Case Study On Anita Kushwaha vs. Pushap Sudan

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Facts in brief-

  • The transfer petitions are opposed by the respondents,inter alia, on the ground that the provisions of Section 25 of the Code of Civil Procedure and Section 406 of the Code of Criminal Procedure, which empower this Court to direct transfer of civil and criminal cases respectively from one State to the other, do not extend to the State of Jammu and Kashmir and cannot, therefore, be invoked to direct any such transfer.
  • The Transfer Petitions are also opposed on the ground that the Jammu and Kashmir Code of Civil Procedure, 1977 and the Jammu and Kashmir Code of Criminal Procedure, 1989 do not contain any provision empowering the Supreme Court to direct transfer of any case from that State to a Court outside the State or It is also contended on behalf of the respondents that, in the absence of any provision empowering this Court to direct transfer of civil or criminal cases from or to the State of Jammu and Kashmir, no such power can be invoked or exercised by this Court.
  • It is further urged that the provisions of Article 139-A of the Constitution which empowers this Court to transfer a case pending before one High Court to itself or to another High Court also has no application to the cases at hand as the Constitution 42ndAmendment Act, 1977 which inserted the said provision itself has no application to the State of Jammu and Kashmir.
  • It is argued that in the absence of any enabling provision in the Code of Civil and Criminal Procedure or in the Constitution of India or the State Constitution for that matter, a litigant has no right to seek transfer of a civil or a criminal case pending in the State of Jammu and Kashmir to a Court outside the State or vice versa.
  • On behalf of the petitioners, it was, on the other hand, submitted that while Sections 25 of the Code of Civil Procedure and 406 of Code of Criminal Procedure as applicable to the rest of the country have no application to the State of Jammu and Kashmir, there was no specific or implied prohibition in the said two codes against the exercise of power of transfer by the Supreme Court under the Constitution or under any other provision of the law whatsoever.
  • It was urged that inapplicability of the Central Civil and/or Criminal Procedure Code to the State of Jammu and Kashmir or the absence of an enabling provision in the State Code of Civil and/or Criminal Procedure does not necessarily imply that this Court cannot exercise the power of transfer, if the same is otherwise available under the provisions of the Constitution.
  • So also, the inapplicability of Article 139-A to the State of Jammu and Kashmir by reason of non-extension of the Constitution 42nd Amendment Act to that State does not constitute a disability, leave alone, a prohibition against the exercise of the power of transfer if such power could otherwise be traced to any other source within constitutional framework.
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Issue-

  • The question, however, is whether independent of the provisions contained in the Codes of Civil and Criminal Procedure is there a source of power which this Court can invoke for directing the transfer of a case from the State of Jammu and Kashmir or vice versa. On behalf of the petitioners, it was contended that even when the Central Codes of Civil and Criminal Procedure have no applicability to the State of Jammu and Kashmir and even when the State Codes of Civil and Criminal procedure do not contain any provision empowering this Court to direct transfer it does not mean that this Court is helpless in making an order of transfer inappropriate case where such transfer is otherwise called for in the facts and circumstances of a given case.

Judgment-

In the cases at hand, there is no prohibition against the use of power under Article 142 to direct transfer of cases from a Court in the State of Jammu and Kashmir to a Court outside the State or vice versa. All that can be said is that there is no enabling provision because of the reasons which we have indicated earlier. The absence of an enabling provision, however, cannot be construed as a prohibition against transfer of cases to or from the State of Jammu and Kashmir. At any rate, a prohibition implicit or is not enough. What is equally important is to see whether there is any fundamental principle of the public policy underlying any such prohibition. Neither such prohibition nor any public policy can be seen in the cases at hand much less a public policy based on any fundamental principle. The extraordinary power available to this Court under Article 142 of the Constitution can, therefore, be usefully invoked in a situation where the Court is satisfied that denial of an order of transfer from or to the Court in the State of Jammu and Kashmir will deny the citizen his/her right of access to justice. The provisions of Articles 32, 136 and 142 are, therefore, wide enough to empower this Court to direct such transfer in appropriate situations, no matter Central Code of Civil and Criminal Procedures do not extend to the State nor do the State Codes of Civil and Criminal Procedure contain any provision that empowers this court to transfer cases. We accordingly answer the question referred to us in the affirmative.

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The transfer petitions shall now be listed before the regular bench for hearing and disposal on merits keeping in view what has been observed above.

By Nehul Chaturvedi