Kerala High Court
Jibu D. Mathew vs Central Bureau Of Investigation on 22 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
TR.P(CRL.) NO. 10 OF 2022
(FOR TRANSFER OF CC.NO.3 OF 2020 (RC.1(A)/2018/CBI/ACB/COCHIN) ON
THE FILES OF THE SPL.JUDGE (SPE/CBI) THIRUVANANTHAPURAM)
PETITIONER/1ST ACCUSED:
JIBU D. MATHEW,
AGED 50 YEARS
COMMANDANT, 83 BATTALION,
BSF, WEST BENGAL (UNDER SUSPENSION),
S/O. MATHEW P., PULINILKUNNATHIL HOUSE, ELANTOOR,
PATHANAMTHITTA DISTRICT.
NOW RESIDING AT HOUSE NO.26291, BYE LANE 3, PC CROSS
ROAD, PONNURUNNI, VYTTILA, COCHIN-682019.
BY ADV GEORGE THOMAS (MEVADA)(SR.)
BY ADV.AMAL GEORGE
RESPONDENTS/COMPLAINANT/2ND ACCUSED:
1 CENTRAL BUREAU OF INVESTIGATION,
ACB, CBI ROAD, KATHRIKKADAVU, COCHIN-682017.
2 MOHAMMED ENAMUL HAQUE,
RESIDENT OF 72A, TILJALA ROAD, TOWER-1, FLAT 3B,
HERITAGE SRIJAN PARK, NEAR DON BOSCO SCHOOL, GOBINDA
KHATIK ROAD, BENIAPUKUR, KOLKOTTA-700046.
BY ADVS.
CGC SRI.SUVIN R.MENON
R.ANIL R
M.SUNILKUMAR(K/926/1989)
SUJESH MENON V.B.(S-1613)
T.ANIL KUMAR(K/101/2006)
THOMAS ABRAHAM (NILACKAPPILLIL)(K/857/2011)
MAHESH BHANU S.(K/1620/2018)
S.LAKSHMI SANKAR(K/001642/2018)
THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 22.03.2022, ALONG WITH Tr.P(Crl.).12/2022, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
TR.P(CRL.) NO. 10 OF 2022 &
TR.P(CRL.) NO. 12 OF 2022 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
TR.P(CRL.) NO. 12 OF 2022
AGAINST THE ORDER/JUDGMENT IN CC 2/2020 OF SPE/CBI COURT,
TRIVANDRUM
PETITIONER/S:
JIBU D. MATHEW
AGED 50 YEARS
COMMANDANT, 83 BATTALION, BSF, WEST BENGAL (UNDER
SUSPENSION), S/O.MATHEW P., PULINIKUNNATHIL HOUSE,
ELANTOOR, PATHANAMTHITTA DT., NOW RESIDING AT
HOUSE NO.26291, BYE LANE 3, PC CROSS ROAD,
PONNURUNNI, VYTTILA, COCHIN - 682 019.
BY ADVS.
AMAL GEORGE
GEORGE THOMAS (MEVADA)(SR.)
RESPONDENT/S:
CENTRAL BUREAU OF INVESTIGATION
ACB, CBI ROAD, KATHRIKKADAVU, COCHIN - 682 017.
BY ADV MANU S., ASG OF INDIA
OTHER PRESENT:
CGC SRI.SUVIN R.MENON
THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 22.03.2022, ALONG WITH Tr.P(Crl.).10/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TR.P(CRL.) NO. 10 OF 2022 &
TR.P(CRL.) NO. 12 OF 2022 3
ORDER
These Transfer Petitions (Crl) are filed by the
common accused in CC.No.3 of 2020 and CC.No.2 of
2020. In CC No.3 of 2020, the petitioner stands arrayed
as the co-accused along with the second respondent
herein. He is the sole accused in CC.No.2 of 2020. After
investigation, final reports were laid in both the cases by
the CBI before the Special Judge (SPE/CBI),
Thiruvananthapuram. Matters are now pending trial.
2. The petitioner has approached this court
invoking Section 407 Cr.P.C, seeking transfer of both
cases to any CBI Court in Ernakulam, on a premise that
the transfer will be for the general convenience of both
parties. To support this, it was submitted by the
petitioner that by virtue of Annexure-A1 bail order passed
TR.P(CRL.) NO. 10 OF 2022 &
by the CBI court, his movement was restricted and he
was directed to stay in Ernakulam. It was also stated that
pursuant to the bail order, he was constrained to settle in
Ernakulam. He took a house on rent at Ernakulam. His
son is studying in Ernakulam and he himself is also
undergoing treatment in a hospital at Ernakulam. His
mother is suffering from malignancy and requires
frequent visit to Amrita Hospital in Ernakulam. To
substantiate it, he relied on Annexures A2 and A3. It was
also stated that majority of the witnesses are from
outside and most of them are official witnesses.
3. Opposing this, the respondent - CBI has filed
detailed statement to which a reply affidavit has been
filed in Tr.P.(Crl)No.10 of 2022. Opposing the
application, the learned ASG contended that the petitioner
had approached the trial court seeking relaxation of the
TR.P(CRL.) NO. 10 OF 2022 &
bail condition on a specific contention that his mother
was at Pathanamthitta and he may be permitted to leave
Ernakulam to take the mother to RCC,
Thiruvananthapuram. That was granted, with a rider that
he shall not leave the jurisdiction of Thiruvananthapuram
and Ernakulam Courts. The petitioner has now come up
with a definite case that his mother is at Ernakulam
and needs treatment. The fact that the petitioner sought
for modification of the bail order and that his mother
was presently at Ernakulam were not disclosed in the
Transfer Petitions(Crl). It was also stated that most of
the witnesses are official witnesses. However, they are
liable for transfer from one place to another. They might
be posted at different places now. The principle of
jurisdiction has to be determined by the cause of action
arose. It was also submitted that the general
TR.P(CRL.) NO. 10 OF 2022 &
convenience to the parties should be taken into
consideration and not the convenience of the accused.
4. Answering these contentions, the learned senior
counsel Adv.George Thomas Mevada, on instructions of
Mr.Amal George, relying on the reply affidavit contended
that though his mother was at Pathanamthitta, she was
undergoing treatment at Amrita Hospital in Ernakulam.
To support it, two documents were also placed. It is an
undisputed fact that the petitioner is staying at
Ernakulam. His son is studying in Ernakulam and is also
undergoing treatment at a hospital in Ernakulam.
According to the learned senior counsel, the relaxation of
the bail condition was sought on the factual situation that
existed at that point of time. Evidently, it seems that
mother is a patient undergoing treatment at Ernakulam.
These form part of the convenience of the petitioner.
TR.P(CRL.) NO. 10 OF 2022 &
5. Projecting the general convenience as
contemplated under Section 407 Cr.P.C, the learned
senior counsel submitted that in CC.No.2 of 2020, 19
witnesses are from Ernakulam, 3 from Alappuzha, 3 from
Pathanamthitta and several other witnesses, either from
West Bengal or Delhi. It seems that about 5 witnesses
are from Tamil Nadu. There are 2 witnesses from Bihar
and Telungana also. Almost similar is the situation of the
witnesses in CC No.3 of 2020. Essentially, for the official
witnesses, whether trial is conducted at Ernakulam or at
Thiruvananthapuram, even having regard to the
subsequent eventuality by which they might have been
transferred to different places, it may not make much
difference, except that all witnesses from other States
than Tamil Nadu, Kochi may be nearer. However, the
general convenience of the litigation has to be
TR.P(CRL.) NO. 10 OF 2022 &
considered. No doubt, the order of transfer cannot be
decided on a golden scale, but on a fair evaluation of the
facts of the case. Evidently, if the case is transferred to
a court in Ernakulam that may not affect CBI in any
manner. For the witnesses, who are mostly official
witnesses, transfer cannot cause any inconvenience to
them. Coupled with this is the convenience of accused,
who is expected to participate in the trial through out.
Co-accused has submitted that he has no objection in
transferring the case to Ernakulam.
6. Having considered these facts and also the fact
that three courts are available in Ernakulam, I feel that it
will be expedient in the interest of justice that trial is
conducted at any of the courts in Ernakulam, having
regard to all the materials made available to this court.
Hence, I am also inclined to consider the special facts
TR.P(CRL.) NO. 10 OF 2022 &
projected by the learned senior counsel in this cases and
to order transfer of both the cases from Special
Court(SPE/CBI), Thiruvananthapuram to SPE/CBI Court at
Ernakulam. Accordingly, Transfer Petitions (Crl) No.10 of
2022 and 12 of 2022 stands allowed as follows:
i) CC.No.3 of 2020 and CC No.2 of 2020 pending
before the Special Judge (SPE/CBI), Thiruvananthapuram,
shall stand transferred to SPE/CBI Court No.I, Ernakulam.
ii) The learned Special Judge, (SPE/CBI),
Thiruvananthapuram shall transmit the entire files of
above cases pending before it, to the SPE/CBI, Court
No.I, Ernakulam, forthwith.
iii) Both sides shall appear before the SPE/CBI,
Court No.I, Ernakulam on 19.05.2022 at 11 am without
any further notice. The court shall thereafter proceed
with the trial in accordance with law.
TR.P(CRL.) NO. 10 OF 2022 &
Transfer Petitions (Crl) are allowed.
sd/-
SUNIL THOMAS, JUDGE
R.AV
TR.P(CRL.) NO. 10 OF 2022 &
APPENDIX OF TR.P(CRL.) 10/2022
PETITIONER'/S EXHIBITS:
ANNEXURE 1 PHOTOCOPY OF THE ORDER IN CRIMINAL MP
60/2018 ISSUED BY CBI COURT,
THIRUVANANTHAPURAM DATED 02/04/2018.
ANNEXURE 2 PHOTOCOPY OF THE SURGICAL PATHOLOGY
REPORT OF MRS. ANNAMMA MATHEW ISSUED BY
AMRITA HOSPITAL DATED 03/09/2018.
ANNEXURE 3 PHOTOCOPY OF THE RADIOLOGY REPORT OF
ASHISH MATHEW ISSUED FROM AMRITA
HOSPITAL DATED 08/07/2019.
ANNEXURE 4 PHOTOCOPY OF THE CERTIFICATE ABOUT THE
TREATMENT ASHISH MATHEW ISSUED FROM
AMRITA HOSPTAL DATED 14/01/2022.
RESPONDENT'S/S EXHIBITS:
ANNEXURE R1(A) TRUE COPY OF THE CRL.M.P.NO.174 OF 2018
ON THE FILES OF THE COURT OF SPECIAL
JUDGE (SPE/CBI) AT THIRUVANANTHAPURAM.
ANNEXURE R1(B) TRUE COPY OF THE ORDER DATED 24.11.2018
OF THE COURT OF SPECIAL JUDGE (SPE/CBI)
THIRUVANANTHAPURAM IN
CRL.M.P.NO.174/2018 IN
CRL.M.P.NO.60/2018.
TR.P(CRL.) NO. 10 OF 2022 &
APPENDIX OF TR.P(CRL.) 12/2022
PETITIONER'S/S EXHIBITS:
ANNEXURE 1 PHOTOCOPY OF THE ORDER IN CRIMINAL MP 60
OF 2018 ISSUED BY CBI COURT
THIRUVANANTHAPURAM DATED 02/04/2018.
ANNEXURE 2 PHOTOCOPY OF THE SURGICAL PATHOLOGY
REPORT OF MRS.ANNAMMA MATHEW ISSUED BY
AMRITA HOSPITAL DATED 03/09/2018.
ANNEXURE 3 PHOTOCOPY OF THE RADIOLOGY REPORT OF
ASHISH MATHEW ISSUED FROM AMRITA
HOSPITAL DATED 08/07/2019.
ANNEXURE 4 PHOTOCOPY OF THE CERTIFICATE ABOUT THE
TREATMENT OF ASHISH MATHEW ISSUED FROM
AMRITA HOSPITAL DATED 14/01/2022.
RESPONDENT'S/S EXHIBITS:
ANNEXURE R1(A) TRUE COPY OF THE CRL.M.P.NO.174 OF 2018
ON THE FILES OF THE COURT OF SPECIAL
JUDGE (SPE/CBI) AT THIRUVANANTHAPURAM.
ANNEXURE R1(B) TRUE COPY OF THE ORDER DATED 24.11.2018
OF THE COURT OF SPECIAL JUDGE (SPE/CBI)
THIRUVANANTHAPURAM IN
CRL.M.P.NO.174/2018 IN
CRL.M.P.NO.60/2018.
