IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(Crl.).No. 63 of 2009()
1. SASIKUMAR @ SASI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.B.KRISHNA MANI
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/05/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Tr.P(Crl.)No.63 OF 2009
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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.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006