Prasanth @ Unnikuttan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** **Tr.P(Crl.).No.67 OF 2019** **(TO TRANSFER SC NO.412/2014 ON THE FILES OF THE ADDITIONAL DISTRICT COURT, OTTAPALAM)** ## **PETITIONER/PETITIONER:** **PRASANTH @ UNNIKUTTAN, AGED 29 YEARS, S/O.LATE SANKARANKUTTY,POTHUVAYIL HOUSE, KANNAMANGALAM.P.O,VENGASSERY, AMBALAPARA, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.P.JAYARAM SRI.SARATH CHANDRAN K.B.** ## **RESPONDENT/RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** BY PUBLIC PROSECUTOR SRI. RAMESH CHAND **THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 26.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Tr.P(Crl.).No.67 OF 2019 2 ## **ORDER** The petitioner herein is the accused in SC No.412/2014 on the file of the Additional Sessions Court, Ottappalam, in which case, he stands charge sheeted for having committed offence punishable under Section 302 of the IPC. 2. At the fag end of trial, the petitioner filed an application before the Court of Session seeking transfer of above proceedings. The learned Sessions Judge taking note of the fact that the trial is in an advanced stage and the specific directions issued by this Court in an earlier order, dismissed the application by Annexure-A1 order. 3. Pursuant thereto, the petitioner has approached this Court with this petition with a prayer to withdraw the case from the Additional Sessions Court, Ottapalam and to transfer the same to any court of competent jurisdiction. 4. In view of the assertions made in the petition, a report was called for from the learned Sessions Judge. The report has been placed before this Court by the Registry. 5. Heard Sri.P.Jayaram, the learned counsel appearing for the petitioner, and the learned Public Prosecutor. Tr.P(Crl.).No.67 OF 2019 3 6. Sri.P.Jayaram, the learned counsel appearing for the petitioner, submitted that certain incidents which took place before the court below have led the petitioner to have a reasonable apprehension that a fair and impartial trial cannot be had before the Court below. The learned counsel pointed out that the bail granted to the petitioner was unilaterally canceled by the learned Sessions Judge and certain observations were made, which were quite unwarranted. The said order was overturned by this Court holding that the materials relied on by the learned Sessions Judge were not of such a nature as to have a custody trial. He contended that when trial commenced thereafter, there was constant interference from the trial court and the lawyer engaged by him was prevented from effectively cross examining the prosecution witnesses. Left with no alternative, he moved a petition seeking transfer, which was dismissed by the learned Sessions Judge. To prevent the trial from proceeding in a biased manner, the petitioner refused to appear before the court below. Later, he was arrested and produced and the trial recommenced. A very junior lawyer with little or no experience was engaged as legal aid counsel to conduct the trial. Not even a breathing time was granted to go through the papers. His request to appoint a lawyer of his choice was also denied to him. If the trial is proceeded with the learned Sessions Judge, Ottapalam justice will be the inevitable causality, submits the learned counsel. Tr.P(Crl.).No.67 OF 2019 4 7. On the other hand, the learned Additional Sessions Judge, in her detailed report, has narrated the sequence of events and has emphatically denied the allegations made in the petition. It is stated that as the case related to the year 2013, the case was listed for trial on a day-to-day basis on 12.11.2018 so as to commence from 14.01.2019 and to end on 22.01.2019. It appears that prior to the commencement of the trial, the learned Public Prosecutor intimated the court that the petitioner herein was undergoing detention in the Sub Jail, Ottappalam in Crime No.894/2018. The court below issued a production warrant to produce the accused on 16.01.2019. On 16.01.2019, the witnesses summoned were present. However, the counsel appearing for the accused, Sri.Rajan, filed an application stating that the accused was in custody and that he was not in a position to examine the witnesses without getting proper instructions. While so, the learned Public Prosecutor filed an application seeking cancellation of bail granted to the petitioner alleging that the petitioner and his men were trying to intimidate witnesses. The learned Sessions Judge proceeded to cancel the bail granted to the accused. The aforesaid order was challenged by the petitioner herein by filing Crl.M.C No.584 of 2019 before this Court. By order dated 23.01.2019, this Court quashed the said order and the bail granted to the petitioner was restored. This Court further directed the court below to grant reasonable opportunity to Tr.P(Crl.).No.67 OF 2019 5 the petitioner to cross examine the witnesses, who have already been examined and it was specifically ordered that the said procedure shall be completed within a period of 15 days. It was made clear that the petitioner shall also co-operate with the said direction, provided the witnesses are also available for cross examination. 8. It appears that the petitioner, in the meanwhile, filed an application before the Court of Session, Palakkad seeking transfer of proceedings under Section 409 of the Cr.P.C. The learned Sessions Judge taking note of the observations made by this Court in Crl.M.C.No.584 of 2019, dismissed the petition on 30.01.2019 holding that the same was without merit. The witnesses were re-called and they were scheduled to appear from 28.01.2019 to 01.02.2019. The petitioner was also available before the court on 28.01.2019 and 29.01.2019. On 30.01.2019, he made himself scarce and failed to appear before the trial court. The bail bond was forfeited and notice was issued to sureties. The petitioner remained at large for more than six months. On 04.07.2019, he was re-arrested and was produced before the learned Sessions Judge. However, since the counsel, who had appeared for the petitioner, did not appear before the court below to continue with the trial as ordered by this Court, the court below proceeded to appoint a legal aid counsel to conduct the trial to defend the petitioner. The learned Sessions Judge has reported that the legal Tr.P(Crl.).No.67 OF 2019 6 aid counsel has 7 years' experience in conducting criminal Trials. She has denied that she has interfered with the cross examination or committed any act, which may have sowed seeds of doubt in the mind of the accused. 9. Before adverting to the contentions advanced, it has to be remembered that the assurance of a fair trial is the main criteria for exercise of power under Section 407 of the Code of Criminal Procedure. In the case on hand, what is contended is that a fair and impartial trial cannot be had in the Court below. Several allegations are raised, which all centered around certain procedural aspects, and the learned Sessions Judge in the remarks submitted by her has dealt with the same in extenso and has stated that there is no merit in the allegations. 10. The fact remains that on the day on which the case was listed for trial, the petitioner was in custody in connection with some other case. His presence was secured and all but the investigating officer has been cross examined by the counsel of his choice. It is also an admitted fact that while allowing his petition challenging the cancellation of bail, this Court had directed the accused to co-operate with the trial proceedings and the court below was ordered to complete the cross examination within 15 days. The petitioner absconded and his presence could be secured only after about 6 months. Tr.P(Crl.).No.67 OF 2019 7 11. The first grievance of the petitioner is that the Court below cancelled the bail which, according to him, showed that the learned Sessions Judge was nursing a bias towards him. From the records, it appears that certain allegations were made by some of the witnesses that the petitioner had threatened them and the said fact prompted the investigating officer to file an application seeking cancellation, which was allowed. The murder case, in which the petitioner is involved, is the outcome of a political feud between rival political parties. The assembly of rival party workers in and around the Court premises might have taken a toll on the trial Judge as well. The order was promptly set aside by this Court and the petitioner was also directed to co-operate. In that view of the matter, his apprehension that the court below was nursing some sort of an ill-will towards him appears to be without basis. 12. The next grievance of the petitioner is that sufficient leeway was not given to the defense counsel to cross examine the witnesses. As held by Justice R.Basant, as he then was, in **Gopalakrishnan @ Mani v. State of Kerala[1]** the trial Judge is not a mere observer or umpire. He is and ought to be a disinterested dynamic participant in the trial that goes on before him. The learned Judge went on to observe as follows:- “44. ......We deem it necessary to remind the trial Judges of their real role, duty and mission as part of the criminal justice 1 [2012 (1) KLD 167] Tr.P(Crl.).No.67 OF 2019 8 delivery system. The trial Judge is an inevitable and vital part of the system of criminal justice administration. A system becomes a system only when every member of the system acts to perform its duties to further the common mission or task. The attainment of a crime free society is the mission, dream or goal of any system of administration of criminal justice worth its salt. Every member - the legislator, the investigator, the adjudicator and the correctional facility has to play the complimentary role resting on his shoulders. The most acceptable definition of Justice is that it ensures 'to each what he deserves'. Criminal justice delivery system must ensure punishment to the guilty because that is what the guilty deserves. Identification of the guilty and imposition of punishment on the guilty is the duty of the criminal justice delivery system. Imposition of punishment is justice because the guilty deserves punishment. Such punishment is justice to him and justice to society because society deserves protection from the crime and the criminal. In discharging this duty, there is also the obligation to ensure acquittal of the innocent. The primary duty is of course to ensure punishment of the really guilty. There is a concomitant duty - equally onerous and sublime, to secure exoneration of the innocent. Courts have to discharge this twin duty - of ensuring punishment of the guilty, at the same time, zealously ensuring exoneration of the innocent. 45. The mantle of the trial Judge is that of an unbiased impartial adjudicator. He has to ensure fair trial. Every reasonable opportunity must be given to an indictee to know, understand and controvert the allegation / evidence against him. Every reasonable opportunity must be given to the accused to establish his innocence. It is part of the sublime principles of natural justice or of inalienable human rights that an impartial, unbiased adjudicator must dispassionately after a fair trial pronounce on the guilt or innocence of the indictee. 46. But this is not to say that the trial Judge is a mere observer or umpire. He is and ought to be a disinterested dynamic participant in the trial that goes on before him. He is, to borrow, an oft repeated adage, not to be a blind and mute spectator or umpire in the drama of adversarial duel before him. He must be a dynamic disinterested participant in the trial. We remind trial Judges, the oft repeated imagery, employed in the judicial academies that the trial is a voyage. You have to cross the ocean of untruth, half truths, exaggeration and embellishments and reach the ultimate shores of truth and Tr.P(Crl.).No.67 OF 2019 9 justice. In the voyage, the captain of the ship, the helmsman, the holder of the rudder is the trial Judge. Counsel for the rival contestants are the oarsmen in the voyage. The duty is on the captain of the voyage to navigate the vessel to the shores of truth and justice. The importance of the trial Judge in the voyage has to be alertly perceived and understood. It has to sink in to the minds of all trial Judges. The trial Judge is not one who has the holy water in his mouth, who cannot spit it or swallow it and hence must remain mute and inactive all through. A trial Judge who does not have the passion to discover truth and do justice is a liability to the system. He denies to himself the rapturous pleasure that can be derived when truth is discovered and justice is dispensed. As part of the criminal justice delivery system, a trial Judge, without commitment, will only belie his mission.” 13. The learned Sessions Judge is expected to be a dynamic functionary and she is expected to take an active role. This should not be mistaken by the accused to assume that the learned Judge is partisan or that the objective was to ensure that the accused is sent to the gallows. Both sides are expected to maintain the highest standards of ethics expected of them and proceed with the trial and ensure that the prestige of the judiciary is maintained in the highest of stature. Neither the accused nor victim should get a feeling that his or her cause would be defeated within the four walls of the Court. In the facts of the instant case, I am of the view that the apprehension entertained by the petitioner is without basis. 14. Now that tempers have flayed and one of the party has approached this Court seeking to transfer the proceedings, it is all but natural, for a person to be cynical and have an apprehension that he would not get a fair trial, for Tr.P(Crl.).No.67 OF 2019 10 which, **Gopalakrishnan** (cited supra) provides an answer. The Division Bench, speaking through Basant.J reminded the Bench and the Bar that they need to work in tandem and harmoniously if the objects of a fair trial are 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 co-operation 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, the dockets are bursting at its seams and both the Bench and the Bar are working in a strained environment. It is not unusual that sparks fly now and then. The trial Judge is expected to be a dynamic functionary and is not expected to be a silent arbiter. It has been held time and again by this Court that a trial Judge, who does not have the passion to discover truth and does justice, is a liability to the system. 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 co-operate with the trial Tr.P(Crl.).No.67 OF 2019 11 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. 15. Having considered all the relevant facts, I am of the view that the petitioner has not made out a case for transfer. However, I am of the view that certain directions are to be issued to safeguard the interests of the petitioner. (a) The petitioner has requested that he be permitted to engage Sri.Rajan, Advocate, Ottappalam to continue with the trial. If Sri. Rajan files a Vakkalath, he shall be permitted to defend the accused. (b) If the Investigating officer or any other witnesses, who have been cross examined by the legal aid counsel need to be recalled, the petitioner may file an application, which shall be allowed by the trial court and the learned counsel shall be permitted ample opportunity for cross examination. (c) If the petitioner files an application to examine any witnesses on his side, the said application shall be considered and orders shall be passed by the learned Sessions Judge. Tr.P(Crl.).No.67 OF 2019 12 (d) 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. With the above observations, this petition will stand dismissed. I direct the learned Sessions Judge to post the matter on 18.09.2019 and proceed with the trial giving a fair opportunity to the accused to defend himself. **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** **//TRUE COPY// P.A. TO JUDGE** IAP Tr.P(Crl.).No.67 OF 2019 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE ORDER DATED 31.01.2019 IN CRL.M.P.NO.251/2019, ON THE FILES OF COURT OF SESSIONS, PALAKKAD.** **ANNEXURE A2 TRUE COPY OF THE ORDER DATED 23.01.2019 IN CRL.M.C.NO.584/2019, HIGH COURT OF KERALA.** - **ANNEXURE A3 TRUE COPY OF THE ORDER DATED 17.01.2019 IN CRL.M.P.NO.15/2019 IN S.C.NO.412/2014, ON THE FILES OF ADDL.SESSIONS COURT, OTTAPALAM.** - **ANNEXURE A4 TRUE COPY OF THE FIRST INFIRMATION REPORT AND FIRST INFORMATION STATEMENT IN CRIME NO.1461/2013 OF OTTAPPALAM POLICE STATION.** - **ANNEXURE A5 TRUE COPY OF THE FINAL RPPORT IN CRIME NO.1461/2013 OF OTTAPALAM POLICE STATION, SUMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM AND TAKEN COGNIZANCE IN C.P.NO.19/2014.** ## **RESPONDENT'S EXHIBITS:** NIL