Vishnu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941** **Tr.P(Crl.).No.100 OF 2019** **SC 247/2019 OF ADDITIONAL SESSIONS COURT-IV, KOLLAM** ## **PETITIONER:** **VISHNU, AGED 21 YEARS** **S/O.SURESH, LAKSHMI BHAVAN, MYULAKKADU CHERRY, ADICHANALLOOR VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT, PIN-691573** ## **BY ADV. SRI.P.RAHUL** ## **RESPONDENT:** **STATE OF KERALA, (SHO, PARAVOOR POLICE STATION) REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA** ## **SRI C N PRABHAKARAN -SR PP** **THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20.11.2019, THE COURT ON 25.11.2019 PASSED THE FOLLOWING:** **“CR”** ## **R.NARAYANA PISHARADI, J** ************************* Tr.P.(Crl) No.100 of 2019 ----------------------------------------------Dated this the 25[th] day of November, 2019 ## **O R D E R** The petitioner is the first accused in the case S.C.No.247/2019 on the file of the Additional Sessions Court-IV, Kollam. 2. This petition is filed under Sections 407 and 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') praying that the case S.C.No.247/2019 pending before the Additional Sessions Court-IV, Kollam may be transferred to the court of any other Sessions Judge in the Kollam District. There is also a prayer made in this petition to direct the transferee court to conduct de novo trial in the aforesaid case. 3. The averments in the petition can be briefly stated as follows: The case S.C.No.247/2019 pending before the Additional Sessions Court-IV, Kollam is based on Crime No.839/2018 of Paravoor police station, which was registered under Sections 20(b)(ii)B and 29 of the Narcotic Drugs And Tr.P.(Crl) No.100/2019 3 Psychotropic Substances Act, 1985. There are two accused in the case. The trial of the case commenced on 27.08.2019. During the trial, the prosecution examined PW1 to PW10 and marked Exts.P1 to P24 documents and MO1 to MO6 material objects. Thereafter, the case was posted on 05.09.2019 and the accused were examined under Section 313 of the Code on that date. The case was then posted to 17.09.2019 for defence evidence. No evidence was adduced by the accused and therefore, the case was adjourned to 23.09.2019 for hearing. On 23.09.2019, the case was adjourned to 25.09.2019 for hearing. Throughout the cross-examination of the prosecution witnesses by the defence lawyer, the learned Sessions Judge used to interfere and guide and lead the witnesses to give evidence in favour of the prosecution. Learned Sessions Judge interfered with the cross-examination as if he was highly prejudiced in the matter. After recording the evidence of the witnesses, the depositions were not read over to the witnesses as required under Section 278 of the Code. On 20.09.2019, the counsel for the petitioner filed application to obtain certified copies of the Tr.P.(Crl) No.100/2019 4 depositions of the witnesses. After getting the certified copies of the depositions, when the defence lawyer perused them, it came to his notice that, many of the vital questions put by him to the witnesses during the cross-examination and material points elicited from the witnesses, which tend to prove the falsity of the prosecution case, were not recorded by the learned Sessions Judge. Moreover, it has been falsely recorded that the depositions were read over to the witnesses. On 25.09.2019, the petitioner was not prepared to argue the case as he was aware that arguing the case on the basis of the depositions recorded by the trial court would ruin his case. On 25.9.2019, the petitioner filed an application before the trial court seeking adjournment of the hearing of the matter for the purpose of filing a transfer petition. In the affidavit accompanying the said petition, the petitioner had explained what transpired during the proceedings of the court in the trial. On reading the contents of the said petition and the affidavit, the trial court was unnecessarily annoyed and the Sessions Judge used harsh words against the defence lawyer and he declared that he will teach the lawyer a Tr.P.(Crl) No.100/2019 5 lesson. Opportunity of fair trial has been clearly denied to the accused. The petitioner fears that justice would be denied to him in the case. The attitude of the learned Sessions Judge in the trial of the case was highly biased and improper. 4. This Court had called for the remarks of the Additional Sessions Judge-IV, Kollam with regard to the averments in the petition. In the letter dated 16.11.2019, the learned Sessions Judge has narrated in detail the steps taken during the trial of the case. He has further stated in his report that, on 23.09.2019, the counsel for the first accused sought adjournment on the ground of personal inconvenience and hearing of the case was adjourned to 25.09.2019. On 25.09.2019 also, the counsel for the first accused sought adjournment but the court was not prepared to adjourn the case and the court insisted that the matter shall be argued. Learned Sessions Judge has reported that, then without any provocation, the counsel for the first accused filed an application as Crl.M.P.No.1375/2019 stating that he has no faith in the court. The counsel for the first accused then sought permission to Tr.P.(Crl) No.100/2019 6 produce order transferring the case. Therefore, a long posting was given and the case was adjourned to 11.11.2019. On that day also, no order regarding transfer of the case was produced and hence the case was taken for judgment after hearing the counsel for the second accused and the Public Prosecutor. 5. Learned Sessions Judge has also reported that he used to follow the procedure in recording the evidence by reading aloud the depositions, as and when it is recorded. Learned Sessions Judge has stated that, since reading the depositions after recording takes much time, he was following the aforesaid procedure and nobody had raised any complaint against it. Learned Sessions Judge has denied the allegations made against him in the petition and stated that they are baseless. Learned Sessions Judge has also reported that the apprehension of the petitioner that court is biased is baseless. 6. Heard learned counsel for the petitioner and the learned Public Prosecutor. 7. The petitioner has raised two main allegations against the learned Sessions Judge. They are: (1) Learned Sessions Tr.P.(Crl) No.100/2019 7 Judge did not read over the depositions to the witnesses as required under Section 278 of the Code. (2) Learned Sessions Judge unnecessarily interfered with the cross-examination of the prosecution witnesses by the lawyer of the petitioner and guided the witnesses to give evidence in favour of the prosecution. 8. Section 278 of the Code reads as follows: _“_ _**278. Procedure in regard to such evidence when completed.-** (1) As the evidence of each witness taken under Section 275 or Section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected._ _(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary._ _(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in_ Tr.P.(Crl) No.100/2019 8 _the language in which it was given, or in a language which he understands.”_ 9. The object of Section 278 of the Code is twofold, firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes, if any. If the correction suggested by the witness is one which the Judge considers necessary he will make it at once as required by sub-section (1) of Section 278. But, if the correction is such that the Judge does not consider necessary, sub-section (2) of Section 278 requires that a memorandum of the objection be made and the Judge add his remarks, if any, thereto (See **Mir Mohammad Omar v. State of West Bengal : AIR 1989 SC 1785** ). 10. Reading of the deposition in the presence of the accused is not an empty formality. It is not a concession shown by the Magistrate/Judge to the witness. The statutory requirement is to be strictly complied with by the Judges and the Magistrates (See **State of Kerala v. Thomas : 2005 (2) KLD 651** ). Tr.P.(Crl) No.100/2019 9 11. Learned Sessions Judge has stated in his report as follows: _“I may further submit that I was following the procedure in recording the evidence by reading aloud the depositions as and when it is recorded. Since the reading of the depositions after recording takes much time, I was following this procedure and nobody had raised any complaint against this.”_ 12. The above procedure adopted by the learned Sessions Judge has no legal sanction. On a plain reading of Section 278(1) of the Code, it is clear that, it is after completing the recording of evidence of the witnesses that it shall be read over to them. Reading the deposition to the witness, as and when it is recorded, is not a procedure contemplated under Section 278(1) of the Code. Section 278(1) of the Code imposes a duty on the court, after completing the recording of evidence of a witness, to have the deposition read over to the witness in the presence of the accused and or his pleader. This duty cannot be ignored. 13. With regard to the remarks of the learned Sessions Judge that “since the reading of the depositions after recording takes much time, I was following this procedure and nobody had Tr.P.(Crl) No.100/2019 10 raised any complaint against this”, it is only necessary to extract a passage from the decision of this Court in **Bhagavat Singh v. State of Kerala : 2008 (4) KHC 717 : 2008 (4) KLT 1047,** which reads as follows: _“That the Presiding Officer has great work pressure; that while recording of the evidence the Presiding Officer has repeated loudly what he is recording; that ordinarily no objections are raised by anyone or that this procedure takes away a lot of time of the Court are not reasons or excuses that can justify deviation from the mandate. The Presiding Officers must realise that reading of the recorded depositions then and there will help them to correct innocuous human errors and inadequacies in recording. Many a time mind travels faster than the hand and a word or words are omitted to be recorded by the Court. Reading over helps the cause of perfection. More importantly it serves the cause of fairness, transparency and accuracy”._ (emphasis supplied). 14. This Court cannot approve the procedure adopted by the learned Sessions Judge. However, inspite of the irregular procedure adopted by the learned Sessions Judge in complying Tr.P.(Crl) No.100/2019 11 with the mandate of Section 278(1) of the Code, I find that it is not a sufficient ground to transfer the case from his court to any other court. Since the learned Sessions Judge had read over the deposition to the witnesses as and when he recorded it, there was substantial compliance, though not strict compliance, with the provision contained in Section 278(1) of the Code. Since the learned Sessions Judge had read aloud the depositions as and when he recorded them, no prejudice has been caused to the accused by not strictly complying with the procedure under Section 278(1) of the Code. 15. Of course, the petitioner has got a plea that many of the vital questions put by his lawyer to the witnesses during the cross-examination and material points elicited from the witnesses, which tend to prove the falsity of the prosecution case, were not recorded by the learned Sessions Judge. This is only a vague and general allegation. No specific instance or example is given in the petition in this regard. The prosecution evidence in the case was closed on 30.08.2019. It is not satisfactorily explained why the petitioner waited till 25.09.2019 Tr.P.(Crl) No.100/2019 12 to raise such an allegation against the learned Sessions Judge. I find no reason to disbelieve the submission made by the learned Sessions Judge that he used to record the deposition of the witnesses by reading it aloud. Therefore, if any vital questions put to the witnesses had not been recorded by the learned Sessions Judge, the counsel for the petitioner could and should have pointed out it. The very fact that the petitioner waited till the final hearing of the case to raise such allegations against the learned Sessions Judge would indicate that they are the result of afterthought. 16. There is an allegation in the petition that, on 25.09.2019, when the lawyer of the petitioner filed application for adjournment of the case, the learned Sessions Judge got annoyed and he used harsh words against the lawyer and he declared in open court that he will teach the lawyer of the petitioner a lesson. If any such incident had happened, the petitioner would not have waited till 08.11.2019 to file this application for transfer of the case to another court. The very fact that the petitioner has raised such an allegation, more than a Tr.P.(Crl) No.100/2019 13 month later, would indicate that it is the result of deliberation, consultation and afterthought. 17. Yet another allegation raised against the learned Sessions Judge by the petitioner is that he used to interfere with the cross-examination of the prosecution witnesses by the defence lawyer and that he used to guide the witnesses to give evidence in favour of the prosecution. Annexure-D is the copy of the application filed by the petitioner for adjournment of the hearing of the case to another date on the ground that he had lost faith in the court. There is no allegation raised in the affidavit filed in support of this application that the learned Sessions Judge unnecessarily used to interfere with the crossexamination of the prosecution witnesses by the defence lawyer or that the learned Sessions Judge had guided the witnesses to give evidence in favour of the prosecution. It is only in the present transfer petition filed before this Court on 08.11.2019 that such an allegation is raised. Nothing more is required to find that the aforesaid allegation raised against the learned Sessions Judge is baseless. Tr.P.(Crl) No.100/2019 14 18. Section 165 of the Evidence Act confers vast and unrestricted powers on the trial court to put "any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant” in order to discover relevant facts. The said section was framed by lavishly studding it with the word "any" which could only have been inspired by the legislative intent to confer unbridled power on the trial court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not transgress beyond the contours of powers of the court. This is clear from the words "relevant or irrelevant" in Section 165 of the Evidence Act. Neither of the parties has any right to raise objection to any such question. A judge is expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross examination or even during re-examination to elicit truth. The corollary of it is that if a judge felt that a Tr.P.(Crl) No.100/2019 15 witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so because, to err is human and the chances of erring may accelerate under stress of nervousness during cross examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimised. (See **State of Rajasthan v. Ani : AIR 1997 SC 1023** ). 19. If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. It is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness or of the parties, about any fact, relevant or irrelevant". But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship (See **Ram Chander v. State of** Tr.P.(Crl) No.100/2019 16 ## **Haryana : AIR 1981 SC 1036** ). 20. Transfer of a Sessions Case from one court to another cannot be ordered on the mere asking by an accused. ## 21. In **Gurcharan Dass Chadha v. State of Rajasthan :** **AIR 1966 SC 1418,** the Apex Court has held as follows: _“The law with regard to transfer of cases is well settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained, but_ Tr.P.(Crl) No.100/2019 17 _must appear to the Court to be a reasonable apprehension”._ 22. A prayer for transfer should be allowed only when there is a well substantiated apprehension that justice will not be dispensed impartially, objectively and without any bias (See **Nahar Singh Yadav v. Union of India : AIR 2011 SC 1549** ). Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake. However, the apprehension of not getting a fair and impartial trial is required to be reasonable and not imaginary. There must be a reasonable apprehension on the part of the party to a case that justice will not be done. Mere allegation of apprehension that justice will not be done in a given case does not suffice. The court has to be convinced that the apprehension alleged is reasonable (See **Captain Amarinder Singh v. Parkash Singh Badal : (2009) 6 SCC 260** ). 23. Bias means a pre-conceived opinion or a predisposition or pre-determination to decide a case or an issue in a particular manner. It is, in fact, a condition of mind, which sways Tr.P.(Crl) No.100/2019 18 judgments and renders the Judge unable to exercise impartiality in a particular case. 24. In the instant case, there is no real basis for the bias attributed to the learned Sessions Judge by the petitioner. The apprehension expressed by the petitioner is baseless. 25. When the case came up for hearing before the learned Sessions Judge on 25.09.2019, the petitioner had filed Annexure-D application stating that he had no faith in that court and that the hearing of the case may be adjourned. The learned Sessions Judge had then adjourned the case to 11.11.2019. But, the petition for transfer of the case was filed before this Court only on 08.11.2019. 26. In this context, it is advantageous to extract the following paragraph from the decision in **Berely v. Xavier : 1986 KLT 1078** , which reads as follows: _''This Court has noticed an increasing tendency to file such transfer petitions on the basis of unfounded allegations against Criminal Courts. Sessions Judges and Magistrates had occasion to complain that they are facing considerable difficulties in the conduct of trials. Very often they_ Tr.P.(Crl) No.100/2019 19 _are told to their face "you may dismiss the petition. I will go to the High Court". ....... Such actions have a demoralising effect on the criminal judiciary and seriously affect administration of criminal justice. No person, not a litigant, not a counsel, not a prosecutor, not a court should contribute anything to the demoralisation of the criminal judiciary. Apparently, threat of filing transfer petition is being held as Damocles sword against judicial officers”._ 27. In the aforesaid circumstances, I have no hesitation to hold that the allegation of bias raised against the learned Sessions Judge is baseless and unfounded. The prayer for transfer of the case to another court is only to be rejected. 28. However, I take note of the fact that the case is now posted for pronouncing judgment without hearing the counsel for the petitioner. It is only proper to give an opportunity to the counsel for the petitioner in the lower court to address the arguments in the case. 29. In the result, the petition is dismissed. But, it is directed that the learned Sessions Judge shall post the case to a convenient date for hearing the counsel for the petitioner and Tr.P.(Crl) No.100/2019 20 give him an opportunity for hearing. The judgment in the case shall be pronounced only thereafter. This Court is confident that the learned Sessions Judge will dispose of the case on merits, uninfluenced by the fact that the petitioner had approached this Court for transfer of the case to another court. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/22/11/2019 Tr.P.(Crl) No.100/2019 21 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE FIR IN CRIME NO.839/2018 OF PARAVOOR POLICE STATION ANNEXURE B TRUE COPY OF THE FINAL REPORT IN CRIME NO.839/2018 OF PARAVOOR P0LICE STATION ANNEXURE C TRUE COPY OF THE PROCEEDINGS OF THE SESSIONS COURT, KOLLAM IN S.C.NO.247/2019 AS EXTRACTED FROM THE E-COURT WEBSITE ANNEXURE D A TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE IV-ADDITIONAL SESSIONS COURT, KOLLAM IN SC NO.247/2019** RESPONDENT'S EXHIBITS: NIL TRUE COPY PS TO JUDGE