Chandran alias Kunjala v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 16TH DAY OF FEBRUARY 2017/27TH MAGHA, 1938** **Tr.P(Crl.).No. 18 of 2017 () -----------------------------** **AGAINST SC 551/2010 of ADDL.D.C. & SESSIONS COURT - IV, THIRUVANANTHAPURAM DATED** ## **PETITIONER/ACCUSED:** **---------------------** **CHANDRAN @ KUNJALA AGED 56 YEARS, S/O. ASHOKAN, VALIYAVILA VEEDU, POIKAKADA, KODUVAZHNOOR VILLAGE, THIRUVANANATHAPURAM** ## **BY ADVS.SRI.GEORGE SEBASTIAN SRI.K.RAJENDRAN CHETTIAR** ## **RESPONDENT/COMPLAINANT:** **--------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.682031** **BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA** **THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 16-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Tr.P(Crl.).No. 18 of 2017 ()** ## **APPENDIX:** **PETITIONER'S ANNEXURES:** **ANNEXURE A: COPY OF PETITION M.P(T.P)NO.330/2017 OF THE PRINCIPAL SESSIONS COURT, THIRUVANANATHAPURAM.** **ANNEXURE B: COPY OF THE ORDER DATED 10.2.2017 IN M.P(T.P) NO.330/2017 OF the PRINCIPAL SESSIONS COURT, THIRUVANANATHAPURAM.** ## **RESPONDENT'S ANNEXURES: NIL** **TRUE COPY** **P.A. TO JUDGE..** **kp** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Tr.P(Crl). No. 18 of 2017 - - - - - - - - - - - - - - - - Dated 16[th] February, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.This petition is filed under section 407 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) with a prayer to withdraw S.C. No.551 of 2010 on the file of the Additional Sessions Court-IV, Thiruvananthapuram to any other Sessions Court within the Thiruvananthapuram Sessions Division. The petitioner had preferred a petition seeking similar relief before the Court of Sessions Thiruvananthapuram, but the same was dismissed by the court below by order dated 10.2.2017. - 2.The case of the petitioner is that he is the sole accused in the aforesaid Sessions case involving offence under section 302 of the IPC. The prosecution is that he had murdered his own wife in an incident which took place on 26.12.2009. Final report was laid before the court in the year 2010 itself. Tr.P(Crl). No. 18 of 2017 -2- 3.After complying with all the formalities, the case was scheduled for trial to commence from 2.11.2016. As the petitioner was unwell, he filed an application seeking exemption supported by a medical certificate. The learned Session Judge insisted that the Doctor who had issued the medical certificate should be personally present before the court below. The case was then posted to 9.11.2016. On that day also, the petitioner filed an application along with another medical certificate. The case was posted to the next day and summons was issued to the Doctor. A person authorised by the Doctor appeared and produced the treatment certificate. The counsel who appeared for the petitioner relinquished his vakalat on the same day itself and without even granting a breathing time to the petitioner to appoint a new counsel, non-bailable warrant was issued. Petitioner approached this Court and filed a petition seeking Tr.P(Crl). No. 18 of 2017 -3- direction, which was allowed and the petitioner was directed to surrender before the court below within 10 days and coercive steps were kept in abeyance for 10 days. The petitioner, thereafter, filed an advance petition before the court below on 5.12.2016 along with the order passed by this Court. The case was posted to 13.12.2016 and the petitioner was directed to submit a letter of apology for entertaining the application. While considering the application, the court below had observed that the petitioner would ultimately end up inside the jail. According to the petitioner, the learned Session Judge is grossly prejudiced against him and he will not get fair justice, if the case is tried by the learned Session Judge. It is also stated that the learned Public Prosecutor in charge of the case is a close friend of the husband of the sister of the deceased wife of the petitioner. According to the petitioner, though all these aspects were highlighted Tr.P(Crl). No. 18 of 2017 -4- before the court of Session, his grievance was not considered. - 4.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor. 5.The learned counsel would submit that it is clear from the observations of the court below that the petitioner will not get a fair and impartial trial. The petitioner entertains a reasonable apprehension in his mind that he may not be able to conduct his defence effectively as it appears that the court below has taken a prejudiced view against him. Much reliance is placed on the decision of the Apex Court in **Renjith Takur V. Union of India (** 1987 SC 2386) to contend that the test of likelihood of bias is the reasonableness of the apprehension in the mind of the accused. Referring to the decision of the Apex Court in **G.N.Nayak v. Goa University and Others** (2002 (2) SCC 712) it is contended that it is sufficient for the Tr.P(Crl). No. 18 of 2017 -5- petitioner to establish a reasonable possibility of bias to seek for an order of transfer. - 6.The learned Public Prosecutor would refute the submission and would contend that the only intention of the petitioner is to protract the proceedings on trivial reasons. - 7.I have considered the rival submissions. It appears that comments of the learned Additional Session Judge was called for and the same has been extracted in the order. It is evident that the learned Additional Session Judge had denied the varied allegations which were thrown at him. In the nature of the allegations raised, I do not deem it necessary to admit this petition. The comments of the learned Additional Sessions Judge has been adverted to by the learned Sessions Judge in Annexure-B order. - 8.Having considered the submissions, it is evident that the Sessions case was of the year 2010 and the same was scheduled for trial to commence from 2.11.2016. The Tr.P(Crl). No. 18 of 2017 -6- petitioner produced a medical certificate and to ascertain the genuineness, the Doctor was summoned and the case was adjourned to 4.11.2016. An application for exemption was filed and the case was adjourned to 5.11.2016, 7.11.2016 and to 9.11.2016. When it came out that the petitioner had got himself discharged from the hospital on 4.11.2016, the counsel who appeared for the petitioner relinquished his vakalath. Thereafter, the daughter of the petitioner moved an application for conducting further investigation under section 173(8) of the Code. This petition was dismissed by the court below. Thereafter warrant was issued due to non-appearance of the petitioner. He approached this Court and he was ordered to surrender within 10 days and the warrant was kept in abeyance. Consequently, on his appearance, the warrant was recalled and the case was posted for examination of witnesses on 13.12.2016. The trial could Tr.P(Crl). No. 18 of 2017 -7- not be proceeded with due to the absence of the petitioner on that day also. This is the sequence of events as is borne out from the order passed by the learned Sessions Judge. The court below, after considering the contention of the petitioner and also the comments of the trial Judge, came to the conclusion that the allegations are unfounded and if such applications are entertained, it would only have a demoralizing effect on upright officers. 9.After having independently considered the contentions advanced and also the comments forwarded to the learned learned Sessions Judge, I have no doubt in my mind that the apprehension expressed by the petitioner that he would not get a fair trial is not founded on strong reasons. Transfers of criminal cases cannot be ordered merely on the say - so of a party and that would have a demoralizing effect on the trial Courts. The only allegation of the petitioner is that the Court below had insisted for Tr.P(Crl). No. 18 of 2017 -8- production of medical certificates when the petitioner had sought for exemption on the day the case was posted for trial. The reluctance on the part of the Trial Judge in a case of murder to grant an adjournment on a day when the case was posted for trial cannot result in any sort of apprehension in the mind of the accused. Even if such apprehension is entertained, it can only be misconceived. In **Ashish Chadha V Asha Kumari [** 2012 (1) SCC 680], transfer petition filed on the ground that the Sessions Court had refused adjournment was held to be unsustainable. 10.Before this Court, the petitioner has a case that some observations were made by the learned Sessions Judge while his application for bail was considered pursuant to directions issued by this Court. At the stage of argument before the Court of Session, the same contention was raised. However, no such allegation is seen raised in the Tr.P(Crl). No. 18 of 2017 -9- petition for transfer or in the affidavit accompanying the same. 11.Even otherwise, in **Kanakalata v. State of (NCT) of Delhi and Others** [2015(6) SCC 617], the Apex Court had occasion to observe that casual observations made by a presiding officer would not be a sufficient ground for transfer. It was observed as follows: “15. (8). It is also pertinent to note that any casual observations made by a Presiding Officer of Trial Court would not be a sufficient ground for transfer for the reason that the Trial Courts work in a charged atmosphere and they do not have the benefit of a detached atmosphere of the higher Courts so as to think cooly and decide patiently. In this regard, we may usefully refer to the decision of this Court in K. P. Tiwari v. State of M.P., 1994 Supp (1) SCC 540 , in which this Court has observed as under: "…The higher Courts every day come across orders of the lower Courts which are not justified either in law or in fact and modify them or set them aside. That is one of the functions of the superior Courts. Our legal system acknowledges the fallibility of the Judges and hence Tr.P(Crl). No. 18 of 2017 -10- provides for appeals and revisions. A Judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. It is well said that a Judge who has not committed an error is yet to be born. And that applies to Judges at all levels from the lowest to the highest. Sometimes, the difference in views of the higher and the lower Courts is purely a result of a difference in approach and perception. On such occasions, the lower Courts are not necessarily wrong and the higher Courts always right. It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks - more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher Courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive…." 12.It is to be borne in mind that the assurance of a fair trial is the main criteria for exercise of power under Section 407 of the Code of Criminal Procedure. This Court in numerous decisions have had occasion to hold that the Tr.P(Crl). No. 18 of 2017 -11- Bench and the Bar need to work in tandem and harmoniously if the objects of a fair trial is to be achieved which is a Fundamental Right of every stake holder in the justice dispensation process. If the system of administration of Justice is to prevail, mutual respect and cooperation between the Bench and the Bar is indispensable. The relationship has to be cordial and one should supplement the other. To achieve the desired results in terms of the Constitutional mandate the Bench and the Bar should conduct themselves in a such a manner that the prestige and image of the Judiciary is maintained high and unassailable. Even the slightest discord between the two will lead to undermining the very foundation of the system and the result will be catastrophic. Due to the mounting arrears, and the need for expeditious disposal, both the bench and the Bar are working in a strained environment. It is not unusual that Tr.P(Crl). No. 18 of 2017 -12- sparks fly now and then. The trial Judge is expected to a dynamic functionary and is not expected to be a silent arbiter. As part of the criminal justice delivery system, a trial Judge, without commitment, will only belie his mission. The Counsel who takes pain to defend the accused will have to acknowledge this fact and cooperate with the trial with all the solemnity that it deserves. The highest standard of propriety, decency and self respect are to be maintained and the Court hall should never be made the venue of spilling hate, discord and dissent. Needless to mention, the Judicial Officers by their conduct should not sow any seeds in the mind of the litigant to give a reason to assume that they are biased and have prejudged the issue. The highest standards are to be maintained and the conduct and procedure shall not give any room for apprehension. Tr.P(Crl). No. 18 of 2017 -13- Having considered all the relevant inputs, I am of the view that the petitioner has not made out a case for transfer of proceedings. The minor incidents which have occurred are best left forgotten. This petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/16.02.17