The Kerala High Court on Thursday held that in the transfer petition moved by the victim in the actor assault case, that the petitioner could not make out a case for an order for transferring the case from the principal sessions court.
Justice Ziyad Rahman A. A., while so holding, fixed a time limit which is to expire on 31.01. 2023 for completion of the trial, and further directed that every endeavor ought to be made by all the parties concerned to complete the trial within the said period.
The petitioner had submitted that the bias of the judge could be revealed through the resignation of public prosecutors, the conduct of the learned judge during the trial at the initial stage, and the difficulties claimed to have faced by the petitioner during her cross examination as PW1.
The Court in this case considered the grounds on which the petitioner had submitted the transfer petition.
Regarding the the legal sustainability of the order of transfer of the case, from Additional Sessions Court to the Principal Sessions Court, it was found by the Court that it was consequent to the prayer made by the petitioner in OP(Crl.)No.344/2018, that the Additional Special Sessions Court (SPE/CBI)-III, Ernakulam was found to be the only competent court in Ernakulam, presided by a woman judge, and the case had accordingly been transferred to the said Court.
On a perusal of the judgment in Ranbir Yadav v. State of Bihar (1995), the Court found that it derives its powers to transfer one case from one court to another, both under Article 227 of the Constitution of India and Section 407 of Cr.P.C., and that the said powers could be exercised by issuing judicial orders and administrative orders.
Regarding the allegation of personal bias on the part of the Judge, it was found by the Court that although the voice clip and call records produced before the Court showed that there had been some contact between the said Sessions Judge and Advocate Santhosh who had been appearing on behalf of the accused in a custody murder case in which disciplinary proceedings had been initiated against the former's husband, there was nothing "to suggest that a direct or indirect link was ever established between the 8th accused(Actor Dileep) and the learned Sessions Judge". The Court further added that there was no material to show that the Sessions Judge had contacted Adv Ullas, who was the maker of the voice clip, or even the 8th accused.
As regards the telephonic conversation between the said Santhosh and Ullas, the Court observed that
"it is reported that both of them are lawyers from Thrissur, and in the absence of any specific materials, a connection between the learned judge and the 8th respondent cannot be inferred merely because of the same. Thus, nothing unusual could be assumed or found, touching upon the credibility of the learned Sessions judge".
As regards the 8th accused having deleted his entire chat history with Advocate Ullas also, it was found by the Court that the same could not lead to any aspersions against the Sessions Judge.
"I have already found that the said voice message does not even remotely suggest any connection with the learned judge. Therefore, the said contention is also liable to be rejected, and I do so", it was observed.
As regards the allegation of bias by the petitioner on the ground of the inaction on the part of the Sessions Judge in taking action upon the FSL report showing the change in the hash value of the memory card in the custody of the court and containing the video clips of the sexual assault of the petitioner, it was found by the Court that the change in hash value reported was in respect of the memory card and not with respect to the respective files containing the video footage. This would indicate that the subject video clips were not tampered with, but the memory card was accessed, it was added.
"There is no allegation that there was any tampering in the said video. Even in the FSL report subsequently obtained, there is no finding of any tampering with video files. The only allegation is unauthorised access to the memory card. The objectionable access, according to the prosecution, is the one that occurred on 19.07.2021. It is to be noted that the allegation of inaction on the part of the learned Sessions Judge is in respect of the FSL report of change in the hash value, submitted in the year 2020, whereas the objectionable access to the memory card took place on 19.07.2021, which is much after that. Therefore, the failure to inform the receipt of the report did not affect the trial and the evidence adduced by the prosecution", the Court found.
It was in these circumstances that the Court found that there could not be a reason to cast any aspersions on the learned Sessions Judge alleging bias, particularly because the "prosecution has no case that the video footage was ever tampered with", and nothing which could interfere with the fair trial of the case was found to have occurred.
As regards the contention that the Special Public Prosecutors had resigned due to the hostility shown by the Sessions Judge, the Court found that these had been subject matter in the earlier transfer petitions, and that the same could not be re-agitated. It was further found that there were also no materials to show any hostility towards the second Special Public Prosecutor which led to his resignation.
The Court importantly added that,
"...after having examined all the relevant aspects, I am of the firm view that the petitioner's apprehensions regarding possible interference in the fair trial are not reasonable. As observed by the Honourable Supreme Court, to judge the reasonableness of the apprehension, the state of mind of the person who entertains apprehension is no doubt relevant, but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension".
The Court noted that the petitioner may have been a victim of "wrong perceptions and aspersions created by the media" regarding the case.
"It is unfortunate that, in the debates in media ('trials'), causes and issues are prejudged, and the verdicts are passed, expecting the courts to pass orders, sentencing the accused to the maximum, by following their declarations. These so called debates, claimed to be carried out to enlighten the public at large, convey their views(instead of news), without even fully knowing the nature of materials placed before the court, without properly understanding the circumstances under which the courts take decisions and unaware of the legal provisions and principles relied on/applied by the courts", the Court observed gravely.
The Court further added that,
"Although criticism is the backbone of democracy and the media is expected to do that, in this case, it is seen transgressed the limits of fairness, reasonableness and rationality".
It is in this context that the High Court rejected the transfer petition.
Advocates P. Sanjay, A. Parvathi Menon, Biju Meenattoor, Paul Varghese, P.A. Mohammed Aslam, Kiran Narayanan, Prasoon Sunny, Rahul Raj P., Amrutha M. Nair, and R.K. Asha, appeared for rthe petitioner.
Senior Advocate and Director General of Prosecution T.A. Shaji, Senior Government Pleader and Additional Public Prosecutor P. Narayanan, Senior Government Pleader Sajju S., Senior Advocate Raman Pillai, Advocates Pratheesh Kurup V.V., N.S. Sandhya, Alex Joseph, Aswathi Suresh, Nisha K. Peter, Krishnadas P. Nair, K.L. Sreekala, Haridas P. Nair, M.A. Vinod, Biju Viswanath, Shinto Thomas, Anu Prabhakar, Aswathy Arjunan, A. Mohammed, T.R.S. Kumar, Deepa R. Menon, Phijo Pradeesh Philip, P.V. Anoop, Philip T. Varghese, Sujesh Menon V.B., Thomas T. Varghese, Achu Subha Abraham, V.T. Litha, K.R. Monisha, and Nitya R., appeared for the various respondents.
Case Title: XXX v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 498