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.