Dincy d/o Mohammed Sageer v Nisar and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934 Tr.P(Crl.).No. 11 of 2013 () ---------------------------SC.104/2011 of PRINCIPAL ASSISTANT SESSIONS COURT, IRINJALAKUDA PETITIONER(S):VICTIM-DEFACTO COMPLAINANT ----------------------------------------------------- DINCY D/O.MOHAMMED SAGEER, AYYARIL HOUSE, AZHIKODE VILLAGE KODUNGALLUR TALUK. BY ADVS.SRI.P.M.ABDUL JALEEL (KODUNGALLUR) SRI.K.SHAMEER MOHAMMED RESPONDENT(S):ACCUSED AND COMPLAINANT ---------------------------------------------------- 1. NISAR S/O.ABOOBACKER, THOPPIYIL HOUSE, ACHANGADI DESOM P.VEMBALLUR VILLAGE, KODUNGALLUR TALUK-680 664. 2. STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE KODUNGALLUR, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERANKUALAM, KOCHI-31. R1 BY ADV. SRI.N.M.MADHU R BY PUBLIC PROSECUTOR SMT.S.HYMA THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: T.P.(CRL.).11/13 ## APPENDIX PETITIONER'S EXHIBITS: P1:TRUE COPY OF THE ORDER IN TMP NO.3862/2012 OF THE SESSIONS COURT, THRISSUR DATED 30.11.2012. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== T.P.(Crl.). No. 11 OF 2013 ==========================** Dated this the 12[th] day of February, 2013 ## **ORDER** Petitioner is the prosecutrix in S.C.No.104 of 2011 on the files of the Court of the Additional Sessions Judge, Irinjalakuda which stood transferred to the Court of the Principal Assistant Sessions Judge, Irinjalakuda as per Ext.P1 order dated 30.11.2012 of the Court of the Sessions Judge, Thrisur. This petition has been filed challenging Ext.P1 order and seeking for a direction to transfer the said case to the Court of Additional Assistant Sessions Court, Irinjalakuda virtually to re-transfer it to that court. The delation against the first respondent/accused is that he has committed offences punishable under sections 376, 420, 384 and 506(1) of the Indian Penal code. The learned Additional Assistant Sessions Judge in the midst of the trial in S.C.No.104 of 2011, viz., after the examination of some of the prime witnesses, was transferred and posted as the **T.P.(Crl.).11/13** 2 Principal Assistant Sessions Judge in that station itself namely, in Irinjalakuda and a new Judge, a woman Judge, took over that office. Thereupon, the first respondent herein/the accused filed TMP.No.3862 of 2012 before the Court of the Sessions Judge, Thrissur to transfer S.C.No.104 of 2011 to Principal Assistant Sessions Judge, Thrissur. After hearing, as per Ext.P1, the case was transferred from the Court of the Additional Assistant Sessions Judge, Irinjalakuda to the Court of the Principal Assistant Sessions Judge, Irinjalakuda. That order was passed on 30.11.2012. Subsequently, the case was transferred and the trial was proceeded with. The petitioner herein who is the prosecutrix now filed this transfer petition assailing Ext.P1 order of transfer and seeking a transfer of the case back to the Court of the Additional Assistant Sessions Judge, Irinjalakuda. 2. The learned counsel for the petitioner contended that in the light of proviso to section 26(a) of the Code of Criminal **T.P.(Crl.).11/13** 3 Procedure, an offence under section 376 shall be tried as far as practicable by a court presided over by a woman. Proviso to section 26(a) reads thus:- “Provided that any offence under section 376 and sections 376A to 376D of the Indian Penal Code (45 of 1860) shall be tried as far as practicable by a Court presided over by a woman.” 3. In this case, it is to be noted that at the time when the trial commenced, the Court of Additional Assistant Sessions Judge was presided over by a man and in fact, some of the prime witnesses including the petitioner were already examined and their evidences were recorded by him. Essentially, Ext.P1 order was passed with a view to enable the Judge who thus recorded the evidence to give the judgment. It is to be noted that Ext.P1 order is being challenged solely based on provision of law under proviso to section 26(a). A mere perusal of the said proviso would reveal that there is no inviolable mandate that at all circumstances, offence under section 376 shall be tried only by a court being presided over by a woman. What has been provided thereunder is that as far as practicable, an **T.P.(Crl.).11/13** 4 offence under section 376 shall be tried by a court presided over by a woman. The very expression 'as far as practicable' would invariably suggest the same. 4. While considering and appreciating the contentions, the expression 'as far as practicable' in its true sense has to be borne in mind. The learned counsel appearing for the first respondent submitted that the trial was proceeded with even after transfer and virtually what remains is hearing of the arguments. The learned counsel also relied on the decision of the Hon'ble Apex Court in **Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal** reported in **(2011) 9 SCC 638** for the limited purpose to draw attention of this Court to the cardinal principle of law in criminal trial that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it. As already noticed, the proviso to section 26(a), Cr.P.C mandates only that as far as practicable, an offence under section 376 shall be tried by a court presided over by a **T.P.(Crl.).11/13** 5 woman. Thus, in short, the 'practicability' has to be examined in this case. It is admitted by the petitioner that her examination was over and the evidence was admittedly, recorded by the man Judge who now functions as the Principal Assistant Sessions Judge. There cannot be any dispute with respect to the position that the general rule is that as far as practicable, a Judge who recorded the evidence in an enquiry or trial shall be permitted to give the judgment. In this case, evidently, the examination was conducted and the evidence was recorded not by a woman Judge. Taking into account the fact that trial in this case was conducted in part and evidences were recorded by the presiding officer who now functions as the Principal Assistant Sessions Judge, Irinjalakuda while functioning as the Additional Assistant Judge at Irinjalakuda itself and even after Ext.P1, continued with the trial in the case and virtually, arguments and then pronouncement of judgment are left in the matter. This fact is not disputed before me. When such be the position, the general rule **T.P.(Crl.).11/13** 6 as mentioned above persuades me to hold that it would only be conducive in the interest of justice to permit the same Judge to continue with the trial and render the judgment. I am of the view that proviso to section 26(a) cannot be pressed into service in this case, at this stage. In such circumstances, I am of the considered view that transferring, virtually, re-transferring the case solely to satisfy the proviso to section 26(a) would not be in the interest of justice in view of the general position of law that it would always be better to allow the Judge who conducted the trial and recorded the evidence to render the judgment. In the facts and circumstances of this case, I do not find any merit in the challenge against Ext.P1 order. This Crl.M.C is liable to fail and accordingly, it is dismissed. **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** **spc/** 7 ## **T.P.(Crl.).11/13** **C.T. RAVIKUMAR, J.** 8 ## **T.P.(Crl.).11/13** **JUDGMENT September, 2010**