IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 Tr.P(Crl.).No. 100 of 2008() ---------------------------- CC.1288/2008 of ADDL.C.J.M., ERNAKULAM .................... PETITIONER(S): --------------- 1. K.V.BENNY, S I OF POLICE, CENTRAL POLICE STATION, ERNAKULAM. 2. K.LALJI, CIRCLE INSPECTOR OF POLICE, MATTANCHERRY. 3. SUNIL JACOB, ASSISTANT COMMISSIONER OF POLICE, MATTANCHERY, ELANJIKKAL HOUSE, KALAVOOR, MARARIKULAM. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.T.JOSEPH, S/O.K.V.THOMAS, KUZHIKKATTU HOUSE, 50/1772, YUVAJANA SAMAJAM ROAD, KOCHI-20. ADV. SRI.M.AJAY FOR R2 PUBLIC PROSECUTOR SRI.S.U.NAZER THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Tr.P.Crl.No.100 of 2008 ---------------------------------------- Dated this the 10th day of December 2008 O R D E R The petition stands posted for hearing to 17/12/2008 awaiting the report of the learned Additional Chief Judicial Magistrate, Ernakulam. But it is taken up for consideration today at the request of the learned counsel for the respondent. 2. The petitioners are accused 2 to 4 in C.C.No.1288/08 pending before the learned Additional Chief Judicial Magistrate, Ernakulam. Altogether there are four accused in that case. The 1st accused is a private citizen whereas the petitioners herein that is accused 2 to 4 are police officials. Cognizance was taken in that case on the basis of a private complaint filed by the second respondent herein. Cognizance was taken of offences punishable inter alia under Sections 120B, 465, 468 and 471 I.P.C. The petitioners, police officials, had allegedly entered into a conspiracy with the 1st accused for commission of culpable acts in relation to an investigation conducted earlier against the second respondent herein in which the 1st accused was the de facto complainant. Cognizance in C.C.No.1288/08 was taken by Tr.P.C.No100/08. Page numbers the learned Additional Chief Judicial Magistrate, Ernakulam on the basis of a private complaint filed by the second respondent. That cognizance taken was challenged before this court and another Bench of this court by Annexure II order set aside the order taking cognizance. The case was ordered to be transferred from the file of the learned Additional Chief Judicial Magistrate, Ernakulam to that of the learned Chief Judicial Magistrate, Ernakulam. The learned Chief Judicial Magistrate was directed to continue with the proceedings with obligation to conduct an enquiry under Section 202 Cr.P.C. 3. Aggrieved by Annexure II order passed by this court in revision, the second respondent/complainant filed a special leave petition before the Supreme Court. The said petition has been admitted and Annexure III order of stay has been granted. It reads as follows: “Issue notice. Meanwhile there shall be an interim stay of the directions of the High Court.” 4. I have no hesitation to agree that in the light of Annexures II and III orders, propriety demanded that the learned Additional Chief Judicial Magistrate, Ernakulam should not have Tr.P.C.No100/08. Page numbers proceeded further with the matter. I say so because cognizance taken had been set aside by another Bench of this court in revision. Order of transfer also stood stayed by Annexure III order. There was no specific direction to proceed further with the matter. But it appears that the learned Additional Chief Judicial Magistrate felt that there is no impropriety in proceeding with the matter. The learned Additional Chief Judicial Magistrate issued coercive processes against some of the accused. They came before this court complaining about such action by the learned Additional Chief Judicial Magistrate. By similar orders passed in Annexures V and VI, this court took the view that, issue of coercive processes against such accused persons is not justified and directed that the non-bailable warrant issued against such accused shall be withdrawn and they shall be permitted to appear through their counsel before the learned Additional Chief Judicial Magistrate “until the special leave petition is disposed of by the Supreme Court”. 5. It is true that this court did not specifically stay further proceedings in C.C.No.1288/08. But it was felt that the directions eloquently conveyed that the learned A.C.J.M had to wait until Tr.P.C.No100/08. Page numbers further orders were issued by the Supreme Court. 6. The directions in Annexures V and VI, it must be confessed, were not very specific and therefore the learned Additional Chief Judicial Magistrate appears to have entertained an impression that Annexures V and VI orders did not restrain the learned Additional Chief Judicial Magistrate from proceeding with the trial. Notwithstanding the objections raised by the accused persons, the learned Additional Chief Judicial Magistrate proceeded with C.C.No.1288/08. Cognizance was taken of warrant offences on the basis of a private complaint and therefore pre- charge enquiry under Section 244 Cr.P.C had to be conducted. The learned Additional Chief Judicial Magistrate ignoring the objections of the accused persons, started enquiry under Section 244 Cr.P.C and at that juncture, the petitioners herein went before the learned Sessions Judge with an application under Section 408 Cr.P.C to transfer the case to any other court. That application was rejected by the learned Sessions Judge by Annexure IX order. The learned Sessions Judge appears to have felt that there is nothing wrong in the learned Additional Chief Judicial Magistrate proceeding with the enquiry under Section 244 Cr.P.C in the facts Tr.P.C.No100/08. Page numbers and circumstances of this case. Aggrieved by the dismissal of their application under Section 408 Cr.P.C, the petitioners have come to this court under Section 407 Cr.P.C to direct transfer of the case from the file of the learned Additional Chief Judicial Magistrate to any other court of competent jurisdiction. 7. The petitioners have a case that the learned Additional Chief Judicial Magistrate is prejudiced against them and is displaying undue haste in the disposal of the case. It is further submitted that, at any rate, propriety demands that the learned Additional Chief Judicial Magistrate should not proceed with the matter without and before specific directions are issued by the Supreme Court to continue with the trial. It cannot be lost sight of, it is submitted, that the order taking cognizance stands set aside and there is a specific direction - for reasons revealed in Annexure II order, to transfer the case from the file of the learned Additional Chief Judicial Magistrate to that of the learned Chief Judicial Magistrate. 8. The learned counsel for the petitioners submits that Annexure III order passed by the Supreme Court does not reveal that the order setting aside cognizance is stayed. The learned Tr.P.C.No100/08. Page numbers counsel for the petitioner contends that the interim stay applies only against the direction for transfer under Annexure II order. I am unable to accept this contention. I have no hesitation to agree that Annexure II order as such must be held to be stayed by Annexure III order. 9. But, that is far from saying that it would be proper on the part of the learned Additional Chief Judicial Magistrate to proceed with the trial in the case. It can never be lost sight of that another Bench of this court has taken the view that cognizance taken is bad and is liable to be set aside. That Bench has also taken the view that further proceedings must be continued not before the learned Additional Chief Judicial Magistrate but before the learned Chief Judicial Magistrate after transfer. In these circumstances, I have no hesitation whatsoever to agree with the learned counsel for the petitioner that the learned Additional Chief Judicial Magistrate did not serve the interests of propriety in proceeding with the trial. 10. The learned counsel for the second respondent/complainant Sri.Ajay argues that no prejudice whatsoever is likely to result to the petitioner if the trial proceeds. Tr.P.C.No100/08. Page numbers The learned counsel submits that as a matter of fact, the petitioners are influential police officials. They are holding office within the district. They are likely to interfere with the smooth course of justice. This aspect was pointed out to the learned Additional Chief Judicial Magistrate and it is only thereafter the learned Additional Chief Judicial Magistrate felt the need/necessity to proceed with the enquiry under Section 244 Cr.P.C. Further delay in the commencement and progress of the trial would frustrate the attempt of the second respondent in his fight for justice and in these circumstances any delay in the commencement of the trial would only defeat the ends of justice. In these circumstances, the assumed prejudice complained of by the petitioners is non-existent and the transfer petition may be dismissed with specific directions to the learned Magistrate to proceed with the matter and complete the same as expeditiously as possible. 11. The learned counsel for the petitioners stoutly contests the allegations about the attempt to interfere with the course of justice. The learned counsel Sri.Sreekumar points out that the sworn statements of all the witnesses have already been recorded Tr.P.C.No100/08. Page numbers and hence there is no merit in the contention that there is any attempt to influence the witnesses or threaten or coerce them to silence. I find merit in that contention. The learned counsel for the complainant/respondent contends that the sworn statement is recorded only under Sections 200 and 202 Cr.P.C and the worth and value of such statement is qualitatively different from the statements to be recorded under Section 244 Cr.P.C. That point is well taken; but I am unable to agree that it would still be proper for the learned Magistrate to proceed with the trial in the light of the earlier findings and directions of this court and the nature of the order of stay obtained under Annexure III. 12. Though it is alleged that the learned Additional Chief Judicial Magistrate is prejudiced and the petitioners do not expect justice at the hands of the court, I am unable to see any specific circumstance to suggest that the learned Additional Chief Judicial Magistrate is in any way prejudiced against the petitioners. Nothing that has happened after Annexure II order till this date can instill in the minds of this court a satisfaction that the learned Additional Chief Judicial Magistrate is prejudiced and therefore the case deserves to be transferred. An error in correctly identifying Tr.P.C.No100/08. Page numbers proprietus and an improper course consequently followed by a judicial functionary cannot ipso facto lead to any ready and instant conclusions about prejudice or bias on the part of such functionary. 13. I have no hesitation to agree that in the given circumstances either of the party should have sought clear directions from the Supreme Court in the pending Special leave applications whether trial in C.C.No.1288/08 should proceed or not. In spite of Annexures V and VI orders which have been challenged before the Supreme Court and which the Supreme Court has directed to be tagged on with the earlier proceedings in which Annexure III order was passed, neither side has chosen to seek specific directions from the Supreme Court. It is undoubtedly for the Supreme Court to state whether the Supreme Court wants the proceedings to continue or not. Parties must seek specific directions from the Supreme Court. 14. But I reiterate that until such clear directions are obtained from the Supreme Court, it cannot be reckoned to be proper for the learned Magistrate to proceed with the trial. I thought Annexures V and V orders did eloquently convey the impression of this court about the proprieties in the matter. Of Tr.P.C.No100/08. Page numbers course, there were no clear enough directions in them and merely because of the learned Additional Chief Judicial Magistrate has chosen to proceed further with the matter in spite of Annexures V and VI, I am not persuaded to agree that he is interested or prejudiced against the petitioners. But the fact remains that the learned Additional Chief Judicial Magistrate should not proceed with the matter until specific directions are obtained from the Supreme Court to proceed with the matter. In the absence of such directions, propriety demands that the learned Chief Judicial Magistrate must have taken note of the fact that the cognizance taken has been set aside by another Bench of this court. The learned Additional Chief Judicial Magistrate must have taken note of the fact that that Bench has directed that the learned Additional Chief Judicial Magistrate should not proceed with the matter and the matter should go over to another court. The learned Additional Chief Judicial Magistrate must have seen that there is no specific direction in Annexure III order permitting or enabling him to proceed with the trial. Though continuing with the case was not specifically proscribed in Annexures V and VI orders, learned Additional Chief Judicial Magistrate must have been able to go Tr.P.C.No100/08. Page numbers through those judgments to ascertain proprieties in the matter also. 15. In fact, the prayer for transfer need not be considered in detail by this court as I note that already there is an order of transfer and that order of transfer is pending consideration before the Supreme Court in the special leave petition, the Supreme Court will certainly be considering whether the direction for transfer as per Annexure II order is justified or not while disposing of the special leave petition. All these circumstances must have conveyed eloquently that it is not proper for the learned Magistrate to proceed further with the matter. Justice must not only be done; but it must appear to be done also. Every judicial functionary would be well cautioned. 16. I am, in these circumstances, satisfied that the prayer for transfer need not be considered now and at any rate there is no sufficient circumstance after Annexure II order which can justify a further direction for transfer, notwithstanding the want of propriety perceived by me in the course adopted by the learned Additional Chief Judicial Magistrate in proceeding with the matter. But I am satisfied that to avoid any confusion on the subject, it Tr.P.C.No100/08. Page numbers must specifically be directed that further proceedings in C.C.No.1288/08 shall not continue until directions to that effect are sought and obtained by the parties from the Supreme Court. That party who is interested to ensure that the trial is proceeded with, must certainly seek directions from the Supreme Court on this aspect. 17. With the above specific observations/directions, this transfer petition is dismissed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Tr.P.C.No100/08. Page numbers Tr.P.C.No100/08. Page numbers R.BASANT, J R.P.F.C.No. ORDER 11/02/2008