Husband says Metropolitan Magistrate handling DV case biased in wife's favour, seeks case transfer to any other mm court in city !! HC says first transfer petition to be filed with sessions court and ONLY if rejected to approach HC. So this petition is dismissed. Meanwhile it is noted that the said M Magistrate is transferred to some other court so the petition is infructuous
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON'BLE MR.JUSTICE T.MATHIVANAN
Crl.O.P.No.3100 of 2012
3.Alifiya Rangwala .... Petitioners
Sakina ..... Respondent
Prayer : Criminal Original Petition is filed under Section 407 of the Code of Criminal Procedure praying this Court to transfer the case in M.C.No.3 of 2011, from the file of the learned VII Metropolitan Magistrate, George Town, Chennai, to any other learned Magistrate in any other district.
For Petitioners : Mr.Prakash Goklaney
For Respondent : Mr.K.Krishnamurthy
O R D E R
This petition is filed under Section 407 Cr.P.C., seeking the relief of transferring the case in M.C.No.3 of 2011 from the file of the learned VII Metropolitan Magistrate, George Town, Chennai to the file of any other learned Magistrate in any other district.
2. It is manifested from the records that the petitioners have come forward with certain allegations against the learned VII Metropolitan Magistrate, George Town, Chennai and they have contended that the conduct of the learned VII Metropolitan Magistrate has infused bias in their mind, which accelerated them to file this petition to withdraw and transfer the above said case.
3. The respondent herein is the wife of the first petitioner herein Abizar N. Rangwala, whereas the petitioners 2 and 3 are her father-in-law and mother-in-law. It appears that the respondent has filed a complaint in M.C.No.3 of 2011 against the petitioners under Sections 12, 18, 19, 20 and 21 of the Protection of Women from Domestic Violence Act, 2005, on the file of the learned VII Metropolitan Magistrate, George Town, Chennai.
4. Mr.Prakash Goklaney, learned counsel appearing for the petitioners has submitted that throughout the proceedings the learned Metropolitan Magistrate had been showing some bias in favour of the respondent herein. He has also submitted that during the time of enquiry the respondent was sought to file a written submission along with the set of documents, many of which were inadmissible and the respondent was neither an author nor the recipient.
5. Under such circumstance, an objection was raised on behalf of the petitioners pointing out that if the documents were relied upon for any reason, the same should be admitted only in accordance with law. But, without considering the objections raised on behalf of the petitioners, the learned Metropolitan Magistrate had directed the respondent to come to the box and after performing oath of affirmation the documents, which were objected on behalf of the petitioners were admitted as documentary evidences.
6. Thereafter, when the petitioners were sought to cross-examine the respondent pointing out that several of the documents were doctored and several of them inadmissible and many of them required clarifications at the hands of the respondent, surprisingly, the learned Metropolitan Magistrate had refused to grant such opportunity to the petitioners and adjourned the case.
7. Being aggrieved by the procedure followed by the learned Metropolitan Magistrate, the petitioners had filed a petition in Crl.O.P.No.26916 of 2011 before this Court seeking a direction against the Metropolitan Magistrate to act in accordance with law and to provide an opportunity to the petitioners to cross-examine the respondent herein.
8. That petition was allowed by this Court on 02.12.2011 directing the learned VII Metropolitan Magistrate, George Town, Chennai to give an opportunity to the petitioners to cross-examine the respondent and the learned VII Metropolitan Magistrate was also directed to complete the proceedings within a period of 45 days from the date of receipt of a copy of the Order.
9. Despite the direction of this Court as aforestated, the respondent herein was not inclined to co-operate for submitting herself for cross-examination. Thereafter, the learned Metropolitan Magistrate had adjourned the case for about four hearings. The matter was finally posted on 25.01.2012 for cross-examination.
10. Unfortunately, on the said date, the learned counsel for the petitioners was not able to make his presence as he was out of station. A petition under Section 309 Cr.P.C., was also filed on behalf of the petitioners to adjourn the case. But, this petition was not even received by the learned Metropolitan Magistrate and subsequently the case was adjourned with severe warning to complete the cross-examination, otherwise the matter would be closed.
11. Even during the course of such cross-examination, the learned VII Metropolitan Magistrate was pressurising the counsel to complete the cross-examination with the result the cross-examination could not be completed. Thereafter, the matter was adjourned to 30.01.2012 on the said date the learned counsel, who was appearing on behalf of the petitioners had filed two petitions, one under Section 311 Cr.P.C., for recalling the respondent for further cross-examination and the other one was under Section 315 Cr.P.C., seeking permission to examine the petitioner as a witness.
12. Even those petitions were also refused to be received and thereafter the matter was adjourned to 06.02.2012.
13. Mr.Prakash Goklaney, learned counsel for the petitioners has submitted that the attitude of the learned Metropolitan Magistrate has created doubt in the mind of the petitioners that they would not get justice in the above said Court. Hence, they have come forward with this petition seeking the relief of transfer.
14. On the other hand, Mr.K.Krishnamurthy, learned counsel for the respondent has submitted that the petitioners have straight away filed this petition under Section 407(2) Cr.P.C., seeking the relief of transfer of the case from the file of learned VII Metropolitan Magistrate, George Town, Chennai without invoking the jurisdiction of the learned Principal Sessions Judge under Section 408 Cr.P.C.,
15. Mr.K.Krishnamurthy, learned counsel for the respondent has also submitted that under Section 407(2) Cr.P.C., this Court did not have jurisdiction to entertain this petition for transfer. During the course of his argument, he has also made reference to the proviso to sub-section (2) to Section 407 Cr.P.C., which reads as follows:
| (2) The High Court may act either on the report of
| the lower court, or on the application of a party
| interested, or on its own initiative:
| Provided that no application shall lie to the High
| Court for transferring a case from one Criminal Court
| to another Criminal Court in the same sessions
| division, unless an application for such transfer has
| been made to the Sessions Judge and rejected by him.
16. The proviso to Sub-section (2) to Section 407 Cr.P.c., is very clear that if a transfer is sought for in respect of a criminal case from one criminal court to another criminal court within the same sessions division, the person, who seeks transfer shall have to file an application for such relief at first before the Court of session, in whose jurisdiction the Court on whose file the case is pending and only if the application is rejected or dismissed, the person can approach this Court seeking the relief of transfer. But, this procedure has not been followed by the petitioners in this case. Without availing the opportunity of filing of application before the learned Sessions Judge, the petitioners have straight away filed this petition before this Court invoking the Section 407 Cr.P.C., which is not maintainable.
17. The law cannot be circumvented and the High Court having appellate jurisdiction shall have to act as sentinel quivive to circumscribe this sort of practice.
18. As observed herein above, the petitioners have sought the relief of transfer of the proceedings in M.C.No.3 of 2011 from the file of the learned VII Metropolitan Magistrate, George Town, Chennai on the ground of certain allegations against the learned Metropolitan Magistrate. During the course of his arguments, the learned counsel for the respondent has brought to the notice of this Court that this petition has become infructuous as the learned Metropolitan Magistrate against whom certain allegations were made was transferred to some other Court.
19. Considering the submissions made by both the learned counsels as well as the averments made in the affidavit, this Court finds that this petition is liable to be dismissed on the following grounds:
i. This Court, as contemplated under Section 407(2) Cr.P.C., does not have jurisdiction to entertain the petition seeking the relief of transfer of the case in M.C.No.3 of 2011 within the same sessions jurisdiction without opting to file an application for transfer before the concerned Sessions Judge, and
ii. The learned VII Metropolitan Magistrate, George Town, Chennai, against whom certain allegations are levelled has now been transferred to some other Court.
20. In the light of the above facts, this petition is dismissed. The learned VII Metropolitan Magistrate, George Town, Chennai is directed to dispose of the case in M.C.No.3 of 2011, as expeditiously as possible, without getting influenced by the observations made by this Court in this Order. Consequently, connected miscellaneous petitions are closed.
Index : Yes/No
Internet : Yes/No
1.The learned VII Metropolitan Magistrate,
George Town, Chennai.
Crl.O.P.No.3100 of 2012