Page No.# 1/8 GAHC010070532024 2025:GAU-AS:585 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Tr.P.(Crl.)/9/2023 UTPAL JYOTI SUT AND ANR SON OF SRI DANDADHAR SUT RESIDENT OF AMONI NO. 4 AMLOKI P.S.- SAMAGURI DIST. NAGAON (ASSAM). 2: DIPAMONI SUT WIFE OF SRI DANDADHAR SUT RESIDENT OF AMONI NO. 4 AMLOKI P.S.- SAMAGURI DIST. NAGAON (ASSAM). VERSUS KEWELO U KROME DAUGHTER OF LT. HESHU KROME RESIDENT OF HOUSE NO. 15(B) SEITHEKE BASA CHUMUKEDIMA NAGALAND. ------------ Advocate for : MR A W AMAN Advocate for : MR. S M ABDULLAH P appearing for KEWELO U KROME Page No.# 2/8 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER 21.01.2025 Heard Mr. S. Nawaz, learned counsel petitioners. Also heard Ms. F. Hussain, learned counsel for the respondent. 2. This application is filed under Section 407 of the Code of Criminal Procedure, 1973 praying for the transfer of Domestic Violence Case No. 07/2022, from the Court of learned Judicial Magistrate First Class, Dimapur to the Court of learned Chief Judicial Magistrate, Nagaon or any other Criminal Court in Assam, nearest to Dimapur, Nagaland. 3. It is contended by the petitioners that previously the petitioner No.1 worked in New Delhi at Effizert Pvt. Ltd., where he became acquainted with the respondent. Approximately four years ago, the respondent borrowed Rs. 1,00,000 from the petitioner No.1, claiming it was for her mother’s treatment. Subsequently, she borrowed another Rs. 2,50,000/- on two separate occasions. By 2020, the respondent owed the petitioner No.1 a total of Rs. 3,50,000/-. Despite the petitioner No.1 lending the money in good faith, during the COVID- 19 crisis, he urgently needed funds and requested repayment from the respondent. However, she expressed her inability to repay, citing her own financial difficulties. Instead of repaying, the respondent continued to ask for more money, and her demands turned into harassment. She frequently visited the petitioner’s No.1 workplace, causing embarrassment. As a result of the Page No.# 3/8 persistent pressure and financial strain, the petitioners moved to Assam in November 2020 and started working odd jobs while managing the family business. The petitioner No.1 continued requesting repayment but was refused. 4. In addition to the petitioners’ contention, Mr. Nawaz, learned counsel for the petitioners, has submitted that in October 2022, the petitioner No.1 gave the respondent an ultimatum to repay or face legal action. In response, the respondent filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 alleging that she had been in a live-in relationship with the petitioner No.1, later engaged, and that the petitioner No.1 had fathered her child. This led to Domestic Violence Case No. 07/2022 in Dimapur, Nagaland. 5. Upon receiving the notice, the petitioner No.1 confronted the respondent but was threatened. He filed a complaint with Samaguri Police Station on 10.02.2023 but was told the police could not investigate the case since it occurred in Dimapur. On 28.02.2023, the petitioner No.1 learned of a conspiracy to abduct him upon his arrival in Dimapur, which he reported to the Samaguri Police. 6. Mr. Nawaz, learned counsel for the petitioners, further submitted that the petitioners did not appear before the learned Trial Court on 16.03.2023. Due to the petitioners’ absence, the said Court decided to proceed against the petitioners’ ex-parte and fixed the case for 12.04.2023 for ex-parte evidence. Fresh notices were issued to them, along with a copy of the order dated 16.03.2023. On the said date, i.e., 12.04.2023, the petitioners remained absent, and accordingly, the matter was fixed for 28.04.2023 for ex-parte evidence. Due to fear and a life threat, the petitioners were unable to seek a vacation of the ex-parte order. Therefore, they pray for the transfer of Domestic Violence Case Page No.# 4/8 No. 07/2022 from the learned JMFC, Dimapur, to the Court of the learned CJM, Nagaon, or any other criminal court in Assam nearest to Dimapur, Nagaland, as the petitioners feel unsafe attending the trial in Dimapur. He further submitted that the petitioners are ready to bear all the traveling expenses of the respondent if their prayer is allowed. 7. In addition to the submission, he also submtted that the Hon'ble Gauhati High Court has the authority to transfer the case, as affirmed by the Supreme Court in Shah Newaz Khan and Ors. v. State of Nagaland and Ors., reported in 2023 SCC OnLine SC 203. 8. Ms. Hussain, counsel for the respondent, submitted that both the petitioner and respondent are husband and wife, having married on 21.11.2021. She stated that she endured physical, mental, verbal, and financial abuse from the petitioners. In 2021, the petitioners began exploiting her financially, demanding more money to invest in his business. During this time, the respondent became pregnant, and the petitioner No.1 encouraged her to go to Nagaland for the delivery. After the baby’s birth, the petitioner No.1 ignored her and failed to provide financial support, even stopping her calls. The respondent further stated that she sold property in Nagaland to support the petitioner No.1 financially. In 2020, she invested Rs. 9,63,000/- in M/s Moitree Enterprises, owned by the petitioner No.2, but has not received any return on the investment. Additionally, she paid Rs. 50,000/- on 21.02.2021 for a generator delivery, and in 2021, she took a loan of Rs. 3,00,000/-, which was credited to the petitioners’ account. The petitioner No.1 also used her HDFC credit card to buy an iPhone worth Rs. 69,900/-, leaving a balance of Rs. 57,100/-. The respondent has taken several loans on the petitioner’s No.1 behalf, leading to the blocking of all her credit cards and accounts. As a result, she is unable to apply for jobs. She cares for Page No.# 5/8 her ailing mother and child and has filed a maintenance case for support. The petitioner No.1 has remarried, and the respondent now lives with her son and mother in a rented house, selling CTC tea leaves to meet daily expenses. She faces significant financial hardship, making it difficult for her to travel outside Dimapur for the case proceedings due to the need to care for her child and old ailing mother. 9. In addition to her submission, she relied on the case decided by the Hon’ble Supreme Court in Harita Sunil Parab vs. The State (NCT of Delhi) and others, reported in (2018) 6 SCC 358, wherein it was observed that while exercising the power under this section, the court must be fully satisfied that an impartial trial is not possible. Equally important is the need to verify that the apprehension of not having a level playing field is based on credible materials and not just conjecture or surmise. Thus, she submits that the statements made in the instant petition are omnibus in nature, not based on credible materials, and the facts enumerated are insufficient to substantiate the allegations of threats made to the petitioner and his mother. 10. She further submitted that the petitioners has cited the case of Shah Nawaz Khan (supra), which deals with the interpretation of Sections 24 and 25 of the CPC in relation to interstate transfer of proceedings. The facts of the case do not arise from maintenance proceedings. In the case of Rajneesh v. Neha, reported in (2021) 2 SCC 324, the Hon'ble Supreme Court observed that the remedy of maintenance is a measure of social justice as envisaged under the Constitution, to prevent wives and children from falling into destitution and vagrancy, as set forth in the Preamble and Articles 39 and 15(3) of the Constitution of India. Thus, she raised objections regarding the transfer of Domestic Violence Case No.07/2022 from the learned JMFC, Dimapur, to any Page No.# 6/8 other court, citing financial hardship and the fact that there is no one to take care of her two-year-old son and her old ailing mother. 11. In this context, Mr. Nawaz, learned counsel for the petitioners, has submitted that the petitioners are the respondent in the Domestic Violence case and, their lives are at risk, and thus, they cannot appear before the learned JMFC, Dimapur. He further submits that, if they do not appear, the case may proceed ex-parte, in which event the respondent may not be benefitted. He further submitted that initially, when the petitioners received threats from the respondent's side, the petitioner No.1 approached the Samaguri Police Station. Although the case was not registered due to jurisdictional issues, a GD entry (GD No. 198 dated 10.02.2023) was made. Subsequently, they received further threats from the respondent's side, which led them to approach the Samaguri Police Station again. As a result, another GD entry (GD No. 547 dated 28.02.2023) was registered. He also submitted that the petitioners are ready and willing to bear all travel expenses of the respondent, if the case is transferred to a criminal court nearest to Dimapur, such as the Bokajan or Diphu Court, both of which are approximately 1 to 1.5 hours from Dimapur. However, at this stage, the petitioners are unable to appear before the learned Court below in Dimapur due to life threat. 12. In response, Ms. Hussain, learned counsel for the respondent, has submitted that there is no material to substantiate the threat allegations except for the two GD entries, which she claims are lodged with vague allegations intended to harass the respondent. She further submits that the respondent has a two-and-a-half-year-old child and she resides with her old, ailing mother. As such, she is not in a position to travel to the Court in Assam, leaving her minor child and mother. Accordingly, she raised an objection and submitted that it is Page No.# 7/8 not a suitable case to transfer the case from Dimapur to any other court, as prayed by the petitioners. 13. After hearing the submissions made by the learned counsels for both sides, I have perused the case record and the annexures filed along with the petition. It is a fact that there were some monetary transactions between the petitioner No.1 and the respondent. According to the respondent, there was also a husband-wife relationship between the respondent and the petitioner No.1. Both parties have made allegations and counter-allegations. However, it is evident that the petitioner No.1 approached the Samaguri Police Station on two occasions after receiving life-threatening threats from the respondent's side, and to substantiate the claims, the petitioners have provided copies of the two GD entries registered at the Samaguri Police Station. While these were denied by the respondent and the respondent claims that the petitioners, in an attempt to harass the respondent, filed the petition for transfer and stated that, leaving her minor child and mother behind, she is not in a position to appear before any trial court in Assam. She also stated that she cannot bear the expenses of her travel. However, the petitioners have already stated in the petition, and the learned counsel for the petitioners has reiterated before this Court, that the petitioners are willing to bear all the travel expenses that may be incurred by the respondent or her witnesses. 14. The plea of threatening cannot be outrightly rejected, as the petitioners has approached the Samaguri Police Station on two occasions, and two GD entries have been registered, it must be noted that the petitioners has requested the case be transferred to a court in Assam nearest to Dimapur and the petitioner No.1 is also ready to facilitate the travel expenses to the respondent for her appearance. Mr. Nawaz, learned counsel for the petitioners, Page No.# 8/8 has submitted that the case may be transferred to either the Bokajan Court or the Diphu Court, both of which are considered to be the nearest courts to Dimapur. 15. Considering the entire facts and circumstances of the case, and also taking into account the view of the Hon’ble Apex Court in the case of Shah Nawaz Khan (supra), I find it appropriate to transfer Domestic Violence Case No. 07/2022 from the learned JMFC, Dimapur, to the Court of the learned JMFC, Bokajan, Assam. Accordingly, the learned JMFC, Dimapur, is hereby directed to transfer the case records to the Court of the learned JMFC, Bokajan, with a direction for the parties to appear before the learned JMFC, Bokajan, on a date fixed by the concerned court. The learned JMFC, Bokajan, Assam will fix a date after receiving the records of the Domestic Violence Case No. 07/2022 from the Court of the learned JMFC, Dimapur. 16. In terms of above, this Transfer petition stands disposed of. 17. Sent a copy of this order to the respective learned Courts below. JUDGE Comparing Assistant