caselaws
Supreme Court of India
Milap Choraria vs Sanjay Kumar Jhunjhunwala & Ors on 5 May, 2017Author: …………………..J.
Bench: Kurian Joseph, R. Banumathi
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL/CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (C) No. 644 OF 2012
MILAP CHORARIA Petitioner(s)
VERSUS
SANJAY KUMAR JHUNJHUNWALA & ORS. Respondent(s)
WITH
WRIT PETITION (CRIMINAL) NO. 82 OF 2016
O R D E R
T.P.(C) NO. 644 OF 2012
1. This transfer petition is filed with the following prayer :-
“(a) transfer suit No. 250 of 2011, titled as “Sanjay Jhunjhunwala
Vs. Milap Choraria & Ors.” pending in the court of Hon’ble Mr. Justice I.P.
Mukerji of Calcutta High Court along with all the applications and records
of earlier Civil Suit No. 244 of 1990 filed by above named respondent No. 1
against the Petitioner, from the original side of the Calcutta High Court
to the competent court in Delhi.”
2. The petitioner, who has appeared in-person, submits that in view of
his health problems and advanced age, he is not in a position to travel to
Kolkata and, therefore, the suit may be transferred to Delhi where he is
presently residing. There is also an allegation of threat to the life of
the petitioner.
3. The learned counsel for the respondents points out that the
petitioner had been prosecuting many cases in Kolkata when he filed this
transfer petition in the year 2012 before this Court. It is submitted that
the cause of action arose in Kolkata and, therefore, the suit could be
tried only in Kolkata.
4. Having heard the petitioner-in-person and the learned counsel
appearing for the respondents, we do not find any special reason for the
transfer. The petitioner submits that this court may exercise its
jurisdiction under Article 142 of the Constitution of India and dismiss the
suit as not maintainable, since according to the petitioner, the suit is an
abuse of process, frivolous and not maintainable as an earlier suit for the
same cause of action had been dismissed by the High Court vide order dated
16.03.2006.
5. We are afraid, the jurisdiction under Article 142 of the Constitution
of India is not meant to be invoked in such situations. It is for the
petitioner to pursue his remedies in case he is of the view that the suit
is not maintainable, including raising a preliminary issue in that regard.
Therefore, this Transfer Petition is dismissed, making it clear that in
case, a preliminary issue is raised, the court will first try that issue
before the trial of the case.
W.P. (Crl.) NO. 82 of 2016
1. This Writ Petition is filed under Article 32 of the Constitution of
India with the following prayers:-
“(A) Issue a writ of mandamus or any other appropriate writ, order or
direction holding that under the Constitutional Scheme to protect the
Fundamental Rights under Article 14, 19(1)(d), 19(1)(e) and 21 of the
Constitution, Respondent No. 3 is duty bound to hold the investigation in
the matter of crimes committed against the petitioner, which cannot be
covered within the definition, meaning, scope and ambit of the subject
matter of the law and order or public order being enumerated under the
State List under Article 246(1) of the Constitution of India, since such
crimes prevailed under the Criminal Conspiracy and Connivance between the
Politicians in Powers of the Respondent no.2 on one side and the Respondent
No. 4 and/or 5 on the other side and prevailed under open patronage,
protection and support from the concerned Public Servants of the respective
Departments or Public Authority under the control or supervision of the
Respondent No. 2 which more fully described in the full set of the
application dated 10th November, 2008 (Annexure P-37) addressed to H.E. the
then Governor of West Bengal with copy to the then Chief Minister of West
Bengal and described in another application being subject matter of File
No. 419/05/2009-ADV.IV (Annexure P-39) of the concerned Department of the
Respondent No. 1;
(B) Issue a writ of mandamus or any other appropriate writ, order or
direction upon the Respondent no. 3 to hold the preliminary
enquiry/investigation in the matters more fully described in the full set
of the application dated 10th November, 2008 (Annexure P-37) addressed to
H.E. the then Governor of West Bengal with copy to the then Chief Minister
of West Bengal and described in another application being subject matter of
File No. 419/05/2009-ADV.IV (Annexure P-39) of the concerned Department of
the Respondent No. 1 and submit its status report for further order or
direction by the Hon’ble Supreme Court;
(C) Issue show cause upon Respondents, that why such writ of mandamus or
any other appropriate writ, order or direction should not be issued in
terms of the prayer as aforesaid; and
(D) Allow the present Writ Petition with the exemplary costs.”
2. When this writ petition was considered by this Court on 01.08.2016,
the following order was passed:-
“Petitioner appears in-person and submits that he has also filed
Transfer Petition (C) No. 644 of 2012.
List the Transfer Petition (C) No. 644 of 2012 along with this
petition.”
3. We have already dismissed the transfer petition as above. We do not
find any special reason to entertain this writ petition filed under Article
32 of the Constitution of India. It is for the petitioner, if so advised,
to approach the High Court for appropriate relief. Without prejudice to
such liberty given to the petitioner, the writ petition is dismissed.
…………………..J.
[ KURIAN JOSEPH ]
…………………..J.
[ R. BANUMATHI ]
New Delhi;
May 5, 2017.
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