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Andhra High Court · body

2010 DIGILAW 224 (AP)

Perrisineti Lokanadham Narendra v. P. Harika

2010-03-19

P.S.NARAYANA

body2010
Judgment : 1. Heard Sri M.Venkatanarayana, learned counsel representing the petitioner and the learned Additional Public Prosecutor representing the third respondent. 2. The Transfer Criminal Petition is filed under Section 407 of the Code of Criminal Procedure, 1973 (herein after referred to as "Cr.P.C." for the sake of convenience) praying for withdrawal and transfer of M.C.No.37 of 2009 on the file of the IV Additional Judicial Magistrate of First Class, Nellore to the Family Court (VI Additional District Judge), Nellore, Sri Pottisriramulu Nellore District and pass necessary suitable orders. 3. The learned counsel for the petitioner had taken this Court to the averments made in the affidavit filed in support of the Criminal Petition in Paras 2, 3 and 4 and would maintain that in the facts and circumstances of the case, it is a fit matter where transfer is to be ordered. Incidentally, learned counsel also pointed out to Sections 7 and 8 of the Family Courts Act, 1984 (herein after, referred to as "the Act" for the sake of convenience). 4. The learned Additional Public Prosecutor however would maintain that in the light of the clear language of the proviso to Section 407(2) Cr.P.C., unless an application for transfer had been moved before the Court of Session, when both the Criminal Courts fall within the same sessions division, straightaway, the petitioner cannot be permitted to approach this Court under Section 407 Cr.P.C. by filing the present Transfer Criminal Petition. 5. Sri M.Venkatanarayana, no doubt, had drawn the attention of this Court to Sections 7 and 8 of the Act and would maintain that the Family Court, being of coordinate jurisdiction to the Court of Session, it may be just and proper to maintain the Transfer Criminal Petition before this Court under Section 407 Cr.P.C. 6. Section 407 Cr.P.C. deals with the power of High Court to transfer cases and appeals. Sub Section (2) of 407 Cr.P.C. specifies that 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. The proviso specifies 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 had been made to the Sessions Judge and rejected by him. 7. The proviso specifies 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 had been made to the Sessions Judge and rejected by him. 7. It is not the case of the petitioner that the petitioner had filed such application before the Court of Session and the same had been rejected. It is also not in controversy that both the Courts- IV Additional Judicial Magistrate of First Class, Nellore and the Family Court (VI Additional District Judge), Nellore, Sri Pottisriramulu Nellore District fall within the limits of the same Court of Session. 8. In the light of the same, liberty is given to the petitioner to move appropriate Transfer Criminal Petition, if the petitioner is so advised. 9. Accordingly, Transfer Criminal Petition is disposed of.