Azad and Ashik v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936** **Tr.P(Crl.).No. 25 of 2014 (A)** **-------------------------------------[IN CRL.APPEAL.NO.144 OF 2008 ON THE FILE OF THE ADDITIONAL SESSIONS COURT, IRINJALAKUDA]** **............** ## **PETITIONERS/APPELLANTS:** **-----------------------------------------** **1. AZAD, S/O.SAIDU, MUDIYAKKARA HOUSE, KATTAN BAZAR, S.N.PURAM VILLAGE, KODUNGALLUR, THRISSUR.** **2. ASHIK,** **S/O.SAIDU, MUDIYAKKARA HOUSE, KATTAN BAZAR, S.N.PURAM VILLAGE, KODUNGALLUR, THRISSUR.** **BY ADVS.SRI.M.SHAJU PURUSHOTHAMAN, SRI.K.S.RAJESH.** ## **RESPONDENT/COMPLAINANT:** **--------------------------------------------** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031.** ## **BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.** **THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 24-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **TR.P.(CRL.).NO.25/2014-A:** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A: TRUE COPY OF THE CRL.APPEAL 144 OF 2008 ON THE FILE OF THE ADDITIONAL SESSIONS COURT, IRINJALAKUDA DT. 22/02/2008. ANNEXURE B: TRUE COPY OF THE ORDER OF THE T.L.C.S, MUKUNDAPURAM DTD. 17/12/2013. ANNEXURE C: TRUE COPY OF THE COMPLAINT BEFORE THE REGISTRAR OF THE HON. HIGH COURT OF KERALA DT. 18/12/2013. ANNEXURE D: TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BEFORE THE ADDL. SESSIONS COURT, IRINJALAKUDA DT. 30/12/2013.** ## **RESPONDENT'S ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **K. RAMAKRISHNAN, J.** ................................................. T.P.(Crl.).No.25 of 2014 .................................................. Dated this the 24[th] day of March, 2014. ## **O R D E R** This is an application filed by the appellants in Crl.A.No.144/2008 on the file of the Additional Sessions Court, Irinjalakuda seeking transfer of the appeal to Sessions Court, Thrissur under Section 407 of the Criminal Procedure Code. 2. It is alleged in the petition that petitioners are the appellants in Crl.A.No.144/2008 on the file of the Additional Sessions Court, Irinjalakuda. The appeal was preferred against the order of conviction and sentence passed in C.C.No.533/2006 on the file of the Judicial First Class Magistrate Court, Kodungallur. The counsel for the petitioners could not be present and the learned Additional Sessions Judge appointed a legal aid counsel on 12.12.2013. The appointment of legal aid counsel by the court due to the absence of the petitioners on 12.12.2013 is against law as even prior to that, proper representation was made by the counsel for the petitioners whenever the case is posted for hearing. The petitioners filed Annexure-C compliant before the Registrar of this Court 2 T.P.(Crl.).No.25 of 2014 regarding this aspect and seeking intervention of this Court on the administrative side to allow the petitioners to argue the case through counsel appointed by them instead of by the legal aid counsel. The petitioners have also filed Annexure D petition before that court stating that till the petition filed by them is disposed of by this Court, the appeal should not be taken up. According to the petitioners, on account of the filing of the complaint, it created a reasonable apprehension in the mind of the petitioners that if the appeal is heard by the same Judge, they will not et justice. So they are compelled to file this application for transfer seeking the following relief: Therefore, it is humbly prayed that this Hon'ble Court may be pleased to transfer Crl.Appeal.No.144 of 2008 on the file of the Additional Sessions Court, Irinjalakuda to the Sessions Court, Thrissur for hearing and disposal in the interest of justice. 3. Heard the counsel for the petitioners and the learned Public Prosecutor. 4. Considering the nature of allegations made in the petition, a report has been called for from the concerned Additional Sessions Judge as well and the Additional Sessions 3 T.P.(Crl.).No.25 of 2014 ## Judge sent a report which reads as follows: “In obedience to the Official memorandum under 2[nd] reference, I may be permitted to submit the following facts for kind consideration and necessary action. The Crl.A.No.144/2008 is a very old appeal pending in this court, which was targeted to be disposed off in the current target period. It may be noted that at the instruction of the Judge in Charge the Principal District & Sessions Judge has convened the meeting alerting to dispose off all the targetted cases on the time stipulated. The counsel on record in the Crl.A.No.144/2008 ever appeared in this court at least for getting an adjourment. In some occasion the appeal was represented through the lawyers present in the court, for adjournment and in some other posting dates remain unattended. Whenever the matter was attended as stated above I have reminded them the direction for the disposal of the appeal and to argue the matter on the next posting date. Still the practice stated above was being followed. Hence for the sake of disposal the notice was ordered to the appellants in person. But they did not attend the court. Hence a counsel from 4 T.P.(Crl.).No.25 of 2014 the legal Service Committee was engaged to help the court to raise the points for determination, the decision and the reasons for the decision required in the contents of the judgment in appeal. It is the fundamental right of the accused to engage a lawyer of his choice. I haven't engaged a counsel for the appelant. Such an allegation is made under the pretext of some serious mistake I have committed as a dilatory tactis abusing the process of the court. The appellants at first filed complaint to the Registrar of High Court of Kerala dated 18.12.2013 to which my explanation was called for with OM under 3[rd] reference. It was then directed under 4[th] reference to hear the appeal through the counsel appointed by the appellant and to dispose of it expeditiously being an old one. During the pendency of the complaint, the appellants filed CMP.No.127/13 to stay the proceedings till their grievance in the complaint was considered by the High Court. Though I have not passed an order in the petition the appeal was left open facilitating the appellant to argue the matter on any of the posting dates giving two more postings in February and March also. Even then the counsel has 5 T.P.(Crl.).No.25 of 2014 not even appeared in court and stated any of the inconvenience and his willingness to argue the appeal on any of the convenient dates. Hence the appeal could not disposed off till date”. 5. The counsel for the petitioners submitted that, in view of the fact that a complaint has been sent to Registrar of this Court against the order appointing legal aid counsel to argue the case, they apprehend that they will not get justice from this court. The learned counsel relied on the decisions reported in **P.D. Dinakaran(1) v. Judges Inquiry Committee** (2011 (8) SCC 380) and also **Manak Lal v. Dr. Prem Chand** (AIR 1957 SC 425) in support of his case. The application was opposed by the learned Public Prosecutor. 6. It is an admitted fact that the appeal has been preferred by the petitioners/appellants before the Sessions Court, Thrissur which was made over to Additional Sessions Court, Irinjalakuda for disposal. The appeal is of the year 2008. It is also an admitted fact that when the case was posted for hearing on the particular date, there was no representation on the part of the appellants/petitioners and even it is seen from the report that T.P.(Crl.).No.25 of 2014 6 though it was an old case, hearing was insisted on the previous occasion also. Adjournments were sought on behalf of the counsel for the appellants and adjournments were granted liberally by the Additional Sessions Judge but only insisted that the appeal will have to be heard at least on the next hearing date. When there was no representation, as per the Supreme Court decision, the appeal cannot be dismissed for default and it will have to be decided on merits. Even in the above decisions, it has been held that in case the counsel appointed by the party is not appearing, then the court can appoint a legal aid counsel on behalf of the appellants and hear the legal aid counsel and dispose of the appeal only on merits and it cannot be dismissed for default. But, in this case, it appears that when the legal aid counsel was appointed, the petitioners filed a complaint before the Registrar of this Court seeking intervention of this Court and it is seen from the report of the Additional Sessions Judge that the request of the petitioners was allowed and a direction was given to the Additional Sessions Judge to permit the counsel appointed by the petitioners to argue the case and dispose of the same in accordance with law on the administrative side. So even in the application filed by T.P.(Crl.).No.25 of 2014 7 the petitioners before the Registrar, they have not expressed apprehension of any bias being caused in the mind of the Judge. Further, it is true that the petitioners filed Annexure D petition before the Additional Sessions Court seeking postponement of hearing of the appeal till the petition filed before the Registrar of this Court is disposed of. There also nothing mentioned about any apprehension of bias in the mind of the Judge. They wanted only an adjournment till a decision being taken on their application that was filed before this Court on the administrative side and nothing more. It is seen from the report that on filing of Annexure D, no orders have been passed, but the case has been adjourned awaiting report from this Court regarding the complaint filed by the petitioners. Thereafter when the case was posted for hearing, the petitioners have come before this Court seeking transfer alleging apprehension of bias that has been created in the mind of the appellants on account of the conduct of the Additional Sessions Judge. 7. There is no dispute regarding the propositions laid in the decision report in **Dinakan's case** and **Manak Lal's case** (cited supra) by the Honourable Supreme Court. It is settled law that, if there is any possibility that has been created on 8 T.P.(Crl.).No.25 of 2014 account of the conduct of a person who is deciding the case in the mind of the litigant that he will not get justice from that court from the circumstances narrated in the petition, that can be considered by that court and if the court is of the same opinion that bias or apprehension is genuine, then the court can exercise the power and transfer the case to some other court. But, in this case such an apprehension is without any basis because, even in the application filed by the petitioners when legal aid counsel was appointed or when filed application before the same court seeking adjournment of the case till a decision is taken by the High Court on the administrative side, nothing has been mentioned about any apprehension as such. So, under the circumstances, the submission made by the counsel for the petitioners that a reasonable apprehension has been created in the mind of the appellants that the Judge is likely to be biased against them on account of the complaint filed by them before this Court on the administrative side is without any bias. The conduct of the parties from the nature of things mentioned in the report shows that it is only an attempt on the part of the petitioners to prolong the appeal which is pending for the last 6 years. So I don't find any merit in this 9 T.P.(Crl.).No.25 of 2014 petition and the apprehension by the petitioners is baseless and the petitioners are not entitled to get the relief claimed in this petition. The petition is liable to be dismissed. In the result, this petition is dismissed. Communicate this order to the court below at the earliest. ## **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge