Single Judge Bench of the High Court of Jammu and Kashmir (Sringar Bench) comprising of HON'BLE JUSTICE JAVID IQBAL has held that, "The Contention of the Petitioner, if not specifically denied by the Respondent in his reply, could only draw an inference that the contention of the Petitioner is being admitted by the Respondent"
Counsel for Petitioner: Mr. N.H. Shah, Advocate, with
Ms. Shaila Shameem, Advocate.
Counsel For Respondent: Mr. Malik Mushtaq, Advocate.
The bench was hearing a Transfer petition titled Javaid Ahmad Sheikh vs Mohammad Iqbal Thokar, wherein the Petitioner had sought transfer of Criminal Complaint Under Section 138 of Negotiable Instruments Act pending before Sub Judge/Judicial Magistrate, Pulwama, wherein the Petitoner had sought the relief to transfer the said complaint to any Judicial Magistrate at Srinagar.
In Para 6 of the Judgment, the Court observed that, "A bare perusal of the contention urged by the petitioner in para 2 (supra) reveals that a specific allegation has been leveled against the respondent for having harassed the petitioner on his appearance before the Court at Pulwama so much so the alleged beating given to the petitioner with the help of security personnel attached with the brother of the respondent. The said contention of the petitioner as emerged from a plain reading of reply filed by the respondent has not been specifically denied. Thus the only inference that could be drawn, as such, would be that the contention of the petitioner is being admitted by the respondent."
While deciding over the Power of the High Court to decide the Transfer Petitions filed under Section 407 of CrPC, the court in Para 7 of the Judgment observed that, "Law is no more res integra that under Section 407 of the Code of Criminal Procedure power is vested unto the High Courts to transfer cases from one Court to another and inter alia a ground for fair and impartial enquiry or trial as also convenience of parties has been held to be a legitimate ground for transfer of a criminal case."
The Court further observed that, "The contention of the petitioner (supra) and its response (supra) by the respondent thereto manifestly suggests that the petitioner may not likely have fair chance to defend the case before the Court at Pulwama so much so it would also not be inconvenient to the respondent in the event the case is transferred to a Court of competent jurisdiction at Srinagar, being almost at equal distance from the place of residence of the petitioner and respondent."
While allowing the Petition, the Court observed that, "Having regard to the aforesaid facts and circumstances obtaining in the matter as also the position of law noticed in the preceding paras, the petitioner has
been able to carve out case for exercise of jurisdiction of this Court under Section 407 Cr.P.C. Accordingly, complaint filed by the respondent against the petitioner tiled as “Mohammad Iqbal Thoker Vs. Javaid Ahmad Sheikh” pending before the Court of Sub Judge/ Judicial Magistrate, Pulwama, is withdrawn from the files of the said Court and transferred to the Court of Chief Judicial Magistrate, Srinagar, who shall either retain the same or else transfer/assign the same to any other Court of competent jurisdiction for disposal in accordance with law."
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Judgment