A. Zahariah Jeyakumar and Others vs S. Sundar Singh and Others

M.M. Sundresh, J—The Criminal Original Petition (MD) Nos. 23229 of 2014 and 1216 of 2015 have been filed seeking transfer of S.T.C. No. 194 of 2014 pending on the file of Judicial Magistrate, Padmanabhapuram to any other Court. The Criminal Original Petition (MD) No. 19352 of 2014 has been filed to quash the said proceedings.

Heard learned counsel on either side and perused the records.

There is a dispute between the parties regarding running of the diocese. The first petitioner/A2 in Crl.O.P.(MD) No. 23229 of 2014 was working as the Principal of Christhuva Nursing College, Kanyakumari District at the relevant point of time and petitioner/A1 in Crl.O.P.(MD) No. 19352 of 2014 and 1216 of 2015 is her husband. The defacto complainant was functioning as the Correspondent of the College at the relevant point of time. The allegation against the petitioners is that A1 drove the vehicle and A2 and A3 distributed pamphlets containing defamatory statements against the defacto complainant.

A1 has sought for quashment on the grounds that even as per the complaint he was driving the vehicle. The complaint is very vague. The author of the printing material has not been identified.

So far as the transfer petitions are concerned it is stated that the situation is very hostile and harsh treatment was given to them during the hearings. The defacto complainant/respondent is a member of the local Bar. None of the Bar Members come forward to appear for them. They openly declare that they will not appear for them and also will not permit anybody from other Bar to appear for them. Even the witnesses are lawyers. Therefore, in the interest of justice and in order to have a fair trial the case will have to be transferred.

Learned counsel for the petitioners in support of their contentions have made reliance on the following judgments:

(i) Fajlor Rahman @ Mohamod Fajloo @ Raju and Others Vs. State of Punjab and Another, (2006) CriLJ 3281 : (2006) 4 SCALE 195 : (2006) 9 SCC 714 .

(ii) State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 : (1992) CriLJ 527 : (1990) 4 JT 650 : (1990) 2 SCALE 1066 : (1992) 1 SCC 335 Supp : (1990) 3 SCR 259 Supp .

(iii) Deepak Shukla Vs. Smt. Savita Shukla, (2003) CriLJ 4020 : (2003) 2 DMC 30 : (2002) 5 MPHT 534 : (2003) 2 MPJR 172 : (2002) 4 MPLJ 544 .

(iv) Gulshan Malik Vs. State of U.P., (2002) CriLJ 668 : (2002) 1 DMC 787 .

(v) M.S. Prakasa Rao Vs. State of Andhra Pradesh, (1988) 1 APLJ 242 : (1987) CriLJ 24 .

Learned counsel for the respondent/defacto complainant would submit that the submissions made are bordering on facts, which have to be proved by the respondent/defacto complainant before the Court. The allegations made in the complaint are very specific that all the three accused went in the car and pamphlets have been distributed. Mere exercise of distribution of pamphlets by A2 and A3 will not absolve A1 from the active role played by him. It is not correct to state that no advocate is appearing for the petitioners. Merely because the respondent/defacto complainant is a lawyer, there is no need for transferring the case. Hence, these Criminal Original Petitions are liable to be dismissed.

The question as to whether the transfer has to be effected or not have to be decided on the factual situations. The Courts will have to see whether the trial will be fair or otherwise. The fact that the respondent/defacto complainant is a practising lawyer having put in 20 years of service is not disputed. The fact that two witnesses are lawyers is also not disputed. What is to be seen is the reasonable apprehension on the part of the accused persons. Considering the facts and circumstances of the case, this Court is of the view that not only in the interest of the accused but also in the interest of the respondent/defacto complainant the case will have to be transferred to some other Court. Otherwise, it will cause embarrassment to the respondent/defacto complainant.

Insofar as the petition filed in Crl.O.P.(MD) No. 19352 of 2014, seeking to quash the proceedings is concerned, as rightly submitted by the learned counsel for the respondent/defacto complainant this Court while exercising the powers under Section 482 Cr.P.C. will not venture into the factual aspects. It is for the respondent/defacto complainant to prove his case. Admittedly, there is a pamphlet, based on which the complaint has been lodged. Therefore, this Court is not inclined to exercise its inherent powers.

Accordingly, Criminal Original Petition (MD) No. 19352 of 2014 is dismissed. Crl.O.P.(MD) Nos. 23229 of 2014 and 1216 of 2015 are hereby allowed. Consequently, the case in S.T.C. No. 194 of 2014 is directed to be transferred to the Court of Judicial Magistrate, Valliyoor, Tirunelveli District for disposal in accordance with law. Learned Judicial Magistrate, Valliyoor is directed to undertake the said exercise within a period of four weeks from the date of receipt of a copy of this order. After the transfer is effected, learned Judicial Magistrate, Valliyoor is directed to issue notice to the parties for their appearance. It is made clear that the transferee Court shall proceed with the case on merits and in accordance with law without being influenced by any of the observations made by this Court. It is also made clear that the petitioners need not appear before the Judicial Magistrate, Padmanabhapuram forthwith. Consequently, connected Miscellaneous Petitions are closed.