## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MRS. JUSTICE MARY JOSEPH**
**FRIDAY, THE 15TH DAY OF APRIL 2016/26TH CHAITHRA, 1938**
## **Tr.P(Crl.).No. 32 of 2016 ()**
**----------------------------IN M.C.NO.1/2012 ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM**
**----------------------------------------------------------**
## **PETITIONER(S):**
**------------------------**
**DR.THOMAS, AGED 48 YEARS, S/O P.T.OUSEPH, PATHIPARAMBAN HOUSE, KORATTY, MURINGOOR P.O. PIN 680 309 CHALAKUDY, THRISSUR DISTRICT NOW RESIDING AT CROWN 12 B, TRINITY FLAT, EDAPPALLY KOCHI - 682 025**
**BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN.H. SMT.A.ANJANA SMT.K.S.SMITHA SMT.V.S.SANGEETHA**
## **RESPONDENT(S)/ COMPLAINANT & STATE :**
**------------------------------------------------------------------**
**1. MRS.NADINE, AGED 38 YEARS, W/O THOMAS “CROWN” FLAT NO.12-B, TRINITY FLAT, EDAPPALLY P.O. KOCHI - 680 025**
**2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, SESSIONS COURT, ERNAKULAM 682 011**
**R1 BY ADV. SRI.K.LAKSHMINARAYANAN ADV. SMT.SATHYA SHREEPRIYA R2 BY PUBLIC PLEADER SRI.GITHESH**
**THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 15-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**VS**
## **Tr.P(Crl.).No. 32 of 2016 () ------------------------------------**
## **APPENDIX**
## **PETITIONER EXHIBITS :**
**------------------------------------**
**EXT.P1 TRUE COPY OF THE M.C.NO.1/2012 ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM EXT.P2 TRUE COPY OF THE ORDER DATED 26.02.2014 MADE IN CMP NO.998/2014 IN M.C.NO.1/2012 PASSED BY THE CJM COURT, ERNAKULAM EXT.P3 TRUE COPY OF THE ORDER DATED 09.12.2014 PASSED IN CRL.APPEAL NO.173/2014 BEFORE THE DISTRICT AND SESSIONS COURT. EXT.P4 TRUE COPY OF THE ORDER DATED 05.10.2015 MADE CRL.R.P.2207/14 OF THE HIGHT COURT OF KERALA EXT.P5 TRUE COPY OF THE ORDER DATED 09.11.2015 MADE IN CMP.NO.998/2014 IN M.C.NO.1/2012 BY THE CJM COURT, ERNAKULAM EXT.P6 TRUE COPY OF THE ORDER DATED 09.12.2015 MADE IN CMP.NO.3842/2014 IN M.C.NO.1/2012 BY THE CJM COURT, ERNAKULAM EXT.P7 TRUE COPY OF THE ORDER DATED 04.02.2016 MADE IN CMP NO.4182/2014 IN M.C.NO.1/2012 PASSED BY THE CJM COURT, ERNAKULAM EXT.P8 TRUE COPY OF THE ORDER DATED 17.03.2016 MADE IN CMP NO.936(A)/ 2016 IN C.C.NO.17/2016 REFILED FROM MC NO.1/2012 BY THE CJM, ERNAKULAM EXT.P9 TRUE COPY OF THE ORDER 21.03.2016 MADE IN CMP NO.936(b)2016 IN MC.NO.1/2012 BY THE CJM COURT EXT.P10 TRUE COPY OF THE ORDER DATED 30.03.2016 PASSED IN CMP NO.1057/2016 IN M.C.NO.1/2012 BY THE CJM COURT, ERNAKULAM EXT.P11 TRUE COPY OF THE CERTIFICATE ISSUED BY THE MANAGER ALHADEEKA SPECIALIZED MEDICAL COMPLEX AT SALALAH IN SULTANATE OF OMAN ON 25.01.2016**
**RESPONDENT(S)' EXHIBITS : NIL -------------------------------------------**
**/TRUE COPY/ PA TO JUDGE**
**VS**
## MARY JOSEPH, J.
============== Tr.P (Crl.)No.32 of 2016 ================== Dated this the 15[th ] day of April, 2016
## O R D E R
The crucial question came up for consideration before this Court is “whether the Transfer Original Petition(Crl.) filed under Section 407 of the Code of Criminal Procedure (for short 'the Code') before this court is maintainable?'
2. The petitioner in this petition is the respondent in M.C.No.1/2012 pending on the files of the C.J.M. and the 1[st] respondent herein is the wife of the petitioner and it is at her instance that M.C.No.1/2012 was filed. The true copy of the M.C. is appended along with as Ext.P1.
3. M.C.No.1/2012 was filed under Section 19, r/w Section 23 of the Protection of Women from Domestic Violence Act (for short 'the Act').
4. Petitioner was working at Al Hadeeka specialised medical complex at Salalah in Sultanate of Oman and on account of his frequent taking of leave to attend various cases filed by the respondent against him, he lost his job there on 25.01.2016.
Tr.P (Crl.)No.32 of 2016
-2-
5. It is contended that the Chief Judicial Magistrate is prejudicial to him and has been passing adverse orders against him, copies of which are appended with this petition as Exts.P2, P5 and P10.
7. It is also contended that the entire allegations of the petitioner in the M.C. revolve around incidents said to have happened at Trinity 4C Apartments at Edappally, within the jurisdiction of Judicial First Class Magistrate Court, Aluva originally and now under the jurisdiction of Judicial First Class Magistrate Court, Kalamassery and therefore, the CJM Court has no jurisdiction.
8. Urging those grounds as the basis that the petitioner has come up before this Court seeking for a transfer of M.C.No.1/2012 pending on the files of the CJM Court, Ernakulam to any other court of competent jurisdiction in exercise of the powers vested on this Court under Section 407 of the Code.
9. Sri.C.Hariharan, who laid vakalath for the petitioner and Sri.Githesh, who represents the sole respondent State were heard.
10. In the backdrop of the contention put forth, it is apposite to quote Section 407 of the code hereunder.
“407. Power of High Court to transfer cases and appeals-- (1)
Tr.P (Crl.)No.32 of 2016
-3-
Whenever it is made to appear to the High Court --
- (a) that a fair and 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,
it may order--
- (i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
- (ii) that any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Cort of equal or superior jurisdiction;
- (iii)that any particular case be committed for trial to a Court of Session;
or
- (iv)that any particular case or appeal be transferred to and tried before itself.
(2) 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:
Provided 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.
(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least-twenty-four hours have elapsed between the giving of such notice
Tr.P (Crl.)No.32 of 2016
-4-
and the hearing of the application.
(6) Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under Section 309.
(7) Where an application for an order under subsection (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197.”
11. A cursory look at the first proviso to Section 407 would show that the invocation of this Court's power by a litigant can only be after the relief being sought before a Court of Session and rejected by the said court. Unless and until an applicant seeking transfer is made before the court of Session and an order is passed by that court, in rejection of the prayer, this Court cannot assume jurisdiction under Section 407 of the Code.
12. The proviso in unambiguous terms incorporates in it an embargo for a petitioner in the quest for a transfer of a case from
Tr.P (Crl.)No.32 of 2016 -5-
one jurisdiction to another jurisdiction that he shall not approach this Court without his claim for transfer being raised before a Court of Session and rejected by the same. It is clear from the averments in the petition that he has approached this Court at the first instance itself without his grievance being raised before the Court of Session, Ernakulam to which the Chief Judicial Magistrate is subordinate.
13. The learned counsel appearing for the first respondent also opposed the application on the ground of its nonmaintainability. She has drawn my attention to Surendra Kumar v. Vijayan reported in 2005 (4) KLT 475 to substantiate her contention.
14. In the decision cited supra, in answer to a reference placed before the Division Bench, whether a litigant could approach the High Court under Section 407 of the Code seeking transfer of a case from one court to another in the Sessions division without exhausting his remedy before the Sessions Court under Section 408 or 409 of the Code, the court answered in the negative and held that an application to transfer under Section 407 before the High Court is not maintainable unless the litigant first moves for the
Tr.P (Crl.)No.32 of 2016 -6-
remedy before the Sessions Judge.
In the case on hand, the petitioner straightaway approached this Court under Section 407 of the Code without his remedy under Section 408 and 409 of the Code, being exhausted and therefore, this application is not maintainable.
In the result, the Transfer Petition is dismissed with liberty reserved to the petitioner to approach the court of Session and to seek his remedy.
Sd/MARY JOSEPH, JUDGE
MJL
