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A.S. Dileep vs Simi on 4 January, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

FRIDAY, THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940

Tr.P(Crl.).No. 109 of 2018

AGAINST THE ORDER/JUDGMENT IN CC 345/2017 of J.M.F.C – III
(TEMPORARY SPECIAL COURT),KOLLAM

PETITIONER/S:

A.S. DILEEP, 48 YEARS,
S/O ABOOBAKER, ABU BUILDING,
PUTHUKULANGARA WARD,
UZHAMALAKKAL, NEDUMANGAD,
THIRUVANANTHAPURAM, PIN-695541.

BY ADV. MARIAN G. THARAKAN

RESPONDENT/S:

1 SIMI, D/O KAMAUNEE BEEVI,
ANUPAMA, LEKSHAMINADA, ANCHALAMOODU,
KOLLAM, PIN-691013

2 ABOOBAKER, 73 YEARS,
ABU BUILDINGS, PUTHUKULANGARA WARD,
UZHAMALAKKAL, NEDUMANGAD,
THIRUVANANTHAPURAM, PIN-695541.

3 SAHIRA BEEVI, 65 YEARS, ABU BUILDINGS,
PUTHUKULANGARA WARD, UZHAMALAKKAL, NEDUMANGAD,
THIRUVANANTHAPURAM,PIN-695541.

4 PRADEEP, S/O.ABOOBAKER, 48 YEARS,
ABU BUILDINGS, PUTHUKULANGARA WARD, UZHAMALAKKAL,
NEDUMANGAD, THIRUVANANTHAPURAM,PIN-695541.

BY ADV. SRI.R.S.KALKURA

THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
04.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
TR.P(CRL.) : 109/2018 2

ORDER

The petitioner herein is the 1 st accused in C.C. No. 345 of 2017

on the file of the Judicial First Class Magistrate-III (Temporary),

Anandavaleeswaram. The said proceeding had originated based on

a complaint filed by the 1st respondent herein, who is the wife of the

petitioner. The respondents 2 to 4 are the near relatives of the

petitioner and they have been arrayed as accused Nos. 2 to 4 in the

above case. They face accusation of having committed offence

punishable under Section 498A r/w Section 34 of the IPC.

2. By this petition filed under Section 407 of the Cr.P.C., the

petitioner seeks transfer of the said proceeding to any Magistrate

Court at Thiruvananthapuram.

3. According to the petitioner, he was assaulted by the 1 st

respondent and her associates, on 11.8.2014, while he was on his

way to attend the Family Court, Kollam and based on the

information furnished by him, Crime No.1236 of 2014 was

registered, inter alia, under Section 323 of the IPC. It is submitted
TR.P(CRL.) : 109/2018 3

that there is a reasonable possibility of physical abuse if he appears

before the learned Magistrate, Kollam. He further contends that he

is working as a temporary employee in the KSRTC and if he is

forced to avail leave, for attending the court proceedings, it would

adversely affect his job. The petitioner would also highlight the

inconvenience that is likely to be caused to the accused Nos. 2 to 4

if they are made to come down to Kollam to contest the

proceedings. He also cites the numerous cases registered against

him and his family members by the 1 st respondent and the counsel

appearing for her before the courts at Kollam.

4. Opposing the prayer, the learned counsel appearing for

the 1st respondent submitted that injustice of an irreparable variety

would be caused to the 1st respondent, if she is made to travel to

Trivandrum which is about 80 kms. away from Kollam to prosecute

a complaint lodged by her against her husband and relatives for

committing matrimonial cruelty. It is further submitted that the

criminal proceedings which is sought to be transferred had

commenced in the year 2007 and the same was pending before the

Judicial Magistrate of the First Class-II, Kollam. It was after making

over the case to the JFMC-III that it was re-numbered as C.C.

No.343 of 2017. It is further submitted that he had earlier filed O.P
TR.P(CRL.) : 109/2018 4

No.233 of 2006 before the Family Court, Nedumangad and this

Court had transferred the same to the Family Court, Kollam, on an

application filed by the 1st respondent. The said case was tried by

the Family Court, Kollam along with O.S. No.4 of 2006 and the same

was disposed of on 28.02.2017. The petitioner had also filed a

petition under the Guardian and Wards Act before the Family Court,

Nedumangad and the said matter was also transferred to the Family

Court, Kollam based on an application filed by the 1 st respondent. It

is submitted by the learned counsel that the 1 st respondent has

already been examined before court and the delay in approaching

this Court shows that there is no bona fides. At no point of time

earlier, had the petitioner raised a contention that he apprehends

physical assault. It is further submitted by the learned counsel that

1st respondent is the mother of two children and she is the one, who

is taking care of their welfare and education. She has an aged

mother to support and her financial condition is such that she would

be subjected to gross hardship, if the criminal proceedings are

transferred to Trivandrum. The learned counsel would finally

submit that the Sessions case registered at the instance of the

petitioner has ended in acquittal and most of the cases detailed by

the petitioner in his petition have reached its logical conclusion.
TR.P(CRL.) : 109/2018 5

5. I have considered the submissions advanced.

6. The criminal case, which is sought to be transferred, has

been pending in the Magistrate Court, Kollam from the year 2007.

Various proceedings initiated by the petitioner before the Family

Court at Nedumangad were transferred by this Court at the

instance of the 1st respondent to the Family Court at Kollam. The

ground that the safety of the petitioner would be jeopardy, if the

case is not transferred, appears to a nebulous ground for

transferring the case. As rightly submitted by the learned counsel

appearing for the 1st respondent, no such apprehension was raised

by the petitioner at any point of time earlier, though the

proceedings have been pending before the Magistrate Court for

over a decade. The connected matters pending before the Family

Court were disposed of only on 28.02.2017 which would show that

there is no merit in the prayer sought for in this petition. Except

the general allegations of non availability of congenial atmosphere

and the apprehension of injury, no other cogent grounds have been

raised by the petitioner. The apprehension expressed appears to be

fanciful and imaginary. If the aged parents of the petitioner has any

difficulty in appearing before the court, they can apply for

exemption before the learned Magistrate which will definitely be
TR.P(CRL.) : 109/2018 6

considered by the court below on its merits.

I find no merit in this petition and the same will stand

dismissed.

SD/-

RAJA VIJAYARAGHAVAN V.,
JUDGE
krj

//TRUE COPY// P.A. TO JUDGE
TR.P(CRL.) : 109/2018 7

APPENDIX
PETITIONER’S/S EXHIBITS:

ANNEXURE A A TRUE COPY OF C.C.NO.345/17 BEFORE THE
HONOURABLE TEMPORARY MAGISTRATE COURT,
ANANDAVALLESHWARAM, KOLLAM.

ANNEXURE B A TRUE COPY OF THE REFER CHARGE SHEET IN
CR.NO,2/98 OF KOLLAM WEST POLICE STATION.

ANNEXURE C A TRUE COPY OF FIR NO.1236 DATED
12.8.2014 AT KOLLAM WEST POLICE STATION.

ANNEXURE D A TRUE COPY OF THE WOUND CERTIFICATE
ISSUED BY THE MEDICAL OFFICER OF THE
DISTRICT HOSPITAL, KOLLAM.

ANNEXURE E A TRUE COPY OF PETITIONER’S ID CARD
ISSUED BY KSRTC.

ANNEXURE F A TRUE COPY OF THE ORDER PASSED BY THE
JUDICIAL FIRST CLASS MAGISTRATE ,
KATTAKADA DATED 23.1.2010.

ANNEXURE G A TRUE COPY OF THE ORDERS PASSED IN
WPC.N.5475/2006.

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