Kerala High Court
Victim vs Unknown on 3 April, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941
Tr.P(Crl.).No. 20 of 2019
SC 555/2017 OF ADDITIONAL SESSIONS COURT, NORTH PARAVUR
CRIME NO. 2080/2014 OF NORTH PARUR POLICE STATION , ERNAKULAM
PETITIONER:
VICTIM
AGED 34 YEARS
VICTIM
BY ADVS.
SMT.P.K.PRIYA
SRI.A.J.R.VARGHEESE
RESPONDENTS
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA-682 031
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, REPRESENTING STATION HOUSE OFFICER, NORTH
PARUR POLICE STATION, ERNAKULAM DISTRICT-682 031
3 ANEESH RAHMAN
AGED 26 YEARS, S/O. ABDUL RAHMAN, THOTTUNKAL HOUSE,
PALLITHAZHAM, NORTH PARAVUR VILLAGE-683 513
4 KHADEEJA
AGED 44 YEARS, W/O. ABDUL RAHMAN, THOTTUNKAL HOUSE,
PALLITHAZHAM, NORTH PARAVUR VILLAGE.-683 513
BY ADV.
SRI.M.SHAJU PURUSHOTHAMAN FOR R3 & R4
THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
03.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Tr.P(Crl.)No.20 of 2019
2
(CR)
ALEXANDER THOMAS, J.
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Transfer Petition (Crl.)No.20 of 2019
===========================
Dated this the 03rd day of April, 2019
ORDER
The prayer in the above Transfer Petition (Criminal) filed under the enabling provisions contained in Sec.407 of the Code of Criminal Procedure, 1973 is for transfer of the Sessions case S.C.No.555/2017 on the file of the Additional Sessions Judge, Parur to the Special Court for Women and Children (POCSO), viz., Additional Sessions Court, Ernakulam.
2. Heard Smt.P.K.Priya, learned counsel appearing for the petitioner/victim, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for official respondents 1 & 2 and Sri.Shaju Purushothaman, learned counsel appearing for respondents 3 & 4 (accused).
3. The above sessions case arises under Crime No.2080/2014 of North Parur Police Station, which was registered for offences punishable under Secs.376, 420, 506(ii) and 34 IPC.
4. From the said crime, now six sessions cases have arisen and five such sessions cases, viz., S.C.No.55, 56, 57, 58 & 59/2018 are now on the file of the Special Court for Women and Children (POCSO), Tr.P(Crl.)No.20 of 2019 3 Additional Sessions Court, Ernakulam, whereas the present case S.C.No.555/2017 is on the file of the Court of the Additional Sessions Judge, North Paravur. The petitioner is a victim in the abovesaid crime and prays that since all the other five sessions cases are now pending before the Special POCSO Court at Ernakulam, the present case, S.C.No.555/2017 may also be transferred from the Court of the Additional Sessions Judge, North Parur to the abovesaid Sessions Court, Ernakulam.
5. It is not in dispute that the petitioner has approached this Court, without approaching the Principal Sessions Court, Ernakulam. Sec.407(1) of the Code of Criminal Procedure, 1973 empowers the High Court to order the transfer of cases as envisaged in that provision. However, sub-section (2) of Sec.407 further stipulates that the High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative. Proviso to sub- section (2) of Sec.407 stipulates that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
6. In the light of the abovesaid specific provision contained in the Proviso to Sec.407(2) of the Cr.P.C., Sri.Shaju Purushothaman, Tr.P(Crl.)No.20 of 2019 4 learned counsel appearing for contesting respondents 3 & 4 (accused), would submit that since the petitioner has not so far approached the Principal Sessions Court, Ernakulam with the request to transfer the case from the Additional Sessions Court, Parur to the Additional Sessions Court, Ernakulam, the present application at the instance of the petitioner under Sec.407 of the Cr.P.C is not maintainable.
7. True that if the request is triggered on the basis of the application of a party in question, then certainly the said party will have to approach the Principal Sessions Court concerned, in a case where the transfer of the case sought for by the party from one court to another, within the same sessions division. However, sub-section (2) of Sec.407 of the Cr.P.C specifically mandates that the High Court may act on the report of lower court or on the application of the party in question or on its own initiative. From a reading of the abovesaid provision, it is clear that the restriction imposed on the Proviso to Sec.407(2) of the Cr.P.C is only in a case, where a party interested seeks transfer of a case from one court to another, within the same sessions division. The said restriction will have no application in a case, where the High Court is acting on its own initiative. The said provision thus clearly confers power on the High Court to take appropriate decision suo motu, i.e. on its own initiative, but certainly after hearing the affected parties concerned. Tr.P(Crl.)No.20 of 2019 5
8. In the instant case, the petitioner is the hapless victim of a series of rape cases and the matter has been registered as a single crime, viz., Crime No.2080/2014 of North Parur Police Station. Six sessions cases have now arisen out of the single crime, out of which five are now in the Additional Sessions Court concerned, Ernakulam, whereas the instant case is pending before the Additional Sessions Court, North Parur, Ernakulam which is also within the limits of the sessions division at Ernakulam. Smt.P.K.Priya, learned counsel for the petitioner/victim would submit that it is extremely traumatic for the victim to attend two different courts in these matters, which had all arisen from a single crime and that if all the six cases are in the same court and all the cases are conducted by the same prosecutor, the cases could be managed with better focus and co-ordination. Further that the petitioner/victim is also proposing to engage a counsel to assist the prosecution as per the provisions contained in the Cr.P.C and if the cases are to be conducted in two different sessions court, then the petitioner will have to face great difficulties in managing the cases, in assisting the prosecution, as aforestated.
9. It is in the light of these aspects that the learned counsel appearing for the petitioner/victim would urge that this Court may order the transfer of a case, so that all the six sessions cases, which have Tr.P(Crl.)No.20 of 2019 6 all arisen from a single crime, are tried in the same court. Further, it is pointed out that though the present application has been triggered on the basis of the request of the petitioner/victim, this Court has powers to take suo motu action in the matter as explicitly conceived in sub-section (2) of Sec.407 and that the said suo motu powers to take action on its own initiative, is not fettered by the abovesaid restriction in the Proviso thereto and that so long as the exercise of the power is for the better interest of the administration of justice, this Court is certainly be justified to exercise its suo motu powers, as envisaged in Sec.407(2).
10. Learned Public Prosecutor appearing for respondents 1 & 2 would submit on the basis of instructions that the prosecution has no serious objection to the request of the petitioner/victim, so that all the cases are before the same sessions court and that this would also be better for the convenience not only for the petitioner/victim but also for the prosecution as well as the accused persons concerned. Further, the learned Public Prosecutor would point out that this is a fit case, in which this Court can exercise its powers conferred under Sec.407(2) of the Cr.P.C, so as to consider the said request, on its own initiative as conceived in Sec.407(2) of the Cr.P.C.
11. Taking into consideration all the abovesaid aspects, it has to be borne in mind that all the six sessions cases have arisen from the Tr.P(Crl.)No.20 of 2019 7 single crime and the petitioner is the victim in all the six sessions case, which have all arisen from the single crime. No serious prejudice will be caused to the contesting respondents 3 & 4 (accused), if the case is transferred from North Parur in Ernakulam District to the Additional Sessions Court at Ernakulam, as both the courts are within Ernakulam District. The accused who are based at North Paravur have easy and fast means of transportation to travel from their place to the Court at Ernakulam. Moreover, contesting respondents 3 & 4 (accused) are already on bail and even if there is some slight delay on account of the transfer of the case, they will not be seriously prejudiced. After hearing the parties concerned, it is seen that no substantive objections had been raised by contesting respondents 3 & 4, on the merits of the matter, so as to oppose the request for the transfer of the case.
12. In the light of these aspects, this Court is of the considered view that it is a fit case, where this Court can exercise its suo motu powers, i.e. the power to take action on its own initiative as conceived in Sec.407(2) of the Cr.P.C. Accordingly, in exercise of said powers conferred under Sec.407(2) of the Cr.P.C, it is ordered that the present sessions case S.C.No.555/2017 now on the file of the Additional Sessions Court, North Parur will stand transferred to the Special Court for Women and Children, Ernakulam, which is already dealing the other Tr.P(Crl.)No.20 of 2019 8 five sessions cases. Registry will forward a copy of this order to both the abovesaid Sessions Court and on receipt of the order, the Additional Sessions Court, North Paravur will ensure that the entire case records and case papers in relation to S.C.No.555/2017 is transmitted to the Special Court for Women and Children, Ernakulam, without much delay, preferably within a period of 2 to 3 weeks from the date of receipt of a certified copy of this order.
With these observations and directions, the above Transfer Petition (Criminal) will stand disposed of.
Sd/-
ALEXANDER THOMAS JUDGE vgd/04.04.19 Tr.P(Crl.)No.20 of 2019 9 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE E-CHARGE SHEET IN CRIME NO. 2080/2014 OF NORTH PARUR POLICE STATION, NOW PENDING AS S.C. NO. 555 OF 2017 ON THE FILES OF THE ADDITIONAL SESSIONS COURT, NORTH PARUR.