IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 Tr.P(Crl.).No. 2 of 2008() -------------------------- CC.761/2007 of J.M.F.C.-II, ALUVA .................... PETITIONER: ------------ MRS.SHEMI SUSHIL, D/O.V.CHANDRAN, AGED 25 YEARS, VANDANAM, HOUSE NO.28/2676, THONDAYAD, NELLIKKODE AMSOM AND DESOM, KOZHZIKODE TALUK. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA RESPONDENTS: ------------- 1. SUSHIL GOPINATH, AGED 35 YEARS, S/O.T.GOPINAHAN, PEEVEES VILLAS, NANDIKULAGARA,OPP.SREEKRISHNA TEMPLE, NORTH PARAVOOR, ERNAKULAM DISTRICT. 2. MRS.SOBHA GOPINATH, AGED 58 YEARS, W/O.T.GOPINATHAN, PEEVEES VILLAS, NANDIKULAGARA,OPP.SREEKRISHNA TEMPLE, NORTH PARAVOOR, ERNAKULAM DISTRICT. 3. GEENA GOPINATH, D/O.T.GOPINATH, AGED 32 YEARS, PEEVEES VILLAS, NANDIKULAGARA,OPP.SREEKRISHNA TEMPLE, NORTH PARAVOOR, ERNAKULAM DISTRICT. 4. THE SUB INSPECTOR OF POLICE, KALAMASSERY POLICE STATION. BY ADV. SRI.P.SANJAY FOR R1TO3 SRI.A.PARVATHI MENON FOR R1TO3 PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ T.P.(Crl.). No.2 of 2008 ------------------------------------- Dated this the 17th day of June, 2008 ORDER The petitioner in this Tr.P.C is the defacto complainant in a prosecution launched under Section 498 A I.P.C. The said proceedings were initiated on the basis of a complaint filed by the petitioner before the learned Judicial Magistrate of the First Class, Kunnamangalam. The learned Magistrate had referred the complaint to the police under Section 156(3) Cr.P.C. Crime was registered at the Medical College Police Station, where the petitioner was residing at the time when she made the complaint. In the complaint various allegations of matrimonial cruelty of the culpable variety were raised. Allegations were raised about the culpable indiscretion committed by the husband of the petitioner at the matrimonial home at North Parur, at the family house of the petitioner at Azhiyoor in Kozhikode district as also of torture inflicted on her through telephonic conversation when she was residing within the jurisdiction of the Judicial Magistrate of the First Class, Kunnamangalam. 2. The crime was registered. Investigation commenced at the Medical College Police Station. Later the police on coming to T.P.(Crl.). No.2 of 2008 2 know that matrimonial cruelty was inflicted within the jurisdiction of the Magistrate at North Parur, the case was transferred to the North Parur Police Station. When the case diary was received there, it was realised that the matrimonial home of the petitioner was situated within the jurisdiction of the court at Judicial Magistrate of the First Class at Aluva and it was Kalamassery police who had jurisdiction to investigate. Accordingly the case was transferred for continuation of investigation to the Kalamassery Police Station. They re-registered the crime. They have completed the investigation and filed final report before the Judicial Magistrate of the First Class-II, Aluva. The petitioner who is separated from her husband is residing now with her parents at Kozhikode along with her infant child. There were matrimonial proceedings between the parties and on an application of the petitioner, the proceedings were transferred to the Family Court at Kozhikode. The petitioner has come to this Court now with this application for transfer pleading that she will be put to considerable inconvenience, harassment and embarrassment if the trial were to be held before the court at Aluva. The counsel points out that the allegations raised in the complaint do reveal that culpable overt acts were committed not exclusively within T.P.(Crl.). No.2 of 2008 3 the jurisdiction of Kalamassery but within the jurisdiction of the Court at Kozhikode district, within the jurisdiction of which Azhiyoor comes. According to the petitioner part of the cause of action had also arisen within the jurisdiction of Medical College Police station. In these circumstances, it is contended that the case pending before the Judicial Magistrate of the First Class-II, Aluva may be transferred to any court in Kozhikode to facilitate easy and convenient disposal. Not transferring the case would result in serious prejudice and hardship to the petitioner, a helpless separated wife living along with her infant child at Kozhikode. The petitioner wants steps to be taken to engage her own counsel and assist the prosecution and in these circumstances it is prayed that if the case were to continue at Aluva, she will not be able to get her grievance redressed satisfactorily. The learned counsel for the petitioner further submits that all witnesses except the Investigating Officer hail from the area within the jurisdiction of courts at Kozhikode. It is, in these circumstances, prayed that the transfer may be directed as prayed for. 4. The application is stoutly opposed by the learned counsel for the respondents. There are 3 respondents/accused. T.P.(Crl.). No.2 of 2008 4 The 1st respondent is the husband of the petitioner. Petitioners 2 and 3, ie. Accused 2 and 3, are the mother and sister of the 1st respondent. The learned counsel for the respondents submits that there is absolutely no justification in the prayer for transfer. A careful analysis of the allegations raised in the complaint filed by the petitioner herself would show that no part of the cause of action had arisen within the jurisdiction of Medical College police station. Just to vex and harass the respondents, the petitioner had lodged the complaint there. In any view of the matter, the prayer for transfer may not be allowed. The 2nd and 3rd petitioners are also women and dragging them to the court at Kozhikode is absolutely unnecessary, submits the learned counsel for the respondents. 5. I have considered all the relevant inputs. I take note of the position of the petitioner in life. She is a separated wife who is continuing to reside along with her parents with her infant child about 3 ½ years. I take note of the assertion, which assertion appears to be justified from the details of witnesses shown in the memorandum of evidence that most of the witnesses do hail from the Kozhikode district. I further take note of the fact that even admittedly specific allegations have been raised about the alleged T.P.(Crl.). No.2 of 2008 5 matrimonial cruelty both within the jurisdiction of the Kalamassery Police Station as also at Azhiyur in Kozhikode district. I am not embarking on the controversy as to whether there is any specific allegation of cruelty within the jurisdiction of the Judicial Magistrate of the First Class, Kunnamangalam but without any dispute there are allegations of matrimonial cruelty both at Azhiyur in Kozhikode as also in Kalamassery in Ernakulam. I do further take note of the fact that the matrimonial proceedings were transferred to the court at Kozhikode by this Court earlier. 6. I am, in these circumstances, satisfied that the prayer for transfer is reasonable and the same can be allowed. I do take note of the fact that respondents 2 and 3 are women. They have already appeared before the Magistrate at Aluva. In these circumstances, I am satisfied that a direction can be issued that the personal appearance of respondents 2 and 3 should not be insisted by the court at Kozhikode unless their presence be absolutely necessary for further progress of the case. Their applications for exemption from personal appearance must be considered liberally by the learned Magistrate in the peculiar facts and circumstances of this case. T.P.(Crl.). No.2 of 2008 6 7. In the result, this Tr.P.C is allowed subject to the above observations/directions. C.C.761 of 2007 pending before the Judicial Magistrate of the First Class-II, Aluva is transferred to the court of the C.J.M, Kozhikode. Judicial Magistrate of the First Class-II, Aluva shall forthwith transmit the records to the learned C.J.M and the parties shall appear before the learned C.J.M, Kozhikode on 28.07.08 without waiting for any further directions. The learned C.J.M as stated earlier must ensure that the personal presence of respondents 2 and 3 is not insisted except on compelling reasons for the proper further progress of the case. The learned C.J.M must also endeavour to immediately take up the case for trial and complete the trial as expeditiously as possible. 8. Communicate the order to both Courts. (R.BASANT, JUDGE) rtr/-