IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 Crl.MC.No. 1762 of 2008() ------------------------- CC.1070/2007 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... PETITIONER: ACCUSED ------------------- P.SAITHU, S/O.VEERAN, PADINJATTIL VEEDU, 5/220, VADAKKEMADOM COLONY, POTHOKKIPUZHA ROAD, KUMARAMPUTHOOR, MANNARKKAD, PALAKKAD DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI RESPONDENTS: COMPLAINANT & STATE -------------------------------- 1. THE SUB INSPECTOR OF POLICE, CENTRAL POLICE STATION, KOCHI CITY, (CRIME NO.495 OF 2007) 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. * Addl: 3. T.G.N. KUMA.R, S/O. LATE GOPINATHAN NAIR, RESIDING AT 33/3004, ERNAKULAM, KOCHI-682 028. IS IMPLEADED AS ADDL. R3 AS PER ORDER DATED 13/5/08 IN CRL.M.A.NO.2452/08. BY P.P. SRI. GIKKU JACOB. BY ADV. SRI.VAKKOM N.VIJAYAN FOR ADDL.R SMT.V.RENJU FOR ADDL.R SRI.P.ANIYAN FOR ADDL.R THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 1762 of 2008 ------------------------------------------------- Dated this the 21st day of May, 2008 ORDER The petitioner is the accused in a prosecution for the offence punishable under Sec.420 of the IPC. The matter is pending before the learned Additional Chief Judicial Magistrate, Ernakulam. While the said prosecution was pending, the petitioner had approached the learned Sessions Judge for an order transferring the case to any other court of competent jurisdiction. The petitioner had complained about the alleged manner of conduct of the case by the learned Magistrate and submitted that he had lost faith in that court. 2. The learned Sessions Judge by Annexure-A order granted the prayer for transfer. 3. The de facto complainant took the matter before this Court and by order dated 24/3/08 in Crl.M.C.No.3826/07 Crl.M.C. No. 1762 of 2008 -: 2 :- (Annexure-B) the challenge against the order of transfer was turned down by this Court. 4. It is submitted that the de facto complainant, who has got impleaded in this matter as the additional 3rd respondent, has challenged the concurrent orders before the Supreme Court and the Supreme Court is seized of the matter. An order of stay has been passed by the Supreme Court, it is further submitted at the Bar. 5. While the matter rests like that, the learned Additional CJM, Ernakulam, has proceeded with the case and the matter now stands posted for judgment, submits the learned counsel for the petitioner. The learned counsel for the petitioner submits that the learned Sessions Judge and the High Court having already found that the matter deserves to be transferred and the Supreme Court having not specifically directed the disposal of the matter by the learned Additional CJM, it was incorrect, improper and unfair on the part of the learned Additional CJM to proceed further or to prepare to proceed to pronounce judgment in the case. In these circumstances, it is prayed that there may be appropriate directions issued to the learned Magistrate. 6. The additional 3rd respondent opposes the prayer in this Crl.M.C. He submits that the transfer petition is only an attempt Crl.M.C. No. 1762 of 2008 -: 3 :- to delay and protract the proceedings. Only pronouncement of the judgment remains and, in these circumstances, this Crl.M.C. may be dismissed, it is prayed. 7. I have considered all the relevant inputs. I shall not embark on any discussions about the maintainability of the prayer for transfer. The fact remains that the learned Sessions Judge as well as another Bench of this Court have come to the conclusion that the matter deserves to be transferred. It cannot be lost sight of that the Hon'ble Supreme Court has not admittedly issued any specific directions for the disposal of the case. The order of transfer has been stayed, that is all. Though it can technically be contended that consequent to the stay of the order of transfer, nothing restrains the learned Additional CJM and the learned Additional CJM can proceed to dispose of the case, I am certainly of opinion that two courts have already been directed transfer, it is not correct, proper, just or fair for the learned Additional CJM to proceed further in the matter. I am satisfied that the extraordinary inherent jurisdiction under Sec.482 of the Cr.P.C. can and must be invoked by this Court to restrain the learned Additional CJM from proceeding to dispose of C.C.No.1070/07. 8. This Crl.M.C. is accordingly allowed. There shall be a Crl.M.C. No. 1762 of 2008 -: 4 :- direction to the learned Additional CJM, Ernakulam, not to dispose of C.C.No.1070/07. The learned Additional CJM shall wait for the final disposal of the matter pending before the Supreme Court. In the meantime, it shall be open to either parties to seek appropriate directions from the Supreme Court and needless to say, the learned additional CJM shall promptly comply with any further directions that may be issued by the Hon'ble Supreme Court in the matter. 9. This Crl.M.C. is allowed to the above extent. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge