Kerala High CourtMohammed Ashraf.K.T vs N.P.Fousiyabi on 27 May, 2008IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

                  THE HONOURABLE MR. JUSTICE A.M.BABU

     SATURDAY, THE 17TH DAY OF DECEMBER 2016/26TH AGRAHAYANA, 1938

                     Tr.P(Crl.).No. 97 of 2015 ()
                     -----------------------------

   CC 342/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM

PETITIONER(S)/PETITIONERS/ACCUSED:
---------------------------------

          1. MOHAMMED ASHRAF.K.T., AGED 43 YEARS
            S/O.MOHAMMED MUSALIAR,RAHMANIYA MANZIL,
            KOLOTH THEYYIL HOUSE, KADAKKATTUPARA,
            THENHIPALAM.P.O,MALAPPURAM DISTRICT.

          2. MOHAMMED MUSALIAR, AGED 80 YEARS
            S/O.KUNJIKAMMU,RAHMANIYA MANZIL,
            KOLOTH THEYYIL HOUSE,KADAKKATTUPARA,
            THENHIPALAM.P.O,MALAPPURAM DISTRICT.

          3. NABEESA, aged 68 YEARS
            W/O.MOHAMMED MUSALIAR,RAHMANIYA MANZIL,
            KOLOTH THEYYIL HOUSE,KADAKKATTUPARA,
            THENHIPALAM.P.O,MALAPPURAM DISTRICT.

          4. JAFAR, 36 YEARS,
            S/O MOHAMMED MUSALIAR, RAHMANIYA MANZIL,
            KOLOTH THEYYIL HOUSE, KADAKKATTUPARA,
            THENHIPALAM.P.O, MALAPPURAM DISTRICT.

            BY ADV. SRI.ESM.KABEER

RESPONDENT(S)/RESPONDENT:
-------------------------

          1. N.P.FOUSIYABI, AGED 41 YEARS
            D/O.POCKAR HAJI,NEDUMPARAMBIL HOUSE,
            KOLAMBAN QUARTERS,POTTIPARA,EDARIKODU.P.O,
            MALAPPURAM DISTRICT.

          2. STATE OF KERALA,
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA,ERNAKULAM.

            R BY PUBLIC PROSECUTOR SMT. SHEEBA

       THIS TRANSFER PETITION (CRIMINAL)  HAVING BEEN FINALLY HEARD ON
       17-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Tr.P(Crl.).No. 97 of 2015


                                APPENDIX


PETITIONER'S EXHIBITS
----------------------

ANNEXURE-A1 : TRUE COPY OF THE FIR IN CRIME NO.529/2007 REGISTERED BY
THE KOTTAKKAL POLICE ON 5.12.2007.


ANNEXURE -A2 : TRUE COPY OF THE COMMON ORDER IN O.P. NO.37/2008 AND
M.C.No.51/2008 OF THE FAMILY COURT, MALAPPURAM DATED 27.5.2008.

RESPONDENT'S EXHIBITS
--------------------

     NIL



                                A. M. BABU, J
           --------------------------------------------------------------
                        Tr.P(Crl). No. 97 of 2015
          ---------------------------------------------------------------
            Dated this the 17th day of December, 2016


                                   O R D E RC.C. No.342 of 2008 is pending before the Court of the

Judicial Magistrate of the First Class, Malappuram.                       The first

petitioner is the husband of the first respondent.                       The other

petitioners are the relatives of the husband.2. Petitioners are alleged to have committed an offence

punishable underSection 498 Aof the IPC. The prayer in the

petition is to transfer CC. No.342 of 2008 from the file of the

Judicial Magistrate of the First Class, Malappuram to the Court of

the Judicial Magistrate of the First Class at Parappanangadi or

Tirur.3. Heard the learned counsel for the petitioners and the

learned Public Prosecutor.4. There are allegations against the learned Magistrate in

whose Court C.C. No.342 of 2008 is pending. It is alleged that

the learned Magistrate always insists on to settle the dispute by

paying 6,00,000/- to the first respondent by the petitioners.Tr.P(Crl).97/15                2The convenience of the petitioners to reach the Court at

Parappanangadi or Tirur is also raised as a ground.5.     I am afraid, the petition is not maintainable. The

request is to transfer the case from a court to another court in

the same sessions division, namely, Manjeri. Admittedly the

petitioners did not move any application before the learned

Sessions Judge, Manjeri to get the case transferred from one

court to another court in the same sessions division.6. The proviso tosection 407 (2)of the Cr.P.C provides

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.

Since no application has been made before the Sessions Judge

requesting to transfer the case, the present petition is hit by

the proviso to sub section (2) ofSection 407of the Cr.P.C. The

petition is therefore liable to be dismissed.7. Learned counsel for the petitioner submits that it may

be made clear that the dismissal of this petitions will not affect

the right of the petitioners to move the learned Sessions Judge

to get the case transferred. I accept the request.Tr.P(Crl).97/15             3In the result, the transfer petition is dismissed as not

maintainable. The dismissal of the petition will not stand in the

way of the petitioners filing appropriate application before the

learned Sessions Judge for the transfer of the case.Sd/-A. M. Babu,
                                                Judge


sou.19/12.