Kerala High Court
The Victim vs The State Of Kerala on 25 February, 2019
Equivalent citations: (2019) 1 CRIMES 766, AIRONLINE 2019 KER 816
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940
OP(Crl.).No. 344 of 2018
AGAINST THE ORDER/JUDGMENT IN SC NO.118/2018 ON THE FILES OF THE
DISTRICT COURT & SESSIONS COURT, ERNAKULAM DATED 18-06-2018
CRIME NO.297/2017 OF NEDUMBASSERY POLICE STATION, ERNAKULAM
PETITIONER/S:
THE VICTIM
IN CR.297/17 OF NEDUMBASSERY POLICE STATION.
BY ADVS.SRI.M.AJAY
SRI.K.R.RAJKUMAR
RESPONDENT/S:
1 THE STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN-682 018.
2 THE CIRCLE INSPECTOR OF POLICE
PERUMBAVOOR POLICE STATION,
PERUMBAVOOR, PIN-683 542.
* 3 ADDL. R3. SUNIL N.S.,
S/O. SURENDRAN, NEDUVELIKUDY HOUSE,
ILAMBAKKAPILLY KARA, NETTENCITY BHAGOM,
VENGOOR WEST, ERNAKULAM, PIN-683546.
* ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED
25/02/2018 IN IA 1/2019 IN OP(CRL) 344/2018.
** 4 ADDL. R4. GOPALAKRISHNAN @ DILEEP,
S/O. LATE G. PADMANABHA PILLAI,
PADMASAROVARAM, ALUVA.
** ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED
25/02/2018 IN IA 2/2019 IN OP(CRL) 344/2018.
O.P(CRL.) NO.344 OF 2018 2
BY ADVS. SRI.JOHN S. RALPH
KUM. KEERTHANA SUDEV
KUM.S.SWATHY
SHRI RALPH RETI JOHN
SHRI VISHNU CHANDRAN
SMT.P.V.DENCY
SRI.B.RAMAN PILLAI (SENIOR ADVOCATE)
SRI.E.VIJIN KARTHIK
SRI.K.J.JOSEPH (ERNAKULAM)
SRI.K.S.BHARATHAN
SRI.SUJESH MENON V.B.
SRI.THOMAS T.VARGHESE
SRI.V.JOHN THOMAS
OTHER PRESENT:
BY SENIOR PUBLIC PROSECUTOR SRI. SUMAN CHAKRAVARTHY
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 25.02.2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(CRL.) NO.344 OF 2018 3
JUDGMENT
The survivor of an alleged case of gang rape has approached this Court with a prayer to transfer the proceedings, in which she is the de facto complainant from the Principal Court of Session, Ernakulam, where the case is now pending, to an appropriate Court presided over by a Woman Judge.
2. The survivor is an actress of some repute. According to the prosecution, on 17.2.2017, she was on her way from Thrissur to Ernakulam by a car. When the car reached Nedumbasserry, an accident was stage managed whereby another vehicle rammed on the rear of the vehicle in which she was travelling. A commotion was created and some of the accused, who were travelling in the offending vehicle, got into her car and took over its control. They proceeded to Ernakulam and during the journey, in the confines of the car, under threat to her life, the survivor was subjected to serious sexual offences. The commissions of the gruesome acts were allegedly recorded on a mobile phone by some of the accused, with a view to ensure that her identity is revealed. After threatening her from disclosing the incident to anyone else, she was set free late in the night outside the house of a film producer, under the belief that she O.P(CRL.) NO.344 OF 2018 4 would not venture to divulge the incident to anyone. However, she contacted the Police and set the law in motion.
3. The crime registered at her instance was investigated and final report was laid before the jurisdictional Magistrate on 17.02.2017. Further investigation was ordered in the course of which, it was revealed that other conspirators were also involved. It is the case of the prosecution that the execrable assault on the victim was part of wider criminal conspiracy hatched by the 8 th accused, who is a well-known actor in the industry. The perpetrators of offence had allegedly acted on his behalf as hired goons. After concluding the further investigation, report dated 22.11.2017 was submitted before the learned Magistrate. The case was committed to the Court of Session and the same was taken cognizance of on 27.2.2018 and is now pending as S.C.No.118 of 18 before the Principal Sessions Court, Ernakulam. Final report reveals that the accused are indicted under Sections 120(A), 120(B), 109, 342, 366, 354, 354 (B), 356, 376 (D), 506 (1), 201, 212, read with Section 24 of the Indian Penal Code and Sections 66E, 67A of the Information Technology Act, 2000. The prosecution has cited as many as 355 witnesses to prove its case. The accused Nos.1 to 4 and 6 are still languishing in custody. O.P(CRL.) NO.344 OF 2018 5
4. While the case was pending as aforesaid, the petitioner filed a petition before the Sessions Court, Ernakulam under Sections 327(2) and (3) of the Cr.P.C. seeking the following reliefs;
(a) a special court be constituted to try the case,
(b) the trial be held in camera
(c) the trial be conducted by a lady Judge and
(d) the media be barred from discussing proceedings of the said case.
5. The learned Sessions Judge took the view that no specific directions need be issued insofar as prayers (b) and (d) are concerned as the interests of the petitioner would be protected by Sections 327(2) & (3) which provides that the trial shall be conducted in camera and those proceedings shall not be reported without the previous permission of the court concerned. Insofar as constituting a Special Court is concerned, it was held that the Sessions Court was powerless. With regard to the prayer for transferring of the case to a Woman Judge is concerned, the court scoured the District and came to the conclusion that there are no Woman Judges of competent jurisdiction in Ernakulam District. The learned Sessions Judge also took note of the fact that by memorandum dated 5.4.2018, directions have been issued by the High Court to expedite the trial proceedings. O.P(CRL.) NO.344 OF 2018 6
6. The petitioner is aggrieved by that part of the order by which the learned Session Judge rejected her prayer for trial by a Woman Judge holding that no suitable officers are available within the Ernakulam District having the jurisdictional competence to try the case.
7. Sri. M.Ajay, the learned counsel appearing for the petitioner, submitted that victim in a case of gang rape is entitled to all the protection and solace offered to such persons under various statutes. It is contended that sexual violence, particularly a case of gang rape, is a deeply dehumanizing act and is an unlawful intrusion on the right of privacy and sanctity of a woman. Placing much reliance on the proviso to Section 26(a) and the 2 nd proviso to Section 327 of the Code, it was contended that the statutory mandate is that the offence under Sections 376, 376A to 376E of the IPC shall be tried as far as practicable by a court presided over by a Woman Judge. The learned counsel has also referred to the Constitutional Bench Decision of the Supreme Court in Justice K.S. Puttaswamy (Retd.) & Another v. Union of India and Others [(2018) 4 SCC 651] and it was contended that the mandate under Section 26(a) and the 2 nd proviso to Section 327 of the Code has been declared as an essential facet of the right to privacy and thus a fundamental right of a woman. O.P(CRL.) NO.344 OF 2018 7 He pointed out with vehemence that the United Nations Declaration of Basis Principles of Justice for Victims of Crime and Abuse of Power, 1985 declares that rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity. According to the learned counsel, her prayer that the case in which she is the victim be tried before a Woman Judge cannot be dismissed as a mere wishful thinking and she is, as a matter of right, justified in praying that the matter be made over to a Woman Judge as otherwise it would be a serious blow to her honor and would offend her self esteem and dignity. He would point out that the State has taken a decision to sympathetically consider the request of the petitioner and had requested this Court to constitute a special court for that purpose. The learned counsel prays that in view of the statutory mandate, it is only just and proper that the case be made over to a Woman Judge of competent jurisdiction at Thrissur or Ernakulam.
8. Sri. Suman Chakravarthy, the learned Senior Public Prosecutor, submitted that the State has already expressed its assent before this Court that a speedy disposal of the case is essential and a Special Court be constituted headed by a Woman Judge for the trial of the said case for a period of one year or until the completion of trial O.P(CRL.) NO.344 OF 2018 8 whichever is earlier. He points out that the accused Nos.1 to 4 and 6 were arrested immediately after the incident and their bail application was dismissed by the Court taking note of the gravity of the allegations. The delay in the trial has serious implications all around is the submission. The State has no serious objection in transferring the criminal proceedings to a Court presided by a Woman Judge even if it means that case has to be transferred to an adjoining District, argues the learned Public Prosecutor.
9. A preliminary objection touching the maintainability was raised at the time of admission. The same was rejected by this Court in view of the pronouncement of the Hon'ble Supreme Court in Kamlesh Kumar v. State of Jharkhand and Others [(2013) 15 SCC 460] wherein it was held that the High Court in exercise of its powers under Section 407 of the Cr.P.C. and Articles 227 and 235 of the Constitution of India has absolute jurisdiction to transfer any criminal case pending before one competent court to be heard and decided by another court within the jurisdiction of this Court.
10. This Court, after hearing the rival submissions and taking note of the long pendency of the case, the continued incarceration of the accused Nos.1 to 4, the necessity to have a speedy and O.P(CRL.) NO.344 OF 2018 9 expeditious trial, and the statutory provisions, by a detailed order held that prayer sought for by the petitioner is legitimate and legal. However, it was felt than an endeavor could be made to make over the case to a Court presided over by a Woman Judge in Ernakulam District or in the adjoining Thrissur District. By order dated 24.1.2019, the Registry was directed to furnish details of Courts of competent jurisdiction presided over by a Woman Judge in the District of Ernakulam or in the neighboring District of Thrissur.
11. The reports of the Registrar (Subordinate Judiciary) have been placed before me.
12. I have gone through the reports which are dated 29.01.2019 and 1.2.2019.
13. The reports reveal that the only Woman Judge in the Ernakulam District is the Special Judge (SPE/CBI)-III, Ernakulam, and the said officer is manning a Special Sessions Court exclusively for the trial of offences under the Prevention of Corruption Act, 1988 investigated by the Delhi Special Police Establishment and also other offences investigated by CBI. It is also stated that the High Court has issued notification dated 3.6.2017 in exercise of powers conferred by O.P(CRL.) NO.344 OF 2018 10 Sections 9(3) and 9(4) of the Cr.P.C, allowing the said court to exercise jurisdiction in the Courts of Session. However, it is pointed out that the Hon'ble Chief Justice of India had requested the Hon'ble Chief Justice of Kerala that it is desirable that CBI Courts exclusively deal with cases registered under the Prevention of Corruption Act, 1988 and other cases investigated by the CBI. Based on the said request, the Hon'ble Chief Justice of Kerala has issued directions to the Principal District Judge not to give additional work to the CBI Courts. The learned Registrar has also pointed out that there are three Special Judges hearing CBI cases in Ernakulam District. In Thrissur, there are two Woman judges. However, one of the Judges is functioning as the Motor Accidents Claims Tribunal and is, therefore, not jurisdictionally competent to try a Sessions Case. The other Woman Judge is the Principal District and Sessions Judge and being the administrative head and due to the large pendency of cases, both Civil and Criminal, the transfer of case to the said court is not feasible.
14. Pursuant to the order passed as above, the accused Nos. 1 and 8 have filed separate applications seeking intervention. I have heard Sri. John S. Ralph, who appears for the 1 st accused and Sri. B. Raman Pillai, the learned Senior Counsel, who appears for the O.P(CRL.) NO.344 OF 2018 11 8th accused. The learned counsel appearing for the 1 st accused submitted that the accused would be subjected to gross prejudice if the case is transferred out from Ernakulam District. However, it was submitted that he has no grievance if the case is tried in any Court at Ernakulam as the 1st accused is still in judicial custody and he also wants to see that the trial is expedited. The learned Senior Counsel appearing for the 8th accused submitted that if the trial is shifted it would cause grave inconvenience to the accused, the witnesses and the lawyers who have been engaged. He would contend that the Special Courts constituted in the State of Kerala are all manned by male Judges and there is no need to grant any special consideration to the petitioner. According to the learned Senior Counsel, the request for entrusting the case to a Woman Judge would work out injustice.
15. I have considered the submissions advanced by the learned counsel appearing for both sides and also the learned Senior Public Prosecutor. I have also gone through the report placed before this Court by the registry.
16. The main prayer of the petitioner is to transfer the proceedings pending before the Principal Sessions Judge to be tried and disposed of by a Woman Judge. The only Woman Judge of O.P(CRL.) NO.344 OF 2018 12 competent jurisdiction in Ernakulam District is the Special Judge (SPE/CBI)-III, Ernakulam. However, the direction issued by the Hon'ble Chief Justice of India that it is desirable that the CBI courts shall not be burdened with other cases, stares at the face of this Court. In order to break the stalemate and to ensure that the directions of the Hon'ble Chief Justice of India is upheld in letter and spirit a report was called for which was placed before this Court by the Registry. In the report it is stated that 30 Calendar Cases and one Sessions case are pending before the said Court. Out of the said cases, in four Calendar cases trial is going on and in other three Calendar Cases charge has been framed and the same is ripe for trial. It is also stated that no new cases are scheduled from March onwards. The above report would show that the pendency is not very high in the Court of the Special Judge. Furthermore, there are two other Special Judges who deal with CBI cases registered under the Prevention of Corruption Act, 1988 and other crimes. The pendency is nothing compared to the regular courts. The transfer of the instant case to the Special Judge will not disable the said court from trying the CBI cases as scheduled. Taking this fact into perspective, it is felt that making over of the instant case to the Special Judge will inure to safeguard the interest of the victim, the accused and the State and it O.P(CRL.) NO.344 OF 2018 13 will also be expedient in the interest of justice. That appears to be the only option available. The transfer of this solitary case will also not violate the directions issued by the Hon'ble Chief Justice of India as it is not likely to disrupt the schedule of the Special Judge. Furthermore, the Chief Justice of Kerala has issued directions to the learned District Judge not to make over any case to the said court for trial and disposal. Having considered all the relevant facts, I am of the view that prayer sought for by the petitioner to transfer the case in which she is the victim to an appropriate Court manned by a Woman Judge is to be allowed.
In the result, this petition will stand allowed. S.C.No.118 of 2018 on the file of the Principal Sessions Judge Ernakulam will stand withdrawn and the same will stand transferred to the Special Judge (SPE/CBI)-III, Ernakulam. The Sessions Judge shall transmit the records without any further delay. The learned Special Judge shall endeavor to dispose of the matter expeditiously after ensuring that the trial of CBI Cases is not disrupted or affected in any manner.
SD/-
RAJA VIJAYARAGHAVAN V., JUDGE PS //TRUE COPY// P.A. TO JUDGE O.P(CRL.) NO.344 OF 2018 14 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF CRL.MP 786/18 FILED BY THE PETITIONER BEFORE THE HON. PRINCIPAL SESSIONS COURT, ERNAKULAM DATED 14/03/2018.
EXHIBIT P2 A TRUE COPY OF ORDER OF THE HON. PRINCIPAL SESSIONS COURT, ERNAKULAM IN CRL. MP 786/18 DATED 18/06/2018.
RESPONDENTS' EXHIBITS:-NIL