M.K. THOMAS @ MANTHURUTHIL KURUVILA THOMAS v. MRS. BINU KURIAKOSE and THE STATE OF KERALA

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 ``` ## `TR.P(CRL.) NO. 22 OF 2021` ``` IN CC 225/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - ``` ``` III(MOBILE), ERNAKULAM ``` ## `PETITIONER/ACCUSED:` ``` M.K.THOMAS @ MANTHURUTHIL KURUVILA THOMAS, AGED 35 YEARS, S/O.KURUVILA, A3, EAST AVENUE APARTMENT, SEBASTAINN ROAD, KALOOR P.O., ERNAKULAM, PIN-682017. ``` ``` BY ADVS.M.V.S.NAMPOOTHIRY ASWATHY BOSE(K/003304/2022) DEVIKA. R. KRISHNA(K/000479/2023) ``` ## `RESPONDENTS/COMPLAINANTS AND STATE:` ``` 1MRS.BINU KURIAKOSE A-57, NORTH GIRI NAGAR, GANDHI NAGAR, KADAVANTHRA, ERNAKULAM, PIN-682020. ``` ``` 2THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(Crl)No.22/2021 ``` ``` -:2:- ``` Dated this the 18[th] day of October, 2023 ## **ORDER** The transfer petition is filed under Section 407 of the Code of Criminal Procedure,1973 ( in short, 'Code' ) to transfer C.C.No.225/2017(Annexure-A1) from the Judicial First Class Magistrate Court-III, Ernakulam, to the Judicial First Class Magistrate Court (N.I. Cases), Kochi, before which court C.C. No.2205/2017 (Annexure A-2) is pending. 2. The petitioner has averred in the memorandum of transfer petition that, he is the accused in Annexures-A1 and A2 complaints filed by the first respondent before the above two courts. The parties in the two complaints are the same and the cause of action to file the complaints arise out of the same transaction. Therefore, it is just and expedient ``` Tr.P.(Crl)No.22/2021 ``` ``` -:3:- ``` that the two cases be consolidated and jointly tried by the same court, which would avoid conflict of decisions, multiplicity of proceedings and save precious judicial time. Hence, the transfer petition. 3. Heard; Sri.M.V.S Namputhiri, the learned counsel appearing for the petitioner, on admission. 4. The transfer petition was filed on 07.05.2021. This Court ordered notice before admission to the first respondent and directed further proceedings in Annexure-A1 complaint to be stayed for a month. 5. On going through the transfer petition it is seen that the petitioner desires to transfer Annexure-A1 from the Court of the Judicial First Class Magistrate-III, Ernakulam, to the Court of the Judicial First Class Magistrate Court (N.I.Cases), Kochi. 6. Undisputedly, the above two courts are within the jurisdiction of the Ernakulam Sessions Division and the petitioner has not moved the Court of Session, ``` Tr.P.(Crl)No.22/2021 ``` ``` -:4:- ``` ## Ernakulam, for transfer of AnnexureA1. ## 7. Sub-section (1) & (2) of Section 407 of the Code of Criminal Procedure reads as follows: “407. **Power of High Court to transfer cases and appeals** .—(1) 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 Court 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** ``` Tr.P.(Crl)No.22/2021 ``` ``` -:5:- ``` **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** .” (emphasis given by me) 8. The reading of the proviso to Section407(2) of the Code unambiguously prohibits any interested party from moving this Court for transfer of proceeding from one Criminal Court to another Criminal Court in the same Sessions Division, unless an application for transfer was filed before the Court of Session and the same was rejected. 9. Interpreting the above provision, a Division Bench of this Court in **Surendra Kumar v. Vijayan** [2005(4) KLT 475] has held thus: “12. To sum up, (1) An interested litigant is entitled to invoke S.409 of the Code before the Sessions Judge for the purpose of withdrawing or recalling cases including revisions and appeals already made over to an Additional Sessions Judge, provided the trial or hearing of the cases or revisions or appeals as the case may be, has not commenced. It is an administrative exercise of power by the Sessions Judge. ``` Tr.P.(Crl)No.22/2021 ``` ``` -:6:- ``` (2) An interested litigant is entitled to move the Sessions Judge for transferring cases including revisions and appeals at any stage from the court of an Additional Sessions Judge, if such transfer is expedient for the ends of justice. (3) Unless the litigant thus first moves the Sessions Judge, an application for transfer under S.407 before the High Court is not maintainable. (4) The Additional Sessions Judge concerned is entitled to make a report to the Sessions Judge for transferring any cases including revisions and appeals pending before him irrespective of the stage of such matters.” 10. In the light of the `unambiguous statutory bar and the enunciation of law in **Surendra Kumar** (supra), I have no hesitation to hold that the transfer petition is not maintainable before this Court. The Registry ought not to have numbered the transfer petition. Resultantly, the transfer petition is dismissed, without prejudice to the right of the petitioner to move the competent court under Section 407 of the Code , if so advised. However, as this Court has passed an interim order on 07.05.2021, the same shall continue to ``` Tr.P.(Crl)No.22/2021 ``` ``` -:7:- ``` hold the field for a period of 10 days, to enable the petitioner to work out his remedies, in accordance with law. Sd/- **C.S.DIAS,JUDGE** DST/18.10.23 ``` Tr.P.(Crl)No.22/2021 ``` ``` -:8:- ``` ## `APPENDIX` ``` PETITIONER’S ANNEXURE: ``` ``` ANNEXURE A1TRUE COPY OF THE COMPLAINT DATED 11.07.2017 IN CC NO.225 OF 2017 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, ERNAKULAM. ANNEXURE A2TRUE COPY OF THE COMPLAINT DATED 19.05.2017 IN CC NO.2205 OF 2017 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT(N.I…CASES), KOCHI ``` ``` RESPONDENT’S EXHIBITS: NIL ```