SREEJITH AND ORS. Vs. STATE OF KERALA

JUDGEMENT

(1.) The interesting question involved is whether an appeal is maintainable in terms of Sec. 5(i) of the Kerala High Court Act, against an order of a single Judge, dismissing the petition filed under Sec. 407 of the Cr.P.C. seeking for transfer of a criminal case pending before a Magistrate's Court to another Magistrate's court in a different district. It is contended as maintainable with reference to the law declared by a Full Bench of this Court reported in : 2005(4)KLT 865 (Balan v/s. Sivagiri Sree Narayana Dharma Sanghom Trust) holding that, appeal is maintainable in respect of an order passed by a Single Judge in exercise of the powers under Sec. 24 of the CPC (similar power for transfer), which principle is sought to be applied in the given case as well.

(2.) The basic facts required for effective adjudication of this case are that, the appellants were proceeded against by the police, registering as many as 27 crimes in different police stations in the five northern districts of Kerala -namely Kasaragodu, Kannur, Wynad, Kozhikode and Malappuram, involving the offence of theft under Sec. 379 IPC read with Sec. 34 therein. The case of the appellants is that they are totally innocent and are working in various capacities as bus drivers, bus conductors and door checkers in the buses plying in the routes Ernakulam -Thodupuzha and Ernakulam -Idukki; and that they find it extremely difficult to appear before the concerned courts in connection with each case on different dates, seriously affecting their livelihood; besides causing such other hardships. In the said circumstance, they filed petitions for transfer of the concerned cases pending before the Judicial First Class Magistrate's Court, Koothuparamba to the Chief Judicial Magistrate's Court Ernakulam or Chief Judicial Magistrate's Court, Thodupzha, by way of different Transfer Petitions (Crl.). In the instant case, it was in respect of C.C. No. 1793 of 2013 (arising from Crime No. 737 of 2013 of Koothuparamba Police station). The above petition, along with similar petitions, such as Tr. P. (Crl.) Nos. 66 and 68 of 2015(in respect of different cases/crimes) were considered together and the learned single Judge, vide order dated 01.09.2015 declined interference, holding that it would not be just and convenient in the interest of justice to allow the relief. Accordingly, the Transfer Petitions were dismissed; however leaving it open to the petitioners to move the concerned court for the benefit of Sec. 219(1) of the Cr.P.C., i.e. to club three crimes together, if they have arisen within the preceding 12 months, as specified. The said order is under challenge in this appeal, mainly contending that the actual facts and circumstances have not been adverted to by the learned single Judge and that no reason has been stated in the order, which hence is liable to be intercepted by this Court.

(3.) Before examining the merits of the case, it has become necessary to consider whether the appeal itself is maintainable in view of the doubt expressed by the Registry noting the defects. The appeal was directed to be numbered as per the order dated 30.11.2015 in view of the ruling of the Full Bench cited on behalf of the appellants in the decision reported in ( : 2005 (4) KLT 865) (cited supra), however making it clear that all issues including the maintainability will be considered in the due course.