Tr.P.(Crl.) Nos.124/2019, 125/2019 and 126/2019 – K.T. Naseer / K.T. Nazeer v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **Tr.P(Crl.).No.124 OF 2019** **IN THE MATTER OF CMP 1186/2019 OF COURT OF SESSION, KOZHIKODE DIVISION IN KOZHIKODE DISTRICT ON THE FILES OF THE HON'BLE JUDICIAL MAGISTRATE OF FIRST CLASS-VII/SPECIAL JFCM COURT (N.I.ACT CASES) KOZHIKODE** ## **PETITIONER:** **K.T. NASEER AGED 37 YEARS S/O. K.C.MARAKKAR, RESIDING AT KUYYILTHAZHAM HOUSE, MAYANAD P.O., CHELAVOOR, KOZHIKODE DISTRICT,PIN-673 008** **BY ADVS. SRI.J.R.PREM NAVAZ SHRI.SUMEEN S.** ## **RESPONDENT/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,PIN-682 031 2 KOYAMUTTY.C.P., AGED 67 YEARS S/O.HUSSAIN, CHETTUPARAPPURATH HOUSE, CHERUVADI P.O., MAVOOR, KOZHIKODE DISTRICT, PIN-673 661 R2 BY ADV. SRI.SRINATH GIRISH R2 BY ADV. SRI.P.JERIL BABU R2 BY ADV. SRI.B.V.DEEPU** ## **SRI AJITH MURALI-PP** **THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28.01.2020 ALONG WITH Tr.P(Crl.).125/2019, Tr.P(Crl.).126/2019, THE COURT ON 05.02.2020, PASSED THE FOLLOWING:** Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **Tr.P(Crl.).No.125 OF 2019** **IN THE MATTER OF CMP 1184/2019 OF COURT OF SESSION, KOZHIKODE DIVISION IN KOZHIKODE DISTRICT ON THE FILES OF THE HON'BLE JUDICIAL MAGISTRATE OF FIRST CLASS-VII/SPECIAL JFCM COURT (N.I.ACT CASES) KOZHIKODE** ## **PETITIONER:** **K.T.NAZEER AGED 37 YEARS S/O.K.C.MARAKAR, RESIDING AT KUYYILTHAZHAM HOUSE, MAYANAD P.O., CHELAVOOR, KOZHIKODE DISTRICT, PIN- 673008.** **BY ADVS. SRI.J.R.PREM NAVAZ SHRI.SUMEEN S.** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN- 682031.** **2 KOYAMUTTY C.P., AGED 67 YEARS** **S/O.HUSSAIN, CHETTUPARAPPURATH HOUSE, CHERUVADI P.O., MAVOOR, KOZHIKODE DISTRICT, PIN- 673661.** **R2 BY ADV. SRI.SRINATH GIRISH SRI.C.K.PRASAD PP** **THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28.01.2020, ALONG WITH Tr.P(Crl.).124/2019, Tr.P(Crl.).126/2019, THE COURT ON 05.02.2020 PASSED THE FOLLOWING:** Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **Tr.P(Crl.).No.126 OF 2019** **IN THE MATTER OF CMP 1182/2019 OF COURT OF SESSION, KOZHIKODE DIVISION IN KOZHIKODE DISTRICT ON THE FILES OF THE HON'BLE JUDICIAL MAGISTRATE OF FIRST CLASS-VII/SPECIAL JFCM COURT (N.I.ACT CASES) KOZHIKODE** ## **PETITIONER:** **K.T.NAZEER AGED 37 YEARS S/O.K.C.MARAKAR, RESIDING AT KUYYILTHAZHAM HOUSE, MAYANAD.P.O, CHELAVOOR, KOZHIKODE DISTRICT, PIN-673008** **BY ADVS. SRI.J.R.PREM NAVAZ SHRI.SUMEEN S.** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH OCURT OF KERALA, ERNAKULAM, PIN-682031 2 KOYAMUTTY.C.P. AGED 67 YEARS S/O.HUSSAIN, CHETTUPARAPPURATH HOUSE, CHERUVADI.P.O, MAVOOR, KOZHIKODE DISTRICT, PIN673661** **R2 BY ADV. SRI.P.JERIL BABU R2 BY ADV. SRI.B.V.DEEPU SRI.AJITH MURALI PP** **THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28.01.2020, ALONG WITH Tr.P(Crl.).124/2019, Tr.P(Crl.).125/2019, THE COURT ON 05.02.2020 PASSED THE FOLLOWING:** Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 4 ## **R.NARAYANA PISHARADI, J** ************************ Tr.P.(Crl) Nos.124 of 2019, 125 of 2019 and 126 of 2019 -------------------------------------------Dated this the 5[th] day of February, 2020 ## **O R D E R** These applications are filed under Section 407(2) Cr.P.C for transferring the cases S.T.Nos.236/2018, 284/2018 and 514/2018 on the file of the Court of the Judicial First Class Magistrate-VII, Kozhikode (Special Court for the trial of N.I.Act Cases) to any other criminal court having jurisdiction. 2. The petitioner is the accused in the aforesaid cases. The cases are based on the complaints filed against him by the second respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 3. It is stated that the aforesaid cases are being jointly tried by the court below. 4. It is stated in these applications for transfer of cases filed by the petitioner that the learned Magistrate who conducts 5 Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 the trial of the cases has caused obstruction and interference during the cross-examination of the complainant by the accused. It is stated that the learned Magistrate expressed reluctance to record the questions asked to the witness (complaint) by the counsel for the accused and the answers given by the witness. 5. It is stated that the counsel who was appearing for the petitioner in the cases relinquished vakalath and that the petitioner engaged a new lawyer to conduct the cases for him and thereafter, the petitioner requested adjournment of the cases for once. The cases were then adjourned to 10.07.2019. It is alleged that the learned Magistrate passed over the cases on 10.07.2019 and after lunch, it was ordered that the cases shall be adjourned only on payment of costs of Rs.4,000/- to the complainant and thereafter the cases were adjourned to 17.07.2019. It is further alleged that the learned Magistrate refused to record the questions put to the complainant during the cross-examination by the counsel for the accused. 6. Heard learned counsel for the petitioner and also the second respondent/complainant. Perused the report/remarks obtained from the Special Judicial First Class Magistrate (N.I.Act 6 Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 Cases), Kozhikode. 7. In the report dated 13.01.2020 submitted by the learned Magistrate, it is stated that the complainant in the case is a person aged 70 years and he had to wait in the court on 10.07.2019 till 16.00 hours in the evening and even at that time, the counsel who appeared for the accused was not ready to cross-examine him and it was in such circumstances that the cases were adjourned to 17.07.2019 on payment of costs of Rs.4,000/- by the accused. It is further stated that on 17.07.2019, the accused paid costs to the complainant and the counsel for the accused started cross-examination. What happened thereafter is stated in the report of the learned Magistrate as follows: _“When cross-examination proceeded, the learned counsel for the accused put a general question that normally there would be profit and loss in a business. The said question was not recorded on the ground that it was a tricky question and that the answer if any given by the witness either in the affirmative or in the negative will not be relevant to the case in hand. Then the defence counsel has expressed his displeasure to continue the cross-examination. Hence the matter was_ 7 Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 _adjourned to the next day. On the next day, the learned counsel for the accused reported that the application for transferring the above cases to some other court is pending before the Hon'ble Sessions Court, Kozhikode.”_ The learned Magistrate has also reported that the court was not biased against the accused and there was no unnecessary interference made by the court during the cross-examination of the witness by the learned counsel for the accused. 8. At this juncture, it is to be noted that the petitioner had filed applications as Crl.M.P.Nos.1182/2019, 1184/2019 and 1186/2019 before the Court of Session, Kozhikode seeking transfer of the cases from the court of the learned Magistrate. The aforesaid applications were dismissed by the learned Sessions Judge by order dated 06.11.2019. The learned Sessions Judge, in the aforesaid order, has stated as follows: _“On going through the deposition of PW1, it is seen that as stated by the counsel for the accused and also the counsel for the respondent, the question that there will be profit and loss in a business is not seen recorded. Probably, being a general question as has been stated by the learned Magistrate, it might not have been recorded. The other grievance of the learned counsel for the_ Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 8 _petitioner is that the court has put a question as to whether this business was in loss and recorded the same as evidence on his side. On perusing the deposition, it is seen that the last statement is that the above business was run in profit. So, probably, that may be the answer to the question put by the court. Whenever questions are put by the court, it should be recorded as court question and it should be recorded in question and answer form. However, the question is whether that can be taken as a matter to infer prejudice or that the party will not get justice from the court?”_ Thereafter, the learned Sessions Judge proceeded to consider the contentions raised by the parties and answered the above question as follows: _“In this case, the main allegation raised by the counsel for the petitioner is that a specific question put by him was not recorded by the court. As I stated earlier, the question not recorded by the court is that in a business profit and loss would be natural which I have found earlier is not at all a material question and the other fact is that the court put a question and recorded the same as his evidence. I have already stated that if at all it was a question put by the court, it has to be recorded as court question and it should be in question answer form. Anyway, that question or answer by itself is not sufficient to infer any prejudice or that_ Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 9 _justice will not be done in that case by the court. So also, it is to be noted that JFCM-VII, Kozhikode is a special court for the trial of the offence under the Negotiable Instruments Act. The evidence has already been started and the cross-examination also has gone to a certain extent. So, I do not find it expedient to allow the prayer for transfer sought by the petitioner.”_ 10. The second respondent/complainant has filed a detailed counter statement opposing the transfer of cases. Along with the counter statement, the second respondent/complainant has filed a copy of the deposition of PW1 (the complainant). It is seen from this deposition that, when cross-examination of the complainant was conducted on 17.07.2019, after the crossexamination proceeded for some time, the learned counsel for the accused stated before the court below that he was not ready to continue cross-examination and the matter was adjourned. However, the deposition of the witness does not reveal what was the reason for the counsel for the accused to make a statement before the learned Magistrate that he was not ready to continue the cross-examination. The report of the learned Magistrate is that the learned counsel for the accused expressed displeasure to continue the cross-examination. It is not known what was the 10 Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 reason for the displeasure of the counsel. Whatever it may be, considering the fact that the accused has expressed an apprehension that he will not get justice from the court of the learned Magistrate, it is only expedient in the interests of justice, to transfer the cases to another competent court, especially in view of the fact that the order of the learned Sessions Judge reveals the probability that the learned Magistrate has not recorded the questions put to the witness by the court as court questions. 11. Though the second respondent/complainant filed a counter statement opposing the application for transfer of the cases, at the time of hearing, this Court made a query to the counsel for the second respondent whether it would be in the interest of the complainant also to transfer the cases to another court within the same compound of the Court Complex at Kozhikode so that the cases could be disposed of without any delay. Learned counsel then submitted that, if such a course is adopted, he has no objection to the same but a direction may be given to the court to which the cases are being transferred, to dispose of the cases within a time frame. Considering the fact 11 Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 that the complainant is a person aged 70 years, I find that an expeditious disposal of the cases is warranted. 12. This Court is conscious of the fact that an order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. Seeking transfer at the drop of a hat is inconceivable. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice. But, in the instant case, this Court is inclined to order transfer of the cases because it would be in the interest of the complainant also, who is aged 70 years. 13. Before parting, this Court also wants to remind the petitioner/accused that a presiding officer is not a mere recording machine and he/she is not expected to allow totally irrelevant and unnecessary questions put to a witness during the cross examination. If the petitioner has got any such idea, it is better he forgets it. This Court is constrained to make this observation in the light of the allegation that the learned Magistrate did not Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 12 record the question put to the complainant in the crossexamination that “normally there would be profit and loss in a business”. The presiding judge is not expected to be a mute spectator during the trial of a case. Moreover, in order to ascertain the truth, he can ask any question to a witness, whether "relevant or irrelevant" (See **State of Rajasthan v. Ani : AIR 1997 SC 1023** ). But, the questions put to a witness by the court have to be recorded as court questions and the deposition of the witness shall reflect it. 14. In the result, the applications are allowed. The cases S.T.Nos.236/2018, 284/2018 and 514/2018 on the file of the Court of the Judicial First Class Magistrate-VII, Kozhikode (Special Court for the trial of N.I.Act Cases) are transferred to the Court of the Chief Judicial Magistrate, Kozhikode. The petitioner as well as the second respondent shall appear before the Court of the Chief Judicial Magistrate, Kozhikode on 24.02.2020. The learned Chief Judicial Magistrate shall continue the trial of the cases from the stage at which they stand now and dispose of them in accordance with law, within a period of three months from the aforesaid date. It is made clear that, no Tr.P.(Crl) No.124/2019, 13 125/2019 & 126/2019 de novo trial of the cases, is ordered. The Judicial First Class Magistrate-VII, Kozhikode shall forthwith forward the records of the three cases to the Chief Judicial Magistrate, Kozhikode. The petitioner/accused shall co-operate with the trial of the cases. Learned Chief Judicial Magistrate shall ensure that unnecessary adjournment of the cases shall not be granted at the request of the accused. 15. It is made clear that, by passing this order for transfer of cases, this Court has not accepted or approved any aspersion made against the learned Magistrate by the petitioner. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr 14 125/2019 & 126/2019 Tr.P.(Crl) No.124/2019, ## **APPENDIX OF Tr.P(Crl.) 124/2019** ## **PETITIONER'S EXHIBITS:** **ANNEXURE-A1** **THE TRUE COPY OF THE COMPLAINT IN ST NO.236 OF 2018 FILED BY THE 2ND RESPONDENT HON'BLE JUDICIAL MAGISTRATE OF FIRST CLASS- VII/SPECIAL JFCM COURT (N.I.ACT CASES) KOZHIKODE** ## **ANNEXURE-A2** **THE TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 408 OF THE CASE OF CRIMINAL PROCEDURE SEEKING TRANSFER OF S.T.NO.236 OF 2018** **ANNEXURE-A3 THE TRUE COPY OF THE COMMON ORDER DATED 06.11.2019 IN CMP NO.1186 OF 2019, PASSED BY THE COURT OF SESSION KOZHIKODE DIVISION, IN KOZHIKODE DISTRICT** RESPONDENTS' EXHIBITS: NIL Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 15 ## **APPENDIX OF Tr.P(Crl.) 125/2019** **PETITIONER'S EXHIBITS:** **ANNEXURE A1** **THE TRUE COPY OF THE COMPLAINT IN ST NO.284 OF 2018 FILED BY THE 2ND RESPONDENT HON'BLE JUDICIAL MAGISTRATE OF FIRST CLASS-VII/SPECIAL JFCM COURT (N.I.ACT CASES) KOZHIKODE.** ## **ANNEXURE A2** **THE TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 408 OF THE CODE OF CRIMINAL PROCEDURE SEEKING TRANSFER OF S.T.NO.284 OF 2018.** ## **ANNEXURE A3** **THE TRUE COPY OF THE COMMON ORDER DATED 06.11.2019 IN CMP NO.1184 OF 2019, PASSED BY THE COURT OF SESSION KOZHIKODE DIVISION IN KOZHIKODE DISTRICT.** RESPONDENTS' EXHIBITS: NIL Tr.P.(Crl) No.124/2019, 125/2019 & 126/2019 16 ## **APPENDIX OF Tr.P(Crl.) 126/2019** **PETITIONER'S EXHIBITS:** **ANNEXURE A1** **THE TRUE COPY OF THE COMPLAINT IN ST NO.514 OF 2018 FILED BY THE 2ND RESPONDENT HON'BLE JUDICIAL MAGISTRATE OF FIRST CLASS-VII/SPECIAL JFCM COURT(N.I ACT CASES) KOZHIKODE** **ANNEXURE A2 THE TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 408 OF THE CODE OF CRIMINAL PROCEDURE SEEKING TRANSFER OF ST. NO.514/2018** **ANNEXURE A3 THE TRUE COPY OF THE COMMON ORDER DATED 06.11.2019 IN CMP NO.1182 OF 2019, PASSED BY THE COURT OF SESSIONS KOZHIKODE DIVISION IN KOZHIKODE DISTRICT** **RESPONDENTS' EXHIBITS:** **EXHIBIT R2(1) TRUE COPY OF THE DEPOSITION OF 2ND RESPONDENT /PW1** True Copy P S to Judge