Ker HC | Endeavour of every Judge should be to get rid of his personal predilections and prejudices and to decide cases dispassionately, and not to recuse whenever his or her actions are questioned

Kerala High Court: V.G. Arun J., while disallowing the present petition of transfer, observed, “When the question is one of transfer of a criminal case on the ground of judicial bias, mere allegation of apprehension of bias is not enough, the court has to see whether such apprehension is reasonable or not.”

Background

The Special Public Prosecutor appointed by the State and the de facto complainant/victim seek transfer of the case to another court, on the apprehension that the Special Judge before whom the trial is being conducted is biased against the prosecution.

      The case originated from a complaint filed by the victim, a film actor of repute, stating that, while traveling from Thrissur to Ernakulam on 17-02-2017, she was abducted and subjected to sexual assault and that the sexually-explicit act was recorded. This resulted in Crime no. 297 of 2017 being registered at the Nedumbassery Police Station. After the investigation, the final report was filed alleging commission of offences under Sections 120A, 120B, 109, 342, 366, 354, 354B, 356, 376D, 506(1), 201, 212 read with 34 of the Penal Code, 1860 and Sections 66E and 67A of the Information Technology Act, 2000. The gist of the findings in the final report was that the crime was committed at the instance of the 8th accused, another film actor, pursuant to a conspiracy hatched by him with the other accused. After completion of necessary formalities, the case was committed to the Principal Sessions Court, Ernakulam and numbered as S.C.No.118 of 2018. While so, the victim approached the present Court seeking transfer of the case to a court presided by a lady judicial officer. After due deliberation, the instant Court, vide its judgment in OP(Crl) 344 of 2018, transferred the case to the court of the Special Judge (SPE/CBI-III), Ernakulam, finding it to be the only court in Ernakulam District, competent to try the case.

                    According to the petitioners, the manner in which the Special Judge is proceeding with the trial, her reluctance to pass orders on petitions filed by the prosecution, and the unwarranted and derogatory comments made against the Special Public Prosecutor and the investigating agency, are reasons for the apprehension of bias.

 Contentions

In addition to the mentioning of events depicting bias by the Special Judge, the counsel for the petitioner cited, State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, to highlight the duty bestowed on trial courts to ensure that victims of sexual assault are not harassed during cross-examination. Emphasis was laid on Para 22 of the said judgment, which reads as, “There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The court, therefore, should not sit as a silent spectator while the victim of crime is being cross examined by the defence. It must effectively control the recording of evidence in the court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence.”

Reliance was further placed on Sakshi v. Union of India, (2004) 5 SCC 518 to reiterate that, rules of procedure are handmaidens of justice and Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441, wherein the right to fair trial was held to apply to the accused as well as the victim, as embodied under Article 21 of the Constitution. Moreover, the case of Abdul Nazar Madani v. State of Tamil Nadu, (2000) 6 SCC 204 and Satish Jaggi v. State of Chhattisgarh, (2007) 3 SCC 62 were cited in support of the proposition that Section 407, Code of Criminal Procedure, 1973 clothe the High Court with the power to transfer cases, when it is made to appear that a fair and impartial inquiry cannot be had in any criminal court subordinate to it. The counsel lastly said that in the present facts and circumstances, it would have been fair and proper for the Special Judge to have recused herself from the case.

 Observation

The Court, in pursuance of its decision, made the following observation;

  1. Clarifying the meaning of term ‘bias’ and the underlying principle, the Court said, “The dictionary meaning of the word ‘bias’ is ‘inclination or prejudice for or against one person or group, especially in a way considered to be unfair’. The foundational principle with regard to Judicial Bias ‘nemo debet esse judex in causa propria sua’, precludes a person from being a Judge in his or her own cause.”
  2. The Court considered the following cases, namely;
    • Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167, wherein it was held that, “assurance of a fair trial is the first imperative of the dispensation of justice, and the central criterion for the court to consider, when a motion for transfer is made, is not the hyper sensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous, if the court is to exercise its power of transfer.”
    • State of West Bengal v. Shivananda Pathak, (1998) 5 SCC 513, where the Supreme Court defined judicial bias and touched upon its various facets in the following words,

 “Para 25. Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a particular case.

Para 26. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject-matter in dispute, or policy bias etc. In the instant case, we are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy.”

  • K.Anbazhagan v. Superintendent of Police, (2004) 3 SCC 767,  the Supreme Court observed that the question is not whether the judge is actually biased but whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner.
  • Satish Jaggi v. State of Chhattisgarh, (2007) 3 SCC 62, was a case in which transfer was sought on the ground that the presiding officer was the brother of a sitting MLA, who was a close associate of one of the prime accused. In that factual background, the prayer for transfer was allowed with the following observation, ““We are sure that the present Sessions Judge would have acted in the true sense of a judicial officer. But nevertheless to ensure that justice is not only done, but also seen to be done and in the peculiar facts of the case, we feel that it will be appropriate if the High Court transfers the case to some other Sessions Court in Raipur itself. We make it clear that the transfer shall not be construed as casting any aspersion on the learned Sessions Judge.” The present Court said that the present case ought to be examined in the aforementioned legal backdrop. It went on to say that, “When the question is one of transfer of a criminal case on the ground of judicial bias, mere allegation of apprehension of bias is not enough, the court has to see whether such apprehension is reasonable or not. The moot question here is whether the instances pointed out by the petitioners are sufficient to hold the apprehension of bias to be reasonable.”
  • The Court further referred to the observation held In re: Linahan, 138 F. 2nd 650 (1943), which gives an insight into mental makeup of Judges in the words, “If, however, `bias’ and `partiality’ be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions. Much harm is done by the myth that, merely by taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.”
  • Moreover, the Court found it apposite to reproduce the words of Mr. Justice Frankfurter in Public Utilities Commission of the District Columbia v. Franklin S. Pollak, 343 US 451 (1952) 466, “The Judicial process demands that a judge moves within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that, on the whole, judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted.”

 Decision

While rejecting contention of the petitioners, Court refrained from transferring the case emphasizing the conjoint duty of the Court and the prosecution in the administration of justice, in the words, “…unless the court and the prosecutor work in sync, it will result in either the guilty escaping from the clutches of law or the innocent being punished.”[Victim X v. State of Kerala, 2020 SCC OnLine Ker 5504, decided on 20-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together.

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