'No Ground To Show Personal Bias Of Judge' :Kerala High Court Refuses To Transfer Trial Of Actor Assault Case; Dismisses Survivor's Plea

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. The High Court added that since the substantial part of the trial of the case was already over in the presence of the present judge, entrusting the same to another judge, at this juncture would cause serious practical difficulties, particularly when a time limit had also been prescribed by the Apex Court which had to be complied with. 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".The court also rejected any link between the 8th accused and the Sessions Judge merely because a voice message had been sent by Adv Ullas to the 8th accused. 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 ...

'No Ground To Show Personal Bias Of Judge' :Kerala High Court Refuses To Transfer Trial Of Actor Assault Case; Dismisses Survivor's Plea

Navya Benny

The High Court observed that the petitioner was a victim of wrong perceptions created by the media.

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