to be by the Court within whose local jurisdiction, the crime
was allegedly committed as provided by Section 177 of Cr.P.C.
The cause of action as per the averments in the FIR are alleged
to have arisen in New Delhi, where the matrimonial home of the
Petitioner is situated. A criminal case ought to be inquired and
tried ordinarily where the cause of action has accrued. In the
present case, most of the prosecution witnesses are situated in
Delhi. 12 official witnesses are serving in New Delhi. If the
Transfer Petition is allowed, they would be required to travel
from New Delhi to Allahabad (Prayagraj), which would cause

                                  905
906           SUPREME COURT REPORTS                    [2021] 2 S.C.R.


A     hinderance in performing their official duties. The Transfer
      Petition is dismissed. The proceedings arising out of FIR No. 39
      of 2016 which were transferred to the Court of Metropolitan
      Magistrate at Allahabad (Prayagraj), Uttar Pradesh are directed
      to be transferred back to the Court of Metropolitan Magistrate
      461 North West, Rohini Courts, New Delhi. [Paras 14-16, 19]
B
      [911-A, B-C; 913-B-C; 914-C-D]
           Ramesh v. State of T.N. (2005) 3 SCC 507 : [2005] 2
            SCR 493; Manish Ratan v. State of M.P (2007)1 SCC
           262: [2006] 8 Suppl. SCR 226; Bhura Ram v. State of
           Rajasthan (2008) 11 SCC 103; Rajiv Modi v. Sanjay
C          Jain (2009) 13 SCC 241 : [2009] 11 SCR 34; Sunita
           Kumari Kashyap v. State of Bihar (2011) 11 SCC 301;
           Amarendu Jyoti vs. State of Chattisgarh (2014) 12 SCC
           362 : [2014] 13 SCR 1079; Babita Lila and Ors. vs.
           Union of India (UOI) (2016) 9 SCC 647 : [2016] 7
D          SCR 604; Rupali Devi vs. State of Uttar Pradesh and
           Ors. (2019) 5 SCC 384 : [2019] 6 SCR 577 ; Rhea
           Chakraborty vs. State of Bihar and Ors. 2020 SCC
           OnLine SC 654; Abraham Ajith v. Inspector of Police
           (2004) 8 SCC 100 : [2004] 3 Suppl. SCR 604 ; Harita
           Sunil Parab v. State (NCT of Delhi) (2018) 6 SCC
E          358 : [2018] 3 SCR 732 – relied on.
                           Case Law Reference
           [2005] 2 SCR 493             relied on        Para 15
           [2006] 8 Suppl. SCR 226      relied on        Para 15
F
           (2008) 11 SCC 103            relied on        Para 15
           [2009] 11 SCR 34             relied on        Para 15
           (2011) 11 SCC 301            relied on        Para 15
           [2014] 13 SCR 1079           relied on        Para 15
G
           [2016] 7 SCR 604             relied on        Para 15
           [2019] 6 SCR 577             relied on        Para 15
           [2004] 3 Suppl. SCR 604      relied on        Para 15
           [2018] 3 SCR 732             relied on        Para 15
H
             SWAATI NIRKHI v. STATE (NCT OF DELHI)                              907


       CRIMINAL ORIGINAL JURISDICTION: Transfer Petition                        A
(Crl.) No. 262 of 2018.
      Petitions Filed Under Section 406 of Cr.P.C. for Transfer of
Criminal Case No. 0003483 of 2017 arising out of FIR No. 39 of 2016
dated 07.01.2016.
      Rahul Shyam Bhandari, Adv. for the Petitioners                            B
      Kaustubh Shukla, Adv. for the respondents.
      Respondent-in-person
      The Judgment of the Court was delivered by
      INDU MALHOTRA, J.                                                         C
      1. The present Transfer Petition has been filed by the Petitioner
under Section 406 Cr.P.C. seeking transfer of Criminal Case No. 3483
of 2017 titled as State v. Swaati Nirkhi & Ors. (arising out of FIR No.
39/2016) from the Court of Metropolitan Magistrate 461 North West,
Rohini Courts, New Delhi to the Court of Metropolitan Magistrate at             D
Allahabad (Prayagraj), Uttar Pradesh.
       2. The Respondent No.4 herein/Complainant filed FIR No. 39 on
7.1.2016 before the Police Station, Mangol Puri under Section 389 read
with 34 IPC against 4 accused viz. Mr. Mohan Shrivastava, Ms. Swaati
Saxena, Sanjay Saxena, Shashank Saxena wherein it was stated that his
nephew Ashish Khare was married to Ms. Swaati Nirkhi (Petitioner                E
No.1 in the Transfer Petition) on 19th April 2015 in Delhi. That on 7.8.2015,
Swaati Nirkhi left for her parental home in Allahabad, and did not return
thereafter, even though she was requested to come back by the family.
On 25.11.2015, the Complainant received a message from one Mohan
Srivastava alias Akahauri Onkar Nath (Respondent No.2 in the T.P)               F
that Ms. Swaati Nirkhi would not like to come back to Delhi, and the
matter could be settled by paying Rs. 5 crores. On 25.11.2015, 3 persons
visited the house of the Complainant, and left a message with his driver
and domestic help that the Complainant must pay Rs. 5 Crore to Mohan
Srivastava.
                                                                                G
       On 6.12.2015, the Complainant stated that it was learnt from the
newspaper reports and T.V. media report that Ms. Swaati Nirkhi had
falsely alleged that she was gang raped on 4.11.2015 at 9 p.m. in the
house of the Respondent No.4, by Respondent No.4 and his nephews-
Abhishek and Ashish, with the assistance of his wife- Smt. Heema Khare.
It was also stated that he had received messages to pay Rs. 5 Crore             H
908            SUPREME COURT REPORTS                          [2021] 2 S.C.R.


A     otherwise he would be arrested on the ground of gang rape. On 7.1.2016,
      at 11.13 a.m. he received a call from a person who identified himself as
      Mohan Srivastava to pay payment of Rs. 5 crore urgently. The 1st
      instalment could be paid to Swaati Nirkhi, Shashank Saxena and Sanjay
      Saxena at Delhi in 2 days of Rs. 2.5 Crore. The Complainant has submitted
      that he was warned not to get in touch with the police, otherwise he
B     would be required to face dire consequences. The complainant stated
      that he had kept the SHO informed of the subject matter since 10.12.2015
      through his Complaints. He stated that his driver Sushil Kumar had
      informed him of the plan of Mohan Srivastava, Swaati Nirkhi, Sanjay
      Saxena and Shashank Saxena to get the entire family arrested, and then
C     occupy his property worth 10 to 15 crore. It was further alleged that the
      Accused had sought to allure the driver of Respondent No.4 by offering
      a flat to him.
              It was requested that a criminal case be registered against Mr.
      Mohan Srivastava, Ms. Swaati Nirkhi, Mr. Sanjay Saxena and Shashank
      Saxena.
D
              3. Pursuant to the registration of the FIR, a Charge Sheet was
      filed on 29.6.2017 in the Court of Metropolitan Magistrate, Rohini Court,
      Delhi against Accused No.1- Swaati Nirkhi, Accused No.2- Sanjay
      Saxena, Accused No.3- Shashank Saxena, Accused No.4- Mohan
      Srivastava @Akahauri Onkar Nath, and Accused No.5- Jugal Kishore
E     Yadav under Section 389, 419, 506, 120B and 34 IPC. A list of 23 witnesses
      was mentioned in the Charge Sheet, out of which 16 were official
      witnesses, and 7 were non-official witnesses.
              4. On 28.11.2017, the Metropolitan Magistrate, 461, Rohini Court,
      Delhi took cognisance, and issued summons to the Accused persons.
F             5. In the meanwhile, the Accused Ms. Swaati Nirkhi, Mr. Sanjay
      Saxena and Shashank Saxena filed the present Transfer Petition (Crl.)
      No.262 of 2018 before this Court, praying that the trial of Criminal No.
      3483 of 2017 titled as State v. Swaati Nirkhi and Ors. arising out of FIR
      No. 39/2016 pending before the Court of the Metropolitan Magistrate,
      North West, Rohini Courts, New Delhi be transferred to the Ld.
G     Metropolitan Magistrate at Allahabad (Prayagraj) U.P.
              6. This Court vide ex-parte Order dated 18.5.2018 allowed the
      Transfer Petition and directed that the criminal proceedings in the afore-
      mentioned case shall stand transferred to the Court of Metropolitan
      Magistrate at Allahabad, U.P from the Court of Metropolitan Magistrate,
H     461, Rohini Court, Delhi.
             SWAATI NIRKHI v. STATE (NCT OF DELHI)                              909
                    [INDU MALHOTRA, J.]

      Since the Order was being passed ex-parte, it was left open to            A
the Respondents to approach this Court, if they were aggrieved by the
same.
       7. The Complainant in the FIR i.e. Respondent No.4 in the Transfer
Petition filed M.A. No. 1589 of 2018 praying for recall of the Order
dated. 18.5.2018 passed by this Court in T.P. No (Crl.) 262 of 2018.            B
      The said M.A was dismissed vide Order dated. 5.6.2018.
      8. The Respondent No.4 then filed Review Petition (Crl.) No.
671 of 2018 praying for Review of the Orders dated 18.5.2018 and
5.6.2018 passed by this Court.
                                                                                C
      This Court issued Notice in the Review Petition vide Order dated
24.10.2018, and ordered hearing in open Court.
     9. After hearing the parties at length, this Court vide detailed
Judgment dated 28.1.2021 allowed the Review Petition, and recalled the
Order dated 18.5.2018. It was directed that the Review Petitioner/              D
Complainant be impleaded as Respondent No.4 in the Transfer Petition.
The Transfer Petition was then taken up for de novo hearing.
      10. We have heard the Counsel for the parties at length, and
perused the affidavits filed.
       The Petitioners have inter alia submitted that the Transfer Petition     E
ought to be allowed since there are 9 cases pending between the parties
in Allahabad, out of which 6 cases have been filed by the Respondent
No.4, and 3 cases have been filed by the Petitioner No.1. Since the
Respondent No.4 was prosecuting the 6 cases filed by him in Allahabad,
and that no inconvenience would be caused if the proceedings arising
out of the FIR in the present case, were tried by the Court of the              F
Metropolitan Magistrate at Allahabad.
       It was further submitted that if the Petitioners were compelled to
defend themselves in the proceedings at Delhi, it would be financially
burdensome on them. However, while the Complainant and his family
members who are a well to do family, would not be subject to any hardship       G
or inconvenience.
       It was further submitted that the Petitioner No.1, due to the physical
and mental assault and harassment suffered by her, was not able to
work and earn her livelihood. Furthermore, her father i.e. Petitioner No.2
is a senior citizen suffering from various ailments and diseases.               H
910             SUPREME COURT REPORTS                           [2021] 2 S.C.R.


A           In these circumstances it was pleaded that the proceedings in the
      criminal case may not be transferred back from Allahabad to Delhi.
             11. Respondent No.2 who has been named as co-accused in the
      FIR, has supported the case of the Petitioners. It has been submitted
      that he is discharging a public function as Deputy Mayor in Gaya, Bihar.
B     It would be inconvenient for him to undertake such a long journey from
      Gaya to Delhi, as it would impinge on his time to discharge his public
      functions.
            12. Respondent No.3 has submitted that he was not named in the
      FIR, but was added in the Charge Sheet as an accused on the basis of
C     hearsay evidence. The prosecution of the case in Allahabad would be
      convenient for him to defend the baseless allegations made by Respondent
      No.4 against him.
             13. The Transfer Petition was seriously opposed by Respondent
      No.4 on the ground that the allegations mentioned in the present FIR
D     related to incidents which had occurred in New Delhi. Since no cause of
      action had taken place in Allahabad, the proceedings must be tried by
      the Court of competent jurisdiction in New Delhi.
            It was further submitted that out of the 23 witnesses, 12 official
      witnesses are situated in New Delhi. If the case is transferred out of
E     Delhi, it would impinge upon their official work, since they would be
      required to travel to Allahabad in these proceedings.
              With respect to the cases filed by the present Petitioner in
      Allahabad, no incriminating material has been found against the
      Respondent No.4 in the FIRs instituted in State of U.P., even after being
F     investigated several times by the Allahabad Police, Crime Branch
      Allahabad, and DSP Level Gazetted Lady Police Officer. It was further
      submitted that the Petitioner No.1 herself had instituted 13 cases in Courts
      in Delhi, Allahabad and before this Court, which she has prosecuted
      without expressing any difficulty, and there is no reason why an exception
      should be made in the present case.
G
            It was further submitted that the Petitioners in the T.P have not
      appeared before the Metropolitan Magistrate, Allahabad in 36 hearings
      from 9.7.2018 to 7.12.2020, even after the case was transferred to
      Allahabad (Prayagraj). The Transfer Petition was only a ruse to stall the
      proceedings in the present case.
H
             SWAATI NIRKHI v. STATE (NCT OF DELHI)                              911
                    [INDU MALHOTRA, J.]

     14. In a criminal case, the place of inquiry and trial has to be by        A
the Court within whose local jurisdiction, the crime was allegedly
committed as provided by Section 177 of Cr.P.C.
       “177. Ordinary place of inquiry and trial. Every offence shall
       ordinarily be inquired into and tried by a Court within whose local
       jurisdiction it was committed.”                                          B
       15. The cause of action as per the averments in the FIR are
alleged to have arisen in New Delhi, where the matrimonial home of the
Petitioner is situated.
      This court has consistently held that a criminal case ought to be
inquired and tried ordinarily where the cause of action has accrued 1           C

       In Abraham Ajith v. Inspector of Police2, this Court held that :
              “12. The crucial question is whether any part of the cause
       of action arose within the jurisdiction of the court concerned. In
       terms of Section 177 of the Code, it is the place where the offence      D
       was committed. In essence it is the cause of action for initiation
       of the proceedings against the accused.
              13. While in civil cases, normally the expression “cause of
       action” is used, in criminal cases as stated in Section 177 of the
       Code, reference is to the local jurisdiction where the offence is
                                                                                E
       committed. These variations in etymological expression do not
       really make the position different. The expression “cause of action”
       is, therefore, not a stranger to criminal cases.
              14. It is settled law that cause of action consists of a bundle
       of facts, which give cause to enforce the legal inquiry for redress
                                                                                F
       in a court of law. In other words, it is a bundle of facts, which
       taken with the law applicable to them, gives the allegedly affected
       party a right to claim relief against the opponent. It must include
1
  Ramesh v. State of T.N., (2005) 3 SCC 507,
  Manish Ratan v. State of M.P (2007) 1 SCC 262
  Bhura Ram v. State of Rajasthan, (2008) 11 SCC 103                            G
  Rajiv Modi v. Sanjay Jain, (2009) 13 SCC 241
  Sunita Kumari Kashyap v. State of Bihar, (2011) 11 SCC 301
  Amarendu Jyoti vs. State of Chattisgarh (2014) 12 SCC 362
  Babita Lila and Ors. vs. Union of India (UOI) (2016) 9 SCC 647
  Rupali Devi vs. State of Uttar Pradesh and Ors. (2019) 5 SCC 384
  Rhea Chakraborty vs. State of Bihar and Ors. 2020 SCC OnLine SC 654
2
  (2004) 8 SCC 100                                                              H
912      SUPREME COURT REPORTS                              [2021] 2 S.C.R.


A     some act done by the latter since in the absence of such an act no
      cause of action would possibly accrue or would arise.
             15. The expression “cause of action” has acquired a
      judicially settled meaning. In the restricted sense cause of action
      means the circumstances forming the infraction of the right or the
B     immediate occasion for the action. In the wider sense, it means
      the necessary conditions for the maintenance of the proceeding
      including not only the alleged infraction, but also the infraction
      coupled with the right itself. Compendiously, the expression means
      every fact, which it would be necessary for the complainant to
      prove, if traversed, in order to support his right or grievance to the
C     judgment of the court. Every fact, which is necessary to be proved,
      as distinguished from every piece of evidence, which is necessary
      to prove such fact, comprises in “cause of action”.
            16. The expression “cause of action” has sometimes been
      employed to convey the restricted idea of facts or circumstances
D     which constitute either the infringement or the basis of a right and
      no more. In a wider and more comprehensive sense, it has been
      used to denote the whole bundle of material facts.
              17. The expression “cause of action” is generally
      understood to mean a situation or state of facts that entitles a
E     party to maintain an action in a court or a tribunal; a group of
      operative facts giving rise to one or more bases for sitting; a factual
      situation that entitles one person to obtain a remedy in court from
      another person. In Black’s Law Dictionary a “cause of action”
      is stated to be the entire set of facts that gives rise to an enforceable
F     claim; the phrase comprises every fact, which, if traversed, the
      plaintiff must prove in order to obtain judgment. In Words and
      Phrases (4th Edn.), the meaning attributed to the phrase “cause
      of action” in common legal parlance is existence of those facts,
      which give a party a right to judicial interference on his behalf.

G            18. In Halsbury’s Laws of England (4th Edn.) it has been
      stated as follows:
             “ ‘Cause of action’ has been defined as meaning simply a
      factual situation, the existence of which entitles one person to
      obtain from the court a remedy against another person. The phrase
      has been held from earliest time to include every fact which is
H
                SWAATI NIRKHI v. STATE (NCT OF DELHI)                            913
                       [INDU MALHOTRA, J.]

         material to be proved to entitle the plaintiff to succeed, and every    A
         fact which a defendant would have a right to traverse. ‘Cause of
         action’ has also been taken to mean that a particular act on the
         part of the defendant which gives the plaintiff his cause of
         complaint, or the subject-matter of grievance founding the action,
         not merely the technical cause of action.”
                                                                                 B
       16. In the present case, we find that most of the prosecution
witnesses are situated in Delhi. That 12 official witnesses are serving in
New Delhi. If the Transfer Petition is allowed, they would be required to
travel from New Delhi to Allahabad (Prayagraj), which would cause
hinderance in performing their official duties.
                                                                                 C
       17. The alleged apprehension of the Petitioners and Respondent
No.2 and 3 do not constitute any exceptional circumstances for
transferring the criminal case from Delhi to Allahabad (Prayagraj).
                A three judge bench of this Court in Harita Sunil Parab v.
         State (NCT of Delhi)3, held that :                                      D
                “8. 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. 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.               E
         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. The convenience of the parties does     F
         not mean the convenience of the petitioner alone who approaches
         the court on misconceived notions of apprehension. Convenience
         for the purposes of transfer means the convenience of the
         prosecution, other accused, the witnesses and the larger interest
         of the society. The charge-sheet in FIR No. 351 of 2016 reveals         G
         that of the 40 witnesses, the petitioner alone is from Mumbai, two
         are from Ghaziabad, and one is from Noida. The charge-sheet of
         FIR No. 1742 of 2016 is not on record. A reasonable presumption
         can be drawn that the position would be similar in the same also.
3
    (2018) 6 SCC 358                                                             H
914               SUPREME COURT REPORTS                          [2021] 2 S.C.R.


A                     9. In Mrudul       M.      Damle v. CBI [Mrudul            M.
               Damle v. CBI4, it was noticed that early conclusion of the trial
               becomes much more difficult involving more expenses for the
               prosecution by it having to bear travelling expenses of official and
               non-official witnesses and all of which ultimately causes the trial
               to linger on for years.”
B
             18. The counsel for the Petitioner at the conclusion of hearing in
      the present transfer petition made a prayer for continuation of Interim
      Bail from arrest, which was granted by the High Court of Allahabad
      pursuant to the Order passed in the Transfer Petition.
C           It would be open for the Petitioner to move the appropriate Court
      in New Delhi for interim relief after the proceedings are transferred.
            19. In view of the discussion above, the Transfer Petition is
      dismissed.
             The proceedings arising out of FIR No. 39 of 2016 which were
D     transferred to the Court of Metropolitan Magistrate at Allahabad
      (Prayagraj), Uttar Pradesh are directed to be transferred back to the
      Court of Metropolitan Magistrate 461 North West, Rohini Courts, New
      Delhi.
            20. The Registry is directed to transmit a copy of this Order to the
E     Courts of the Metropolitan Magistrate at Allahabad (Prayagraj), Uttar
      Pradesh and the Metropolitan Magistrate 461 North West, Rohini Courts,
      New Delhi.
             Parties are directed to appear before Court of Metropolitan
      Magistrate 461 North West, Rohini Courts, New Delhi on 15 th April,
F     2021.
               There will be no Order as to costs.
               Pending Applications, if any, are accordingly disposed of.


G     Divya Pandey                                                 Petition dismissed.




      4
H         (2012) 5 SCC 706