Supreme Court Not Powerless To Transfer Petitions From J & K To Any Other States And Vice Versa, Reiterates SC [Read Order]

The Supreme Court has reiterated that it can transfer the petition from the State of Jammu & Kashmir to any other State and vice versa under Article 32 and/or Article 136 and 142 of the Constitution of India.

The bench comprising Justice NV Ramana and Justice Ajay Rastogi was considering a petition was filed under Section 25 of the Code of Civil Procedure, 1908 for transfer of Divorce Petition pending in a District Court in Srinagar, to the Court of competent jurisdiction at Amritsar, Punjab.

The bench, in its order, referred to a Constitution Bench judgment in Anita Kushwaha vs. Pushap Sudan, which settled the issue with regard to the maintainability of transfer petitions from the State of Jammu and Kashmir and vice versa. Allowing the request of transfer, the bench observed:

Thus, in the interest of justice and in the facts and circumstances of the case, we treat this transfer petition as one filed under Article 32 of the Constitution of India. However, it is made clear that this shall not be treated as precedent. 

Transfer Petitions Before Supreme Court

Section 25 of the Code of Civil Procedure enables the Supreme Court, at any stage, if satisfied that an order under this section is expedient for the ends of justice, to direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. Similarly Section 406 of the Code of Criminal Procedure empowers it to transfer the criminal cases from one State to the other.

However, the Code of Civil Procedure and the Code of Criminal Procedure does not apply to the State of Jammu and Kashmir.

Anita Kushwaha Judgment

The contention in Anita Kushwaha was that since 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 vice versa, the Supreme Court has no power to transfer cases to and from the state.

Rejecting the said contention, the Constitution Bench of the Supreme Court has held that Supreme Court can, by invoking Article 32, 136 and 142 of the Constitution is empowered to transfer a case from a Court in the State of Jammu and Kashmir to a Court outside the State or vice versa. The five Judges Bench comprising of Chief Justice of India Dr. T.S. Thakur, Justices Fakkir Mohamed Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde, and R. Banumathi observed:

There is no prohibition against 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 simplicitor is not enough. What is equally important is to see whether there is any fundamental principle of public policy underlying any such prohibition. No such prohibition or 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."

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