Dismissed

K.Palanisamy v. the State Rep. by

Madras HC21 Jul 2015CRL OP/15356/2015

Case brief

AI extract

What is this about?

The High Court dismissed a petition to transfer a criminal trial alleging the Trial Judge's partisanship. After reviewing depositions and the Trial Judge's explanation, the Court found no interference and noted counsel had filed the transfer application after completing cross-examination of several witnesses.

What the court decided

AI extract

K.Palanisamy Vs the State Rep. by — Contempt of Court | Madras HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on : 10.07.2015 Delivered on : 21.07.2015 CORAM

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THE HONOURABLE MR.JUSTICE P.N.PRAKASH

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CRL.O.P.No.15356 of 2015
and
M.P.No.1 of 2015
1.K.Palanisamy
2.Karuppayee ...Petitioners
Versus

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The State rep by Inspector of Police, Kayarlabhad Police Station, Ariyalur Taluk, Ariyalur District. ...Respondent

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Criminal Original petition filed under Section 407 of the Criminal Procedure Code praying to withdraw the case in Spl.CC.No.13 of 2014 on the file of the Mahila Court, Ariyalur and transfer the Spl.CC.No.13 of 2014 on the file of the Mahila Court, Perambalur.

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For Petitioners : Mr.R.Sankarasubbu For Respondent : Mr.C.Emalias, Addl. Public Prosecutor O R D E R

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This petition has been filed to withdraw the case in Spl.CC.No.13 of 2014 on the file of the learned Mahila Court, Ariyalur and transfer the same to the file of the learned Mahila Court, Perambalur.

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Heard the learned counsel for petitioners; the learned Additional Public Prosecutor appearing for the respondent and perused the materials placed on record.

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https://hcservices.ecourts.gov.in/hcservices/

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The victim in this case is a juvenile dalit girl. The case of the prosecution is that the accused herein had abused the victim girl to such an extent that she attempted to commit suicide on 16.10.2014 unable to withstand the taunts, but fortunately the tragedy was averted.

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On the complaint of the victim girl, the respondent Police registered a case in Crime No.162 of 2014 and after completing the investigation, filed a Final Report in Spl.C.C.No.13 of 2014 before the Special Court for POCSO Act Cases for offences under Section 294b IPC, read with Section 12 and 16 of POCSO Act, 2012. After framing of charges against the accused, trial commenced with the examination of witnesses and the trial began on 13.05.2015 with the examination of the victim girl and by 03.06.2015, 16 witnesses were examined on behalf of the prosecution.

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On 04.06.2015, Mr.C.Chinnathambi, learned counsel for the accused filed a petition before the Trial Judge accusing the Trial Judge of partisanship and alleging that the Trial Judge is unnecessarily interfering during the cross-examination of the witnesses and thereby alerting the witnesses to give witness in favour of the prosecution. After making allegations against the Judge, the learned counsel prayed to the Judge to recuse himself from the case and post the case before some other Court.

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It is common knowledge that under the Code of Criminal Procedure, the Trial Judge has no power to suo moto transfer his own case to another Court, especially in a case where the particular Court is a Special Court created under a Statute like in this case. The petition filed by Mr.C.Chinnathambi was numbered as Crl.M.P.No.124 of 2015 and the Special Judge passed the following order:

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"Heard the petitioners, the petitioners have made allegations against the Court and seeks time to file a transfer petition before the High Court. Though the counsel did not state under what provision the petition is filed, in the interest of justice and fair play, time is granted to the petitioner till 19.06.2015 for getting suitable orders from High Court. Notice to Public Prosecutor. Call on 19.06.2015."

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Thereafter, the petitioners[accused] approached this Court in this petition reiterating the allegations made against the learned Trial Judge, but not disclosing about the aforesaid order passed by the Trial Court. A supporting affidavit of Mr.C.Chinnathambi, Advocate has also been filed along with this transfer application. This Court sent a copy of the transfer petition and the supporting affidavit of Mr.C.Chinnathambi to the

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Trial Judge and called for remarks. The learned Trial Judge has sent his explanation dated 02.07.2015, wherein, after denying the allegations made by the accused and his counsel, has added as follows:

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"4.I have perused the affidavit filed by the counsel who appeared for the accused before this Court [Mr.Chinnathambi]. At the outset I humbly submit that the allegations and averments contained therein are utterly false. I have enclosed a copy of the petition filed by the same counsel before this Court for comparing the same with his affidavit. The affidavit is an improved version of the petition filed by the same counsel.

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If the allegations that the Court did not record the objections made by the accused on 13.05.2015 are true then the counsel could have filed a petition or memo at least on the next date of hearing, but he did not do so. Instead without any murmur he cross examined 9 witnesses on 14.05.2015. He cross examined the Sub-Inspector on 25.05.2015.

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On the next day i.e., on 03.06.2015 also he did not file any petition but cross examined the I.O at length.

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The matter came up for trial for examining the last witness for prosecution on 04.06.2015. The Inspector who filed the charge sheet was not present from the morning till evening. The counsel came in the evening around 5.30pm and filed the above petition [copy enclosed] making untenable allegations against the Court and sought a week's time for filing a transfer petition, the Court in the interest of justice granted 15 days time and ordered notice to Public Prosecutor.

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The allegations to the contrary are totally false. This Court conducted the proceedings in a fair manner adhering to the procedures established by Law.

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However I humbly submit that I do not have any objection for transferring the case [Spl.CC.No.13/2014] to any other Court as prayed for by the petitioner.“

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In order to satisfy itself, this Court perused the deposition of the witnesses recorded by the Trial Judge. It is seen that the chief-examination of the victim runs to 1½ pages, but the cross-examination runs to 4½ pages. Similarly, all the witnesses have been subjected to grilling cross-examination by the defence counsel. There is no material to infer that there has been any interdiction by the learned Judge, whilst the prosecution witnesses were cross-examined. Any person experienced in trial work can easily infer from the flow of the answers given by the witnesses in the cross-examination as to whether there had been any interference either by the other side or by the Judge.

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The learned Trial Judge in his explanation referred to above has stated that Mr.C.Chinnathambi, Advocate has given two different versions in his petition before the Trial Court and in his supporting affidavit filed before this Court.

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In the supporting affidavit filed before this Court, Mr.C.Chinnathambi, Advocate has stated that when he protested before the Trial Court, the Trial Judge said that 'if I pass a judgment, that should be confirmed by the High Court and Supreme Court'. This allegation is not there in Mr.C.Chinnathambi's petition before the Trial Judge filed on 04.06.2015. This is merely a sample difference and there are other differences which may not be necessary to extract. The summum bonum of the allegations in the transfer application is that the Trial Judge is not giving a free hand for the counsel to cross-examine the prosecution witnesses.

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This Court carefully considered the affidavits filed by Mr.Chinnathambi, the explanation offered by the learned Trial Judge and the deposition recorded by him and found that there is no basis in the allegations. Mr.R.Sankarasubbu, learned counsel appearing for the accused in his usual vehemence submitted that Mr.Chinnathambi, Advocate has 12 years experience to his credit in trial work and his assertions and apprehensions that the accused will not get a fair trial at the hands of the Trial Judge should not be lightly dismissed.

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The oft quoted aphorism of Lord Chief Justice Hewart in R Vs SUSSEX Justices, Ex parte Mc Carthy [1924] 1 KB 256, [1923] All ER Rep 233, "... But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. ..." may not come to the rescue of the accused in this case.

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Time and again, the Hon'ble Supreme Court has exhorted Trial Court Judges to actively take part in the trial proceedings and use the provisions of Section 165 of Evidence Act without inhibition for unearthing the truth. A proactive Judge is disliked by the accused these days because no one wants truth to succeed. In fact, neither the prosecution nor the defense want justice to triumph and all that they want is that they should succeed in their case by hook or crook. Everyone wants a compliant and passive Judge like a cricket umpire. If a Judge acts like a football umpire, he is subjected to bashing. To quote Sir Stephens the father of the Indian Evidence Act,

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"A Judge or a Magistrate in India frequently has to

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perform duties which in England would be performed by police officers or attorneys. He has to sift out the truth for himself as well as he can and with little assistance of a professional kind. Section 165 is intended to arm the Judge with the most extensive power possible for the purpose of getting the truth. The effect of this section is that in order to get to the bottom of the matter before it the Court will be able to look at and inquire into every fact whatever.“

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The plight of a Trial Judge in India has been succinctly stated by the Supreme Court in K.P.Tiwari Vs State of M.P. 1994 Supp [1] SCC 540,

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"It has also to be remembered that lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks – more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive. It is possible that a particular judicial officer may be consistently passing orders creating a suspicion of judicial conduct which is not wholly or even partly attributable to innoncent functioning.“

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When this Court observed that the victim in this case is a juvenile dalit girl, Mr.R.Sankarasubbu, learned Counsel submitted that the accused are also dalits. This is no answer to the travails of victims hailing from the poor strata of the society. In fact under the POCSO Act and the amended provisions of Section 272 Cr.P.C, a child victim should not be allowed to be even seen by the accused, when she gives evidence. The Hon'ble Supreme Court in Sakshi Vs Union of India reported in AIR 2004 SC 3566 has given clear guidelines as to how victims of sexual abuse should be examined in Courts. It is the duty of the Trial Judge to protect victims of crime from filibustering and intimidating crossexamination by bellicose counsels. If that is not to the liking of the defense Counsel, it cannot be helped.

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In this case, when Mr.Chinnathambi filed a petition before the Trial Judge, he has stayed his hands of from the case by giving time to the accused to approach the superior Court for transfer. This Court is constrained to place on record its appreciation to the manner in which the Trial Judge conducted himself, when he was confronted with such embarassing allegations. If transfers are ordered at the drop of a hat on the basis of such allegations, Trial Judges will loose their morale and the casuality will be justice.

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In the result, this petition stands dismissed. Consequently, connected Miscellaneous Petition is closed.

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Sd/Assistant Registrar(CO)

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//True Copy//
Sub Assistant Registrar
gya
To
1.The Presiding Judge,
Mahila Court, Ariyalur.
2.The Presiding Judge,
Mahila Court,
Perambalur.
3.The Inspector of Police,
Kayarlabhad Police Station,
Ariyalur Taluk,
Ariyalur District.
4.The Public Prosecutor,
High Court, Madras.
CRL.O.P.No.15356 of 2015
SVI (CO)
PSI (21.07.2015)

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K.Palanisamy v. the State Rep. by

Case brief

What is this about?

What the court decided

K.Palanisamy v. the State Rep. by

Case brief

What is this about?

What the court decided

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