‘Judge not a mere spectator’: Kerala High Court refuses to transfer murder trial

“A judge is not a mere spectator, but is an active participant in every legal proceeding with the objective to elicit the truth. Nevertheless, in the same breath I say that a judge must exercise her powers without transgressing into the areas of the counsel for the parties, without any hint of partisanship and without appearing to frighten, coerce, confuse or intimidate the witnesses or the parties. She must take both the prosecution and defence with her. Ultimately, the goal is that truth must triumph,” the September 29 order read.

When the high court made queries from the trial court judge, she claimed that the case had been derailed due to the unnecessary objections raised by the accused persons’ counsel and “as the accused persons were deliberately protracting the trial, their bail bonds were cancelled, and they were remanded to judicial custody.”

The high court also quoted the “saying of Greek philosopher Socrates on the qualities required in a judge, namely–to hear courteously, to answer wisely, to consider soberly and to decide impartially”.

Justice CS Dias said that a judge must maintain a delicate balance between active judicial control of the proceedings and the appearance of complete neutrality.

According to the judgment, the accused persons had hatched a conspiracy. On February 12, 2018, they gathered illegally and attacked a person with deadly weapons and explosive substances, who succumbed to fatal injuries. The accused persons contended, during the recording of evidence of a witness, several unfortunate incidents took place at the instance of the trial court judge, “which have given a genuine and reasonable apprehension in petitioners’ (the accused persons) minds that they may not receive a fair and impartial trial”.

The accused persons claimed that their counsel requested the trial judge to record the evidence of the witness in the question-and-answer form, as given in the Indian Evidence Act, because the witness “appeared to be tutored and had given a parroted version of the alleged incident”. The trial judge, however, did not pass any order, after which the counsel filed an application which was dismissed by the trial court.

The dismissal was challenged before the high court.  While the decision was pending, the accused filed a plea before the Thalassery sessions court seeking transfer of the case to any other court. However, the transfer plea was dismissed. The accused persons further claimed that on May 25, when the trial court judge got to know about the transfer petition, he cancelled the bail bonds of all the accused persons and sent them to judicial custody. This order was later stayed by the high court, and subsequently the bail application was allowed.

The accused persons have stated that “their confidence has been eroded” and “if the proceedings are continued before the present Judge, there is a possibility of further complications, delay, and a strained atmosphere.”

‘Motivating the witness’

Advocates S Rajeev and MS Aneer, appearing for the accused persons, argued that the trial court judge, in “a knee-jerk reaction, cancelled the bail bonds of all the accused persons, without giving them an opportunity of being heard”. The counsel contended that the trial court judge kept on “motivating the witnesses in the box to speak up” and repeatedly said that the “court was with them”. The counsel stated that the trial court judge had behaved “immaturely” towards the accused persons’ counsel.

Government counsel Asaf Ali T submitted that the accused persons’ sole intention was to delay the case being decided and that as per Bharatiya Nagarik Suraksha Sanhita, “the evidence must ordinarily be recorded in narrative form, and that it may be taken in the question-answer form only at the discretion of the presiding judge.”

‘Discretion of judge’

The high court observed that “the mere preference of a party for a particular mode of recording of evidence cannot curtail the discretion of the judge. The contention that the witness was giving a tutored version does not, by itself, confer on the accused a right to insist upon the question-and-answer form.” According to the bench, there was nothing to prove “any legal infirmity or error” in the decision of the trial court judge in refusing to record the evidence of the witness in the question-and-answer form.

Referring to the cancellation of bail bonds by the trial court judge, the high court stated that “the test to transfer proceedings is not whether the impugned orders are correct in law, but whether, having regard to the totality of the circumstances, the apprehension that a fair and impartial trial may not be had is reasonable, genuine and justifiable.”

Accordingly, the high court refused to transfer the case to another court and said that “I am certain that the bench and the bar would iron out the creases and proceed with the trial.”

On the claim of the trial judge that she “only assured the witness of protection and built his confidence to enable him to depose without fear”, the high court was of the view that though the witness should feel safe to speak without fear, “the court should refrain from motivating any witness, because it would naturally send a wrong message to the accused that the court is against them.”