IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Tr.P(Crl.).No. 63 of 2009() ------------------------------------- CC.NO.368/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II, NEYYATTINKARA ................ PETITIONER(S): PETITIONER: ---------------------------------------------- SASIKUMAR @ SASI, SREEVILASAM VEEDU, NEDIYAMCODE, MEKKOLLA DESOM, KOLLAYIL VILLAGE. BY ADV. MR.B.KRISHNA MANI RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, PARASALA, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.APPL.NO.2812/2009 IN Tr.P(Crl.)63/2009 DISMISSED 22/05/2009 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== Tr.P(Crl.)No.63 OF 2009 =========================== Dated this the 23rd day of May,2009 ORDER Petitioner is the accused in C.C.368/2007 on the file of Judicial First Class Magistrate Court II, Neyyattinkara. When the case was posted for questioning under section 313 of Code of Criminal Procedure, petitioner filed Crl.M.P.1210/2009 before Sessions Court, Thiruvananthapuram. Annexure-I is the copy of the said petition filed under section 408 of Code of Criminal Procedure for transfer. It is alleged in the petition that the complainant in that case is the Principal of N.S.S College and though he is the uncle of the petitioner, they are on inimical terms in respect of family properties and Judicial First Class Magistrate is showing undue interest in the case and the counsel was absent at the time of recording the Tr.P(Crl) 63/2009 2 evidence and it is understood that the Magistrate was a student of the complainant and personally known to him. Petitioner also stated that at the time of cross examination of witness on 28.4.2009 a photostat copy of report was sought to be marked which was objected and as the original was not found the case was adjourned and on the adjourned day a report styled as original was produced which was marked as exhibit. When the counsel for the petitioner started cross examining the witness challenging the veracity of the document, learned Magistrate intervened whether this is the only case for trial and the case was posted for questioning under section 313. According to petitioner, he does not expect a fair decision from the Magistrate and therefore the case is to be transferred. 2. In view of the allegations raised against the Magistrate, learned Sessions Judge called for remarks from the Magistrate. The Magistrate has denied all the allegations. The learned Sessions Tr.P(Crl) 63/2009 3 Judge in the light of the remarks and the allegations raised by the petitioner, after hearing his counsel dismissed it under Annexure A2 order. This petition is filed for transfer contending that the petitioner will not get justice from the learned Magistrate. 3. Learned counsel appearing for the petitioner vehemently argued that all the allegations raised by the petitioner in Annexure A1 petition was not met in Annexure A2 order and petitioner is entitled to get a fair trial which is denied consequent to the refusal to transfer and so the case is to be transferred to any other court at Neyyattinkara and hence transfer may be ordered. 4. On hearing the learned counsel and going through the reasoned order passed by the Sessions Judge, I find no reason to order transfer. As stated by the Sessions Judge, if the case of the petitioner was that he did not get proper Tr.P(Crl) 63/2009 4 opportunity to cross examine the witness, he could have filed an application to recall the witness for the purpose of further cross examination. Inspite of the opportunity granted, petitioner has not moved the learned Magistrate. If a case is to be transferred by raising such baseless allegations, lower judiciary cannot function. I find no reason to transfer the case as sought for. Petition is dismissed. Petitioner is entitled to challenge the judgment of the trial court, if it goes against him and in that event he is entitled to raise all the contentions raised herein also. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006