IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 Tr.P(Crl.).No. 11 of 2011() --------------------------- CC.348/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT II,HOSDRUG .................... PETITIONER(S): ------------------------- GEORGE KUTTY,S/O.THOMAS, NJALLANIYIL HOUSE, ANAKKAL PO, KANHIRAPPALLY VILLAGE AND TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): --------------------------- STATE OF KERALA,REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Tr.P(Crl.) No.11 of 2011 ==================================== Dated this the 28th day of February, 2011 O R D E R Petitioner is accused in C.C. No.348 of 2006 of the court of learned Judicial First Class Magistrate-II, Hosdurg for offence punishable under Sec.417 of the Indian Penal Code. That case arose from the final report filed by the vellarikundu police. Allegation is that petitioner cheated the de facto complainant who was already married to another person and on a promise of marriage petitioner had sexual intercourse with her. Prosecution evidence was over and the case was posted for examination of petitioner under Section 313 of the Code of Criminal Procedure (for short, “the Code”) on 12.08.2010 and then on 31.08.2010. Petitioner was questioned under Section 313 of the Code and the case was posted for hearing on 13.09.2010. At that stage, it is alleged that learned Magistrate asked the law officer to file application to reopen the case and produce the DNA test result (obviously to prove paternity of the child born to the de facto complainant). Accordingly the law officer filed C.M.P. Nos.4957 and 4958 of 2010 to reopen the case and receive the DNA test Tr.P(Crl.) No.11 of 2011 -: 2 :- result. It is the grievance of petitioner that even in the absence of the law officer applications were allowed by the learned Magistrate. Petitioner filed Crl.M.P. No.3459 of 2010 in the court of learned Sessions Judge, Kasargod to transfer the case to some other court. That application was dismissed and hence this petition. Learned counsel for petitioner submitted that attempt by producing the DNA test result was to fill up the lacuna in the prosecution case, no investigation in that line was conducted and even the cognizance taken is illegal as offence under Sec.417 of the IPC is a non-cognizable offence on which police could not conduct investigation without order of the Magistrate. It is also pointed out that the circumstances stated in the petition caused a genuine apprehension in the mind of petitioner as to a fair trial. I have heard learned counsel for the petitioner and the learned Public Prosecutor who took notice for the respondent. I have gone through the order of learned Sessions Judge. 2. Learned Sessions Judge has pointed out that though according to the petitioner learned Magistrate on 13.09.2010 directed the law officer to submit appropriate application to reopen the case and produce the DNA test result, records revealed that the law officer had filed the applications on 13.09.2010 itself which shows that the said allegation is not correct. Tr.P(Crl.) No.11 of 2011 -: 3 :- 3. As regards alleged humiliation of counsel for petitioner in the trial court is concerned, learned Sessions Judge observed that there was no such complaint till the case was posted for hearing and that grievance of petitioner arose only when the DNA test result was sought to be introduced in evidence. 4. I am not going into the question whether cognizance taken is legal or otherwise since that is a matter which the learned Magistrate has to consider if raised before him. On going through this petition and the order of learned Sessions Judge, I do not find any substance in the apprehension of petitioner requiring transfer of the case. Learned Magistrate is directed to dispose of the case on its merit. With the above direction this Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv