Kerala High Court
Babu Velleriyan vs State Of Kerala on 15 July, 2020
Equivalent citations: AIRONLINE 2020 KER 389
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 15TH DAY OF JULY 2020 / 24TH ASHADHA, 1942
Tr.P(Crl.).No.32 OF 2020
IN SC 240/2017 OF ADDITIONAL SESSIONS COURT - V, KOLLAM
CRIME NO.1279/2016 OF THEKKUMBHAGOM POLICE STATION , Kollam
PETITIONER/S:
BABU VELLERIYAN
AGED 45 YEARS
S/O.VALLERIYAN,
KIZHAKKEPPURA VEEDU,
KOIVILA-EAST, THEVALKKARA,
REPRESENTED BY NEXT FRIEND,
GRACY VALERIAN (MOTHER)
PALUVILA VEEDU, VADAKKEKKARA,
THEVALKKARA
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA
ERNAKULAM - 682031
CRIME NO.1279/2016 OF THEKKUMBHAGOM POLICE
STATION, KOLLAM DISTRICT.
OTHER PRESENT:
SR.PP.C.S.HRITHWIK
THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 15.07.2020, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
Transfer Petition No.32 of 2020
2
V.G.ARUN, J.
========================
Transfer Petition No.32 of 2020
-------------------------
Dated this the 15th day of July, 2020
ORDER
The transfer petition under Section 407 of the Code of Criminal Procedure is filed by the mother of the accused in S.C No.240 of 2017 of the Vth Additional Sessions Court, Kollam. The brief facts, necessary for taking a decision on the request for transfer, are as under:-
The petitioner's son is the sole accused in Crime No.1279 of 2016 registered at the Thekkumbhagom Police Station registered for offences punishable under Sections 302 and 309 IPC. The case is now pending as SC No.240 of 2017 of the Vth Additional Sessions Court, Kollam. The accused is a person suffering from paranoid schizophrenia. On an earlier occasion, when the Transfer Petition No.32 of 2020 3 case was listed for trial, the fact of the accused being schizophrenic was brought to the notice of the trial court. The learned trial Judge, after calling for a medical report from the prison authorities, decided to proceed with the trial and issued summons to witnesses. At that point of time, the petitioner approached this Court contending that the trial cannot be proceeded without complying with the procedure prescribed under Chapter XXV of the Code of Criminal Procedure, which mandates an enquiry to be conducted if the accused is found to be suffering from mental disorder. By Annexure I order in Crl.M.C No.7526 of 2018, this Court set aside the order by which the trial court had scheduled the case for trial and directed trial to be proceeded with in strict compliance of the procedure contemplated under Section 329 of the Cr.P.C. The direction of this Court was complied with. Transfer Petition No.32 of 2020 4 Finding the accused to be capable of making his defence, the trial was scheduled to be held from 13.07.2020 onwards. The petitioner thereupon moved an application for transfer before the Principal Sessions Court, Kollam, voicing an apprehension that the trial Judge being the same person against whose order the petitioner had moved the High Court and obtained Annexure I order, the Judge is prejudiced against the accused. By Annexure III order, the learned Sessions Judge dismissed the transfer petition in view of the prohibition contained in Section 409(2) from entertaining a transfer petition by the Sessions Judge after commencement of trial and also finding the apprehension, based on which the transfer was sought, to be misplaced.
2. Heard Sri.S.Rajeev, learned Counsel for the petitioner and Sri.Suman Chakravarthi, learned Public Prosecutor.
Transfer Petition No.32 of 2020 5
3. The learned Counsel for the petitioner vehemently contended that the observations made by this Court in Annexure I order has invited the trial judge's displeasure and prejudice against the petitioner. It is contended that right to fair trial is a fundamental right and the circumstances of the instant case clearly indicates fair trial to be a remote possibility.
4. The learned Public Prosecutor submits that the attempt through the transfer petition is only to delay the trial and that trial having commenced, the prayer for transfer cannot be allowed. It is submitted that the learned Sessions Court having approached the issue in the correct perspective, no interference is warranted against Annexure III order.
5.The contention that, interference/correction of proceeding/order of the lower court by a court of superior jurisdiction and observations made by Transfer Petition No.32 of 2020 6 the high court would invite the displeasure of the Judge, whose order/proceedings was interfered with, is liable to be rejected. If orders of the higher courts are deemed to invite the displeasure and prejudice of the lower court Judge against the party at whose instance the order was passed, and such deemed prejudice entertained as a ground to transfer a pending case, that would go against the time tested hierarchical system of our courts, which is the very foundation of our justice delivery system.
6. As rightly found in Annexure III, other than voicing an apprehension, of the trial Judge being prejudiced, no specific instance of such prejudice is stated by the petitioner. Section 407 of the Cr.P.C, dealing with the power of High Court to transfer cases and appeals, provides for exercise of such power only when it is made to appear to the High Court (a) that a fair and Transfer Petition No.32 of 2020 7 impartial inquiry or trial cannot be had in any criminal court subordinate thereto; or (b) that some question of law of unusual difficulty is likely to arise; or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice.
6. In spite of careful scrutiny of the transfer petition and consideration of the contentions urged on behalf of the petitioner, I am unable to find any circumstance relatable to Section 407, warranting transfer of the petitioner's son's case.
In the result, the transfer petition is
dismissed. No order as to costs.
Sd/-
V.G.ARUN
JUDGE
Scl/15.07.2020
Transfer Petition No.32 of 2020
8
APPENDIX
PETITIONER'S EXIHIBITS:
ANNEXURE I A TRUE COPY OF ORDER DATED 20.02.2019 IN CRL.MC NO.7526 OF 2018 PASSED BY THIS HONOURABLE COURT.
ANNEXURE II COPY OF THE REPORT DATED 3.4.2020 ANNEXURE III A CERTIFIED COPY OF THE ORDER DATED 6.7.2020 PASSED BY THE COURT OF SESSIONS KOLLAM IN CRL.T.P NO.483 OF 2020