IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.Nos.16979 to 16987 of 2006 and M.P.Nos.1,1,1,1,1,1,1,1 and 1 of 2006 P.Murugesan ...Petitioner in all -Vs- 1.State by Inspector of Police Attur Police Station, Salem District. .. 1st Respondent in all 2.M.R.Sundaram .. 2nd Respondents in Crl.OP.No.16979/06 and Sole Respondent in 16982/06 3.S.Senthil Kumar ... 3rd Respondents in Crl.O.P.No.16979/06 & Sole Respondent in 16985/06 4.Sundaram .. 4th Respondents in Crl.O.P.No.16979/06 & Sole Respondent in 16987/06 5.S.Raja .. 5 th Respondents in Crl.O.P.No.16979/06 & Sole Respondent in 16986/06 6.Vasantha Kumar ..6th Respondents in Crl.O.P.No.16979/06 & Sole Respondent in 16984/06 7.R.Devadass ..7th Respondents in Crl.O.P.No.16979/06 & Sole Respondent in 16981/06 8.Jagan Mohan .. 8th Respondents in Crl.O.P.No.16979/06 & Sole Respondent in 16980/06 9.K.Chellappan ..Respondent in Crl.OP.No.16983/06 https://hcservices.ecourts.gov.in/hcservices/ Crl.O.P.No.16979,16781,16782, 16783 and 16785 of 2006: Criminal Original Petition filed under Section 482 of Criminal Procedure Code to withdraw the C.C.Nos.1547/2005, 79/2006, 26/2006, 8/2006, 25/2006 pending before the Judicial Magistrate No.1, Attur and transfer the same to Judicial Magistrate Court, Rasipuram. Crl.O.P.No.16980 and 16987 of 2006: Criminal Original Petition filed under Section 482 of Criminal Procedure Code to withdraw the C.C.No.53/2006, 50/2006 pending before the Judicial Magistrate Court, Perambalur and transfer the same to Judicial Magistrate Court, Rasipuram. Crl.O.P.No.16984 of 2006: Criminal Original Petition filed under Section 482 of Criminal Procedure Code to withdraw the C.C.No.42/2006 pending before the Judicial Magistrate Court IV, Salem and transfer the same to Judicial Magistrate Court, Rasipuram. Crl.O.P.No.16986 of 2006: Criminal Original Petition filed under Section 482 of Criminal Procedure Code to withdraw the C.C.No.125/2006 pending before the Judicial Magistrate Court, Pondicherry and transfer the same to Judicial Magistrate Court, Rasipuram. For Petitioner in all : Mr.R.Nalliyappan For Respondent 1 : Mr.N.Kumanan in WP.16979/06 Government Advocate (Crl.Side) For Respondents No.2 in Crl.Op.No.16979/06 & 1st Respondent in Crl.Op.No.16982/06 : Mr.T.Murugamanickam Respondent 4th & 1st Respondent in Crl.O.P.No 16979 & 16987/06 : M/s.Devaraj Mahesh Respondent No.5 & 1st Respondent in Crl.Op.No.16979 & 16986/06 : Mr.R.Babu Respondent in Crl.Op.No.16983/06 : Mr.A.K.Kumarasan C O M M O N O R D E R As the petitioner/accused is common in all these petitions and the same question is raised for consideration therein, they can be disposed of by a common order. https://hcservices.ecourts.gov.in/hcservices/ 2.The petitioner in the Criminal Original Petitions has sought transfer of the cases pending against him in different Courts to the Court of learned Judicial Magistrate, Rasipuram. 3.The petitioner is facing prosecution for offences under Section 138 of the Negotiable Instruments Act (hereinafter referred as Act) in as many as eight cases and before five different Courts. The contention of the petitioner is that in the course of business dealings, he had issued ten blank cheques to one M.R.Sundaram, a politician. The petitioner would convert tapioca provided by such person to starch, for which service the said person would pay him his charges. Towards securing the interests of M.R.Sundaram who placed the tapioca under the charge of the petitioner, the blank cheques had been issued. M.R.Sundaram refused to effect payment for the services carried out by the petitioner, engaged henchmen and threatened the petitioner. He also threatened the petitioner to wrongfully present the cheques for payment. The petitioner had preferred a police complaint on 28.11.2005 with the Attur Police Station who being under the political influence of the wrong doer had not registered the case. Hence, the petitioner has filed a private complaint in C.C.No.1547 of 2005 before the learned Judicial Magistrate, Attur. 4.The petitioner informs that the cheques held by M.R.Sundaram had been misused to reflect the position that the petitioner had issued the cheques to several persons and on the strength of such abuse, the various complaints for offence under Section 138 of the Act have been filed against him. In such circumstances, the petitioner has sought transfer of the cases under the Act pending against him as also the complaint case filed by him before the learned Judicial Magistrate I, Attur to the Court of the learned Judicial Magistrate, Rasipuram. 5.The learned counsel for the petitioner submits that Section 483 empowers this Court to exercise powers of superintendence over proceedings of lower Courts and when in the circumstances put forth, an apparent abuse of process could be found, this Court would exercise powers thereunder towards arriving at justice. 6.The learned counsel for the petitioner stresses that which is above stated in support of the petition. 7.The learned counsel for the respondent on the other hand draws the attention of this Court to Section 407 of the Criminal Procedure Code which reads as follows: "Power of High Court to transfer cases and appeals (1)Whenever it is made to appear to the High Court (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or https://hcservices.ecourts.gov.in/hcservices/ (b)that some question of law of unusual difficulty is likely to arise; or (c)that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order - (i)that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii)that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii)that any particular case be committed for trial to a Court of Session; or (iv)that any particular case or appeal be transferred to and tried before itself. (2)The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3)Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation. (4)When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub- section (7). (5)Ever accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6)Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court's power of remand under section https://hcservices.ecourts.gov.in/hcservices/ 309. (7)Where an application for an order under sub-section (1) is dismissed, the High Court may, it is is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8)When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9)Nothing in this section shall be deemed to affect any order of Government under section 197." 8.The learned counsel submits that Section 407(3) of the Criminal Procedure Code specifically requires that every application seeking an order for transfer of cases should be made by motion which must be supported by an affidavit or affirmation, the only exception being when the application is that of the Advocate General of the State. The said provision is mandatory and has been held to be so in decision of the Delhi High Court in Suresh Kumar v. State and others 1981 Crl.L.J.928 The learned counsel submits that in the instant case, the transfer has been sought on the strength of petitions moved by the counsel. The same offended provisions of Section 407(3) of the Criminal Procedure Code and on this sole ground, the petition ought to be dismissed. 9. I have considered the rival submissions. 10.The power conferred under Section 483 of the Criminal Procedure Code on this Court is towards ensuring the expeditious and proper disposal of cases by Magistrates. Such power would extend to examining the correctness, legality or propriety of any finding, sentence or order, recorded or passed as also regularity of the proceedings of all inferior criminal courts as has been held in decision in Krishnan and another v. Krishnaveni and another (1997) 4 Supreme Court Cases 241, relied upon by the learned counsel for the petitioner. Such power cannot extend to cases such as the present one wherein what is questioned is not the act or conduct of the lower Court in proceedings before it but one where conduct of parties to the case is questioned. Section 407 (3) Cr.P.C. lays down a specific requisite that the application for transfer shall be supported by an affidavit or affirmation. Such provision is in unequivocal terms and is mandatory. Powers under Section 482 of the Criminal Procedure Code can be exercised when there are specific provisions covering a particular matter. In the above circumstances, this Court is bound to accept the contention of the learned counsel for the respondent. https://hcservices.ecourts.gov.in/hcservices/ 11.Accordingly, the Criminal Original Petitions shall stand dismissed. Consequently, the connected miscellaneous petitions are closed. 12.However, it is seen that these Criminal Original Petitions have been pending before this Court from the year 2006. The same are not being disposed of on merits but on the non- maintainability thereof in the present form. Hence, this Court would afford liberty to the petitioner to move a fresh petition in keeping with the requisites of Section 407 (3) of the Criminal Procedure Code. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar gm To 1.The Judicial Magistrate No.1, Attur 2.The Judicial Magistrate Court, Perambalur 3.The Judicial Magistrate Court IV, Salem 4.The Judicial Magistrate Court, Pondicherry + 1 cc to Mr.R.Nalliyappan,Advocate,SR.10837 + 1 cc to Mr.T.Murugamanickam,Advocate,SR.11094 + 1 cc to Mr.Devaraj Mahesh,Advocate,SR.11096 + 1 cc to Mr.R.Babu,Advocate,SR.11095 + 1 cc to Mr.A.K.Kumarasan,Advocate,SR.11093 Crl.O.P.Nos.16979 to 16987 of 2006 and M.P.Nos.1,1,1,1,1,1,1,1 and 1 of 2006 RSM(CO) EM/2.3.10 https://hcservices.ecourts.gov.in/hcservices/