K. Packiyaraj vs S. Muthu Pandi and State

R. Mala, J.—The Petitioner has approached this Court with a prayer to transfer the Calendar Case No. 12 of 2006 on the file of the Additional District Munsif-cum-Judicial Magistrate, Manamadurai, to any other criminal Court, out of Sivagangai Sessions Division and stay the further proceedings and dispense with the personal appearance of the Petitioner till the disposal of this main petition.

The Petitioner is an accused in C.C. No. 12 of 2006 on the file of the Additional District Munsif-cum-Judicial magistrate, Manamadurai. The marriage between the Petitioner and the deceased Thavamari was performed on 21.03.2003 and she deserted herself from the matrimonial home on 02.04.2003 without any reason. The Petitioner has also issued two legal notices to come back to matrimonial home and then he filed a petition in H.M.O.P. No. 87 of 2003 before III Additional Subordinate Court, Madurai, for restitution of conjugal rights. On 14.02.2004, she ended her life by self-immolation and hence, the Petitioner was cited as an accused in S.C. No. 139 of 2005 for the offence u/s 304B IPC, which is pending before the learned Assistant Sessions Judge, Sivagangai.

The learned Counsel appearing for the Petitioner submitted that the Petitioner''s brother-in-law, one Muthu Pandi, who is the 1st Respondent herein, is a practising Advocate in Manamadurai and he lodged a complaint for the offences under Sections 120B, 188, 406, 417, 420 and 424 IPC, which has been registered in Crime No. 6 of 2005 and the same was closed as ''mistake of fact'' on 24.12.2005. Aggrieved by the same, the first Respondent herein has filed a complaint before the learned Additional District Munsif-cum-Judicial Magistrate, Manamadurai, invoking the provisions of Section 156(3) Code of Criminal Procedure, for recovery of "Sridhana" property of 120 grams of gold jewels, which was taken cognizance and numbered as C.C. No. 12 of 2006. When the Petitioner appeared before the Court, the first Respondent has filed a transfer petition before the Principal Sessions Judge, Sivagangai, to try the case in C.C. No. 12 of 2006, along with the case in S.C. No. 139 of 2005, pending before the learned Assistant Sessions Judge, Sivagangai, and the said transfer petition was dismissed in Crl.M.P. No. 351 of 2007 on 30.6.2008.

Learned Counsel for the Petitioner further submitted that since the first Respondent is a practising Advocate in Manamadurai, no one would come to defend the Petitioner and hence, he engaged an Advocate from Madurai District to defend him, but the first Respondent is continuously threatening him not to attend the proceedings, and hence, he filed a petition u/s 317 Code of Criminal Procedure to condone his absence as he is very scared to attend the proceedings and he also has grave apprehension in his mind that there could not be a fair trial as there is no chance for defending himself in C.C. No. 12 of 2006 on the file of the Additional District Munsif-cum-Judicial Magistrate, Manamadurai and hence, the Petitioner has come forward with this Crl.O.P. to transfer the case in C.C. No. 12 of 2006 from the file of the Additional District Munsif-cum-Judicial Magistrate, Manamadurai, to the file of any other criminal court in Sivagangai Sessions Division.

The first Respondent, who is an Advocate, appeared as party-in-person and filed a counter affidavit, wherein, he has stated that he has no objection to try both the cases in Assistant Sessions Court, Sivagangai. He further stated that the accused in the case u/s 304B IPC, demanded 100 sovereigns of jewels, car, etc., and that during the R.D.O. enquiry, he fairly accepted that he was ready to return the property, but till now, he has not produced the same. Since the jewels of the deceased were not produced, the first Respondent preferred a complaint and the allegations of the Petitioners are false. The Petitioner/accused is not entitled to transfer the criminal case to another division. However, C.C. No. 12 of 2006 can be transferred to Assistant Sessions Judge, Sivagangai and hence, he prayed for dismissal of the Crl.O.P.

Considering the rival submissions made on either side, admittedly, the Petitioner is an accused in S.C. No. 139 of 2005, which is pending before the learned Assistant Sessions Judge-cum-Subordinate Judge, Sivagangai. Even though the marriage between the Petitioner and the deceased was performed on 21.03.2003, as per the version of the Petitioner, the deceased left the matrimonial home on 02.04.2003 and died by self-immolation on 14.12.2004. During the enquiry of R.D.O., the Petitioner admitted that the jewels are with him, but he has not returned the same. In such circumstances, the first Respondent herein preferred a complaint and on the basis of the said complaint, a case has been registered, which was subsequently taken cognizance in C.C. No. 12 of 2006 by the learned Additional District Munsif-cum-Judicial Magistrate, Manamadurai, for the offences under Sections 120B, 188, 406, 417, 420 and 424 IPC, for recovery of "Sridhana" property of 120 grams of jewels.

It is pertinent to note that the first Respondent herein has filed a petition in Cr.M.P. No. 351 of 2007 before the Principal Sessions Judge, Sivagangai, to transfer the case in C.C. No. 12 of 2006, pending before the learned Additional District Munsif-cum-Judicial Magistrate, Manamadurai, for joint trial with S.C. No. 139 of 2005, pending before the learned Assistant Sessions Judge-cum-Subordinate Judge, Sivaganagi, and the said Transfer Petition had been dismissed. But, the Petitioner has not preferred any revision against the said dismissal order.

Now, this Court has to decide as to whether the Petitioner is entitled to transfer the case in C.C. No. 12 of 2006 from the file of the Additional District Munsif-cum-Judicial Magistrate''s Court, Manamadurai, to any other court in Sivagangai Sessions Division. The learned Counsel appearing for the Petitioner has relied upon a decision of this Court in the case of "Additional District Judge-cum-Chief Judicial Magistrate, Kanyakumari at Nagercoil, In re" reported in (2002) M.L.J. 946, wherein this Court ordered for transfer of a case and in the facts of that case, the trial Court has given a valid reason that the accused was a practising Advocate of the same Court and prayed for transfer of the case to any other Court outside the District and the report of the lower Court seeking for transfer was reasonable.

In the present case, as per the version of the Petitioner, the first Respondent is a practising Advocate of Manamadurai. So considering the same, this is a fit and proper case to transfer C.C. No. 12 of 2006 from the file of the Court of Additional District Munsif-cum-Judicial Magistrate, Manamadurai to any other Court.

The first Respondent-party-in-person relied upon the decision of Punjab and Haryana High Court in the case of Ram Rattan Vs. State of Haryana and Others, , wherein, it has been held as follows:

A perusal of Sub-section 1 and Sub-section 2 of Section 210 of the Act, shows that the policy of the Code aims at avoiding the conflict between the investigation to be carried by the police on the basis of an FIR or an enquiry to be initiated by the Magistrate by taking cognizance of the offences alleged to have been committed by an accused on the basis of a complaint. The proceedings in the complaint are required to be stayed by the Magistrate or he can refer the complaint u/s 156(3) to the police. However, in case the police report has been submitted and a complaint has been filed in respect of the same offence then under Sub-section 2 of Section 210 the Magistrate is under obligation to order trial of both the cases together. When the facts of the instant case are examined in the light of the mandate of Section 210 of the Code, it becomes evident that occurrence in both the cases is same and allegations are also similar. Therefore, complaint case pending in the Court of Judicial Magistrate First Class need to be transferred and heard along with the Sessions Case.

But, the above citation is not applicable to the facts of the present case. In the present case, the Sessions Case in S.C. No. 139 of 2005 is pending in respect of the offence u/s 304B, IPC, which has taken place on 14.02.2004. But, the case in C.C. No. 12 of 2006 is pending in respect of return of "Sridhana" property. So, this is not a fit case for clubbing both the abovesaid cases together and hence, the argument of the learned Counsel for the Petitioner for transfer of the case in C.C. No. 12 o 2006, does not merit acceptance.

As per the above decision reported in 2002 M.L.J. 946 (cited supra), relied upon by the learned Counsel appearing for the Petitioner, since the first Respondent is a practising Advocate of Manamadurai, I think this is a fit case to transfer the case in C.C. No. 12 of 2006 from the file of the Court of Additional District Munsif-cum-Judicial Magistrate, Manamadurai, to the file of the Court of Judicial Magistrate No. 1, Sivagangai, and no prejudice will be caused to either party.

Accordingly:

(i) C.C. No. 12 of 2006, now pending on the file of the Additional District Munsif-cum-Judicial Magistrate''s Court, Manamadurai, is ordered to be transferred to the file of the Court of Judicial Magistrate No. 1, Sivagangai;

(ii) The learned Judicial Magistrate No. 1, Sivagangai, is directed to dispose of the case in accordance with law, expeditiously.

(iii) This Crl.O.P. is disposed of in the above terms.

(iv) Consequently, connected miscellaneous petitions are closed.