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2016 (7) TMI 1684 - SC - Indian LawsPower of Court to transfer a civil or criminal case pending in any Court in the State of Jammu and Kashmir to a Court outside that State and vice versa - Section 25 of the Code of Civil Procedure and Section 406 of the Code of Criminal Procedure - HELD THAT:- This Court has by a long line of decisions given an expansive meaning and interpretation to the word 'life' appearing in Article 21 of the Constitution. In MANEKA GANDHI VERSUS UNION OF INDIA [1978 (1) TMI 161 - SUPREME COURT], this Court declared that the right to life does not mean mere animal existence alone but includes every aspect that makes life meaningful and liveable, (to be checked). In SUNIL BATRA VERSUS DELHI ADMINISTRATION [1978 (8) TMI 228 - SUPREME COURT] the right against solitary confinement and prison torture and custodial death was declared to be a part of right to life. Even if the provision empowering courts to direct transfer from one court to other were to stand deleted from the statute, the superior courts would still be competent to direct such transfer in appropriate cases so long as such courts are satisfied that denial of such a transfer would result in violation of the right to access to justice to a litigant in a given fact situation. One of the questions that fell for consideration in that case was whether this Court could in exercise of its powers under Articles 136 and 142 withdraw a case pending in the lower court and dispose of the same finally even when Article 139A does not empower the court to do so. Answering the question in the affirmative, this Court held that the power to transfer cases is not exhausted Under Article 139A of the Constitution. This Court observed that Article 139A enables the litigant to seek transfer of proceedings, if the conditions in the Article are satisfied. The said Article was not intended to nor does it operate to affect the wide powers available to this Court under Articles 136 and 142 of the Constitution. In the cases at hand, 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 nor any public policy can be seen in the cases at hand much less a public policy based on any fundamental principle - 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. The transfer petitions shall now be listed before the regular bench for hearing and disposal on merits.
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