Kerala High Court
Ajayan vs State Of Kerala on 20 October, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 20TH DAY OF FEBRUARY 2014/1ST PHALGUNA, 1935
Tr.P(Crl.).No. 49 of 2013 ()
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AGAINST THE ORDER IN CC 5311/2010 of JUDICIAL FIRST CLASS MAGISTRATE
COURT, IRINJALAKUDA
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PETITIONER(S)/DEFACTO COMPLAINANT:
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AJAYAN,
S/O.RAMAKRISHNAN, SARATHYTHRIKOVILAKAM (H),
ANCHALUMOODU, THRIKKADAVOOR, KOLLAM DISTRICT.
BY ADV. SMT.G.VIDYA
RESPONDENT(S)/ACCUSED:
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. LEELA SUKUMARAN, W/O.SUKUMARAN, KAITHAVALAPPIL (H)
ALAGAPPA NAGAR, AMBALLOOR,
TRICHUR DISTRICTPIN - 680 302.
3. SAJANA K.SUKUMARAN, D/O.SUKUMARAN, KAITHAVALAPPIL (H),
ALAGAPPA NAGAR, AMBALLOOR,
TRICHUR DISTRICTPIN - 680 302.
R1 BY PUBLIC PROSECUTOR SRI.N.SURESH
R2 BY ADV. SRI.G.SREEKUMAR (CHELUR)
THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
20-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PJ
Tr.P(Crl.).No. 49 of 2013 ()
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APPENDIX
PETITIONERS' ANNEXURES
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A1: COPY OF FINAL REPORT SUBMITTED IN CRIME NO.968/2010 OF PUTHUKKAD
POLICE STATION DATED 20/10/2010.
A2: COPY OF THE REQUEST SUBMITTEE TO INFORMATION OFFICER,
PUTHUKKAD POLICE STATION
P3: COPY OF REPLY GIVEN BY INFORMATION OFFICER, PUTHUKKAD POLICE
STATION DAYTED 23/3/2013.
RESPONDENTS' ANNEXURES
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
K.RAMAKRISHNAN, J.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x Transfer Petition (Crl) No. 49 of 2013 x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x Dated this the 20th day of February, 2014 O R D E R This is an application filed by the petitioner to transfer C.C.No. 5311/2010 pending before the Judicial First Class Magistrate Court, Iringalakuda to any Court at Kollam for disposal under Section 407 of the Code of Criminal Procedure.
2. It is alleged in the petition that the petitioner is the de facto complainant and respondents 2 and 3 are the accused in C.C. No. 5311/2010 pending before the Judicial First Class Magistrate Court, Iringalakuda. The offence alleged was punishable under Section 420 read with Section 34 of the Indian Penal Code. The petitioner along with his family is residing at Kollam. Apart from himself, his wife and mother are the main witnesses in the case. The wife of the petitioner has undergone a surgery and she cannot travel long distance. The 2nd respondent is Transfer Petition (Crl) No. 49 of 2013 2 trying to abuse the petitioner as she is much influential in the police and in the ruling party. So he filed this application seeking the following reliefs:
" For these and other grounds to be urged at the time of hearing the petitioner prays that this Hon'ble Court may be pleased to transfer C.C.No. 5311/2010 pending before the Judicial First Class Magistrate Court, Iringalakuda to the files of Judicial First Class Magistrate Court, Kollam, to meet the ends of justice "
3. Heard both sides.
4. The counsel for the petitioner submitted that since his wife and mother are main witnesses in the case and due to ill-health of his wife and old age of mother, it is difficult for them to travel and conduct the case at Iringalakuda and that was the reason why he filed this application.
5. On the other hand, counsel for the respondents 2 and 3 submitted that they are ladies and the petitioner and other witnesses have to come to the court only for Transfer Petition (Crl) No. 49 of 2013 3 one or two days for the purpose of giving evidence. But, on the other hand, if the case is transferred, they will have to travel several times from Irinjalakuda to Kollam that will cause serious hardship to them.
6. I have called for a report from the Judicial First Class Magistrate Court, Irinjalakuda regarding the present stage of the case and the learned Magistrate sent a report which reads as follows:
"In obedience to the reference cited above, I may be permitted to submit that C.C. 5311/2010 was taken on file under Section 420 r/w 34 IPC in Cr.No.968/2010 of Pudukkad Police Station against Leela Sukumaran and Sajna, K.Sukumaran as the 1st and 2nd accused respectively. The trial has been going on since 18.10.2011. From 18.10.2011 onwards, the case was posted for framing of charge. On several hearing dates, the presence of both accused could not be procured. Hence charge was framed on 1.10.2012 and summons was issued to C.Ws. 1 and 2. In spite of repeated issuance of so many coercive steps, presence of C.Ws. 1 and 2 could not Transfer Petition (Crl) No. 49 of 2013 4 be procured, so also both of the accused were absent and applied through counsel. Finally the case was posted for evidence on 20.1.2014. On that day also both accused were absent. Applied for both. Direction was given from the Court to produce both accused on next hearing date and also ordered to repeat NBW against C.Ws. 1 and 2. Case is now stands posted to 21.2.2014".
7. It is seen from the report that the case has been posted for trial and summons have been issued to C.Ws. 1 and 2, but they did not appear to give evidence and non-bailable warrant has been issued against them to procure their presence. So it is at this stage that they have come before this Court with this petition to transfer the case. Further it is seen from the report that the case is of the year 2010. The accused, who are the respondents 2 and 3 here are facing trial for the last four years and at the time when it came up for culmination of trial by examination of witnesses, the petitioner, who is the de facto complainant came with Transfer Petition (Crl) No. 49 of 2013 5 an application for transfer. The accused are ladies. As rightly pointed out by the counsel for the respondents 2 and 3, the witnesses in a prosecution case need appear before the Court, only when their examination is required. But, on the other hand, the accused will have to appear before the Court on each day when the case is posted till the disposal of the case. Further the case is prolonged not due to the fault on the part of the accused but due to the non-cooperation of the prosecution witnesses including the petitioner. So considering the circumstances, I feel that there is no ground made out for transfer of the case as claimed in the petition. So the petitioner is not entitled to get the relief of transfer of the case from Iringalakuda Court to Kollam Court. But, at the same time, in order to avoid inconvenience to the petitioner, his wife and mother, who are witnesses in that case, a direction can be given to the Magistrate that if the witnesses appear on a particular date, to complete the examination of these three witnesses on the same day itself, as far as possible. So the relief of transfer of Transfer Petition (Crl) No. 49 of 2013 6 the case is rejected considering the fact that non- bailable warrants are pending against the petitioner and his wife and the delay has caused on account of the non- appearance of the witnesses. When this was pointed out to the counsel for the petitioner, he had submitted that if a date is fixed by this Court, they are prepared to appear before that Court and cooperate with the disposal of the case. So considering the circumstances, the petition is disposed of as follows:
8. The prayer for transfer of the case as claimed in the petition is rejected. The petitioner, his wife and mother, who are C.Ws. 1 to 3 in C.C. No.5311/2010 on the file of the Judicial First Class Magistrate Court, Irinjalakuda are directed to appear before that Court on 07.3.2014. If they appear on that day, the learned Magistrate is directed to complete the examination of these three witnesses, as far as possible on the same day itself.
With the above direction and observation, the petition is disposed of. The office is directed to Transfer Petition (Crl) No. 49 of 2013 7 communicate this order to the concerned Magistrate Court immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE
rka /true copy/