Allowed

Moncy P.Alexander v. State of Kerala

Kerala HC2 Dec 2020Tr.P(Crl.)/16/2019

Case brief

AI extract

What is this about?

The High Court transferred a criminal case involving offences under IPC sections 143, 147, 188, 353, 333 from the Sessions Court, Thodupuzha to the Additional Sessions Court, Muvattupuzha. The transfer was ordered due to the petitioner's apprehension of threats and trial sabotage given that the MLA-accused was a powerful local figure.

What did the court decide?

Transfer of S.C.No.685 of 2017 from Sessions Court, Thodupuzha to Additional Sessions Court/MACT, Muvattupuzha with direction to dispose within four months.

Moncy P.Alexander Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942

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Tr.P(Crl.).No.16 OF 2019

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AGAINST THE ORDER/JUDGMENT IN SC 685/2017 OF SESSIONS COURT, THODUPUZHA

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CRIME NO.219/2015 OF Peruvanthanam Police Station, Idukki

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PETITIONER/DEFACTO COMPLAINANT:

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MONCY P.ALEXANDER, AGED 54 YEARS S/O.K.V.CHANDY, PARAYIL HOUSE, POOVANTHURUTHU, KOTTYAM.

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BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)

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RESPONDENTS/STATE/ACCUSED NOS.1 TO 52:

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1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031(CRIME NO.101/CR/2015 OF CBCID HHWII, SUB UNIT, KOTTAYAM, ORIGINALLY REGISTERED AS CRIME NO.219/2015 OF PERUVANTHANAM POLICE STATION, IDUKKI DISTRICT).

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2 E.S.BIJIMOL PANTHALOOPARAMBIL, BENGLALOW PADI, ELAPPARA P.O., IDUKKI DISTRICT - 685 501.

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3 CHANDRA BABU

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PERROR HOUSE, KAPPAKKAYAM, IDUKKI DISTRICT.

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4 M.T.THOMAS MUDANILKUNNATHIL, PEERMADE VILLAGE, KUTTIKKANAM, IDUKKI DISTRICT - 685 531.

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5 BENNY PERUVANTHANAM TRTTIPPALLIL HOUSE, MURINJAPUZHA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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6 SAKEER HUSSAIN PARAKKAL KIZAKETHIL HOUSE, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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7 SHAJAHAN MADATHIL HOUSE, PERUVANTHANAM, IDUKKI DISTRICT - 685 532.

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8 JOSEPH SHAJI OZHAKKOTTAYIL HOUSE, THEKKEMALA, PERUVANTHANNAM VILLAGE, IDUKKI DISTRICT - 685 532.

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9 CHACKO VARGHESE PULLAT HOUSE, THEKKEMALA, PERUVATHANAM, IDUKKI DISTRICT - 685 532.

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10 ROY JOSEPH MUTHUPLAKAL HOUSE, THEKKEMALA, IDUKKI DISTRICT.

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11 UDEESH RAJAMANA HOUSE, THEKKEMALA, VALLIYANKAVU, IDUKKI DISTRICT.

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12 SUDHAKARAN PONGANPARA HOUSE, THEKKEMALA, MADATHARA, PRUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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13 THANKAN GEORGE @ THANKAN THOPPIL HOUSE, MANIKAL KARIYIL, MANIKAL ESTATE IAYATIL, IDUKKI DISTRICT.

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14 SHAJI P.JOSEPH PARAYIL HOUSE, NIRMALAGIRI KARA, PERUVANTHANAM, IDUKKI DISTRICT - 685 532.

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15 VELAYUDHAN (EXPIRED) KATHIRIL HOUSE, THEKKEMALA KARYIL, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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16 RADHA KANNATTU VEETTIL, THEKKEMALA, PERUVANTHANAM, IDUKKI DISTRICT - 685 532.

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17 JAYACHANDRAN ARAKKAL HOUSE, THEKKEMALA KARA, PERUVANTHANAM, IDUKKI DISTRICT - 685 532.

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18 BEENA PERUMALIL HOUSE, THEKKEMALA KARA, PERUVANTHANAM, IDUKKI DISTRICT - 685 532.

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19 SIVAN VAIKATERIL, VALLIYANKAVU KARA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532. 20 ANILKUMAR KADAKKATT HOUSE, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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21 VIJAYAN

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PUTHANPURAKKAL HOUSE, VALLIYANKAVU, PRUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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22 ANTONY @ JOSE CHELLANTHARA VEEDU, KARAMALA KARA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532. 23 MADUSOODANAN VAZIPADIYIL HOUSE, PALOORKAVU KARA, PERUVANTHANAM VILLAGE, IDUKKI - 685 532.

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24 NIKIL BABU VAIKATHERI VEEDU, VALLIYANKAVU KARA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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25 MANEESH PUTHANPURAKKAL VEEDU, VALLIYANKAVU HOUSE, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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26 THOMAS GEORGE KALLANMARIKUNNEL THEKKEMALA KARA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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27 TINJOMON THANNIPPARAYIL VEEDU, THEKKEMALA, IDUKKI DISTRICT.

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28 SALEENA THYKOOTATHIL HOUSE, KARAMALA, PERUVANTHANAM VILLAGE,M IDUKKI DISTRICT - 685 532.

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29 PRABHAKARAN ARAKKAL HOUSE, VALLIYANKAVU, PERUVANTHANAM, IDUKKI DISTRICT - 685 532.

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30 BABU

KALLUMPURATH, 35TH MILE, MUNDAKKAYAM EAST, IDUKKI DISTRICT - 686 513.

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31 ANSARI

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THARAMEL HOUSE, VALLIYANKAVU KARA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 686 513.

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32 ANIYANKUNJU

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MADALIL PARAMBIL HOUSE, PALOORKAVU KARA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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33 MANOJ

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S/O.MATHEW, KUTTIYANIKKAL HOUSE, PALOORKAVU KARA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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34 DEVASSIYA

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KAITHAKULATIL HOUSE, PALOORKAVU KARA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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35 GIGI

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THYKOOTATHIL HOUSE, (NALLANIYIL) THEKKEMALA, KANAKAMALA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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36 JACOB @ APPACHAN ADICHILAKKAL HOUSE, THEKKEMALA, PRUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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37 JOSE

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EDASSERY POWATHIL HOUSE, PALOORKAVU KARAYIL, POTTAPPARA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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38 MATHEW

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PANTHAPPALLIL HOUSE, THEKKEMALA, PERUVATHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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39 ABY

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VATTOTHUKUNNEL HOUSE,PALOORKAVU KARA, POERUVANATHANAM VILLAGE - 685 532.

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40 SUNNY

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VADAKKENIRAPPEL HOUSE, PALOORKAVU, PERUVANTHANAM VILLAGE - 685 532.

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41 JOSE P.SUNNY MATTAMUNDAYIL HOUSE, THEKKEMALA KARAYIL, PERUVANTHANAM VILLAGE - 685 532.

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42 BINU KADUTHARAYIL HOUSE, 35TH MILE, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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43 ULLAS RAJAMANNA VEEDU, NEAR VALLIYANKAVU TEMPLE, IDUKKI DISTRICT.

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44 ANSAR THARAMEL HOUSE, NEAR VALLIYANKAVU TEMPLE, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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45 MINI VYKATERIL HOUSE, VALLIYANKAVU KARA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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46 RETNAMMA ARAKKAL HOUSE, VELLIYANKAVU HOUSE, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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47 BENNY PANTHAPPALLIL HOUSE, THEKKEMALA, PERUVANTHANAM, IDUKKI DISTRICT - 685 532.

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48 SABU KEENTHALANICKAL, THEKKEMALA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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49 GOPALAKRISHNAN CHOORAVILAYIL HOUSE, PALOORKAVU KARA, PERUVANTHANAM, IDUKKI DISTRICT - 685 532.

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50 BINOY KUNNAPALLIL HOUSE, THEKKEMALA, MADATHARA, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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51 BIJU P.R. PLACKKAL HOUSE, CHAZUPPU KARAYIL, KONGADU, PERUVATHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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52 ROBIN PANTHAPPALLIL HOUSE, THEKKEMALA, PRUVANTHANAM, IDUKKI DISTRICT - 685 532.

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53 PATHUKUNJU

ZALINA MANZIL, NEAR VALLIYANKAVU TEMPLE, PERUVANTHANAM VILLAGE, IDUKKI DISTRICT - 685 532.

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R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION R2 BY ADV. SRI.S.SREEKUMAR (SR.) R2 BY ADV. SRI.P.MARTIN JOSE R2 BY ADV. SRI.THOMAS P.KURUVILLA R2 BY ADV. SRI.AJAY BEN JOSE R2 BY ADV. SRI.MANJUNATH MENON R2 BY ADV. SMT.HANI P.NAIR R2 BY ADV. SRI.R.GITHESH R2 BY ADV. SHRI.HARIKRISHNAN S.

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THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20-11-2020, THE COURT ON 02.12.2020 PASSED THE FOLLOWING:

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ORDER

Defacto complainant in Crime No.219 of 2015 of Peruvanthanam Police Station now pending as S.C.No.685 of 2017 of the Sessions Court, Thodupuzha for offences punishable under sections 143, 147, 188, 353, 333 r/w 149 of the Indian Penal Code is the petitioner herein.

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According to the prosecution, petitioner was functioning as Additional District Magistrate, Kottayam in the year 2015. On 26.06.2015 in W.P(C).No.19214 of 2015, this Court had directed the petitioners therein to keep a disputed gate open and that, they shall not collect any toll during the pendency of the writ petition. It seems that, regarding the closure of gate, there were disputes pending between the management of the tea estate and locals who claimed right of passage through the road. The order was directed to be implemented with police aid. The District Collector by his communication dated 02.07.2015 addressed to the District Police Chief requested him to provide necessary and adequate police protection to the ADM who was deputed to implement the order. Accordingly, on 03.07.2015, ADM, accompanied by the local DYSP, revenue officials and other police personnel reached the spot. When they took steps to re-fix the gate, second respondent herein who was the MLA of the Peerumade constituency along with 300 other persons came to the

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spot and obstructed the official discharge of duties by the officials and the police personnel. Petitioners though explained about the orders of the High Court, second respondent allegedly assaulted the ADM, shouted at him, pushed him to one side and assaulted him. ADM fell down and sustained injuries. He was assaulted by the remaining persons in the presence of police officers. He was immediately rushed to the hospital, wherein, it was reported that, he had sustained fracture of the fibula. Petitioner was treated at the Medical College Hospital, Kottayam. A report was given by him to the District Collector. Crime was registered against the second respondent and 52 other named persons. After completion of investigation, final report was laid and the matter is now pending trial before the Sessions Court.

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Petitioner has approached this Court contending that the second respondent is very powerful and highly influential in Thodupuzha area and is also an MLA of the ruling coalition. After the registration of crime, petitioner got several threatening calls and messages informing him that, he will not be permitted to give evidence against the MLA. According to the petitioner, if the trial is proceeded before the District Court, Thodupuzha, there is every possibility that the trial will be sabotaged and all the witnesses in support of him will be threatened or coerced. Hence, he sought for transfer of the case from Sessions Court, Thodupuzha to any other Court in the Sessions division of Ernakulam/Thrissur in the interest of justice.

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Learned Public Prosecutor submitted that, Government is ready and willing to give adequate protection to the petitioner herein if any genuine apprehension of threat arises. Prosecution is interested only in free and fair trial of the case, it was submitted.

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Opposing the application, learned Senior Counsel for the second respondent vehemently contended that, Section 407 of Cr.P.C cannot be invoked on mere apprehension. It was contended that the grounds under section 407(a) of the Cr.P.C were not made out. According to the learned senior counsel, there is no genuine apprehension in the mind of the petitioner so as to warrant transfer of the case. It was contended that, petitioner being a Government servant is entitled to ask for protection and he can give evidence with police escort. It was also submitted that, altogether there are 52 accused and the remaining accused other than the second respondent are local people and it will be highly inconvenient for them to travel all the way to Ernakulam or Thrissur to participate in the trial. It was also contended that, most of the witnesses are official witnesses and hence, they will also have to travel to distant places to give evidence. It was also contended by the learned senior counsel that, till now the petitioner has not moved the court below raising an apprehension of threat and had he approached the Court, definitely, Court would have passed appropriate orders, to allay his apprehension.

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Learned counsel for the petitioner invited my attention to paragraph-7 wherein, there is a specific allegation that the petitioner is getting threatening calls and messages to the effect that, he will not be permitted to give evidence against the MLA if the trial takes place in Thodupuzha district. Learned counsel also pointed out that, in the transfer petition, he has specifically averred that, there was a news in the media that the prosecution was intending to withdraw the complaint to help the second respondent. It was also pointed out by the learned counsel that, police protection cannot be of any help to protect the complainant in giving evidence as evident from past experience. The very incident that resulted in the crime was one in which police protection was given, but in the presence of police he was assaulted. He has since retired and hence does not enjoy the protection of a Government servant now and he alone has to carry forward his litigation.

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Definitely, the allegation in the complaint was that the Government official was allegedly assaulted by the local MLA in the presence of police and revenue officials and the allegation that he has been receiving threatening calls over telephone are sufficient to raise apprehension in the mind of the petitioner. He has specifically alleged that, he is getting threatening calls and messages intended to desist him from giving evidence.

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Having considered this, I feel that the apprehension of the petitioner cannot be trashed aside and hence, interest of justice, demands

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transfer of the case to some other Court.

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Even though learned senior counsel contended that, transfer of the case will cause great inconvenience to all other accused, I do not appreciate it. Even now the accused will have to travel from Peerumedu to Thodupuzha Court. Further, their apprehension, if any, can be allayed if court below is directed to consider whether they can be permanently or temporarily exempted from personal appearance. Further, none of the above accused has appeared before this Court to raise an objection regarding the transfer. It was reported that, accused Nos.4 and 15 have expired. R15 died prior to the filing of the final report. All other accused were served with notice. However, except R2, no other respondent has appeared before this Court to contest the proceedings.

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It is also seen that, out of the total 45 witnesses, only 9 are unofficial witnesses and all other witnesses are official witnesses. Hence, there cannot be any grievance regarding the witnesses also.

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After considering the rival contention, I feel that, the case can be transferred to a Sessions Court outside the Sessions division of Thodupuzha. However, to avoid inconvenience that may be caused to the parties, I am inclined to transfer it to the Additional Sessions Court, Muvattupuzha which is about 20kms away from the District Court, Thodupuzha. Accordingly, transfer petition stands allowed as follows:

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(I) S.C.No.685 of 2017 now pending before the Sessions Court, Thodupuzha stands transferred to

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Additional Sessions Court/MACT, Muvattupuzha.

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(ii) Sessions Court, Thodupuzha will transmit the entire files to Principal Sessions Court, Ernakulam which shall, after renumbering the case, make it over to the Additional Sessions Court/MACT, Muvattupuzha.

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(iii) Both sides shall appear before the Additional Sessions Court, Muvattupuzha on 28.01.2021, without any further notice. If other accused remains absent before Additional Sessions Court, Muvattupuzha, it shall issue summons to them.

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(iv) Considering the fact that the sessions case is of 2017, notwithstanding the renumbering of that case, Additional Sessions Court, Muvattupuzha shall take up and dispose of the above sessions case as expeditiously as possible, at any rate, within a period of four months from the date of appearance of the accused before the court below.

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Transfer petition is allowed as above.

Sd/-

SUNIL THOMAS

JUDGE

Sbna

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APPENDIX

PETITIONER'S EXHIBITS:

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ANNEXURE I	TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT AS PER ORDER DATED 26/06/2015 IN WP(C) NO.19214/2015.
ANNEXURE II	TRUE COPY OF THE REQUEST DATED 02/07/2015 MADE BY THE DISTRICT COLLECTOR, IDUKKI, TO THE DISTRICT POLICE SUPERINTENDENT, IDUKKI.
ANNEXURE III	TRUE COPY OF THE FINAL REPORT IN SC NO.685/2017 ON THE FILE OF THE FILE SESSIONS COURT, THODUPUZHA.
ANNEXURE IV	TRUE COPY OF THE FIRST INFORMATION STATEMENT ALONG WITH FIRST INFORMATION REPORT IN CRIME NO.219/15 OF PERUVANTHANAM POLICE STATION.
ANNEXURE V	TRUE COPY OF THE DIRECTIONS GIVEN BY THE DISTRICT COLLECTOR, IDUKKI, TO THE PETITIONER DATED 02/07/2015.
ANNEXURE VI	TRUE COPY OF THE WOUND CERTIFICATE ISSUED TO THE PETITIONER WITH RESPECT TO THE INJURIES SUSTAINED TO HIM.
ANNEXURE VII	TRUE COPY OF THE REPORT SUBMITTED BY THE PETITIONER TO THE DISTRICT COLLECTOR, IDUKKI.
ANNEXURE VIII	TRUE COPY OF THE DISCHARGE CERTIFICATE WITH
	RESPECT TO THE PETITIONER ISSUED FROM
	MEDICAL COLLEGE HOSPITAL, KOTTAYAM.

Moncy P.Alexander v. State of Kerala

Case brief

What is this about?

What did the court decide?

Moncy P.Alexander v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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