Akash M.V & Ors. vs State Of Kerala & Anr.

C.S.Dias,J.

The Transfer Petition and the Criminal Miscellaneous Case are filed by accused Nos.1 to 3 in S.C.No.596 of 2018 on the file of the Court of the Additional Sessions Judge-III, Thalassery, which arises from Crime No.202 of 2018 registered by the Mattannur Police Station, Kannur.

The transfer petition is filed to transfer the above case from the present Court to any other court of competent jurisdiction, and the Criminal Miscellaneous Case ('petition', for brevity) is filed to set aside the order refusing to record the evidence of PW2 in the question-and-answer form instead of in the narrative form. As both cases are between the same parties and arise out of the same crime, they are being disposed of by this common order.

The relevant factual matrix for the determination of these cases is as follows:

Pursuant to the directions of this Court, the learned Sessions Judge has filed a report, inter alia, stating as follows: S.C.No.596 of 2018 arises from the incident of the year 2018. The case is included in the Action Plan Phase-V for arrears reduction and expeditious disposal. Although the trial was scheduled for October 2025, the trial was adjourned at the request of the petitioners’ counsel, who underwent knee replacement surgery. The prosecution has cited 142 witnesses. Only one witness has been examined in full, and the examination of two other witnesses is incomplete. The trial has been derailed due to the unnecessary objections raised by the petitioners’ counsel. On 18.05.2026, while the chief examination of PW2 was being recorded in the narrative form, as provided under Section 311(2) of the BNSS (erstwhile Section 276 CrPC), the petitioners’ counsel insisted that the evidence be recorded in the question-and-answer form. Nevertheless, the learned counsel cross-examined PW2 in part. On 21.05.2026, the learned counsel submitted an application to eschew the evidence of PW2 as it was not recorded as insisted by him. On the following day, when CW2 was present for examination, the learned counsel insisted that an order be passed on his application before commencement of the examination of the witness. Accordingly, the impugned order was passed. Before the commencement of the chief-examination of PW3, the witness appeared to be frightened and distressed. The learned Sessions Judge assured the witness of protection and built his confidence to enable him to depose without fear, and he regained his composure and gave his testimony. Despite passing the impugned order, the counsel for all the accused persons refused to cross-examine the witness, which compelled the court to record that there was no cross-examination for the accused. The application was filed only to record the evidence in question-and-answer form, not to record the witness's demeanour. As the counsel refused to cross-examine the witness, the accused persons were directed to cross-examine the witness, but all of them refused. As the accused persons were deliberately protracting the trial, their bail bonds were cancelled and they were remanded to judicial custody. Nevertheless, the High Court has set aside the order. The impugned order was passed only because the accused attempted to protract the trial. The learned Sessions Judge has no personal ill-will, grievance or animosity towards the petitioners’ counsel. The observations made during the proceedings were only to maintain the decorum, preserve the integrity of the trial and ensure compliance with the statutory mandate for a fair and expeditious trial.

I have heard Sri. S. Rajeev, the learned counsel for the petitioners, Sri. T. Asaf Ali, the learned Director General of Police and Sri. Jawahar Jose, the learned counsel for the additional 2^nd respondent (victim - father of the deceased).

Sri. Rajeev raised a preliminary objection that Sri. Asaf Ali cannot argue these cases because he appeared before this Court in W.P.(C) No.6630 of 2018 and W.A.No.628 of 2018 for the victim. The learned counsel placed reliance on the decisions of the Hon'ble Supreme Court in Manoj and Others v. State of Madhya Pradesh [(2023) 2 SCC 353], Harendra Rai v. State of Bihar and Others [AIR 2023 SC 4331], and the decisions of this Court in Babu v. State of Kerala [1984 KLT 164], Chandradas v. State of Kerala [2005 (2) KLT SN 23] and Subash Chandran v. State of Kerala [1981 KLT SN 69] to bolster his contention that the prosecutor is an officer of the court and he must act fairly towards the accused and the victim. Therefore, if Sri. Asaf Ali is permitted to appear in these cases, he would not be acting fairly to the accused persons.

Sri. Asaf Ali countered the above submission by contending that there is no legal prohibition on counsel who once appeared for a victim later appearing as the State Public Prosecutor. He placed reliance on the Division Bench decision of this Court in Balakrishna Pillai v. State of Kerala [1999 KHC 39] to buttress his contention.

In Balakrishna Pillai’s case (supra), the Division Bench has observed thus:

The objection, therefore, is not merely whether there is a statutory prohibition against such subsequent appearance, but whether the materials on record disclose a conflict of interest, or circumstances giving rise to a reasonable apprehension that the prosecutor may not discharge his statutory duty fairly and independently. No such material has been placed before this Court. The mere fact of a prior appearance for the victim, by itself, is insufficient to establish such a disqualification.

For the aforesaid reasons, the preliminary objection raised by Sri. S. Rajeev is held untenable.

Sri. Asaf Ali, on the contrary, raised a preliminary objection that the transfer petition is not maintainable in law because the Court of Session has already dismissed the transfer petition filed by the petitioners. The petitioners must, therefore, challenge the order dismissing their transfer petition.

Sri. S. Rajeev countered the above preliminary objection by drawing the attention of this Court to the proviso to sub-section (2) of Section 447 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which unequivocally provides that a proceeding to transfer a case from one court to another can be exercised by this Court only after a transfer petition filed before the Court of Session is dismissed. Thus, according to him, the proper remedy is to file a fresh transfer petition, and not to challenge the order dismissing the transfer petition.

It is thus necessary to refer to Section 447 of the BNSS, which reads as follows:

The proviso to the sub-section (2) to Section 447 explicitly operates as a condition precedent to invoke this Court’s power to transfer a proceeding; it does not require the applicant to challenge the Sessions Judge's order by way of a separate proceeding. Once an application for transfer within the Sessions Division has been made and rejected, the statutory remedy before this Court becomes available. Whether the same grounds ultimately justify transfer is a matter going to the merits of the case.

For the aforesaid reason, I overrule the preliminary objection raised by the prosecution, and hold that the transfer petition is maintainable.

Sri. S. Rajeev argued that the petitioners’ counsel had only requested the learned Sessions Judge to record the demeanour of the witness, which has led to the these unwarranted litigations. The learned Sessions Judge, in a knee-jerk reaction, cancelled the bail bonds of all the accused persons, without giving them an opportunity of being heard, and remanded them to judicial custody. Only due to this Court's timely intervention, the accused persons were enlarged on interim bail on the following day. In the interim bail order, this Court has emphatically observed that the bail cancellation order was ex facie illegal. In fact, the learned Sessions Judge kept on motivating the witnesses in the box to speak up, and repeatedly said that the Court was with them. This act has created an apprehension in the mind of the accused that the learned Judge was biased and that they would be denied justice. Furthermore, the learned Judge behaved immaturely towards the petitioners’ counsel, who is a senior member of the Bar, which was unwarranted. As the relationship between the counsel and the learned Judge is strained, it would be just and appropriate to transfer the proceedings from the present court, and set aside the impugned order.

Sri. Asaf Ali vehemently opposed the transfer petition and the petition. He submitted that, even assuming that the learned Sessions Judge has passed a wrong order, that is not a ground for transfer. The accused persons' sole intention is to protract the case being decided. Moreover, the Court of Session has dismissed the transfer petition by a reasoned order. There is no change in circumstances or error in the impugned order warranting the filing of a fresh transfer petition before this Court. Sri. Asaf Ali also contended that the whole problem has stemmed from the application filed by the petitioners’ counsel to record the examination-in-chief of PW2 in the question-answer form. Sri.Asaf Ali drew the attention of this Court to Section 311(2) of the BNSS, which states that 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. He also referred to Sections 142, 146 and 148 of the Bharatiya Sakshya Adhiniyam, 2023, and the decisions of the Hon'ble Supreme Court in Makhan Lal Bangal v. Manas Bhunia and Others [(2001) 2 SCC 652] to drive home his contention that the evidence of a witness is ordinarily to be recorded in the narrative form. He, therefore, prayed that both the cases may be dismissed.

Sri. Jawahar Jose supported the contentions of Sri.Asaf Ali.

The questions that arise for consideration in the two cases are:

The controversy leading to these cases has arisen during the chief-examination of PW2, who, according to the accused persons, had testified like a parrot, which established that he was tutored. Therefore, it was necessary to record his evidence in the question-and-answer form.

In the above context, it is apposite to refer to Section 311 of the BNSS, which reads as follows:

The above provision undoubtedly establishes that the ordinary rule is to record the evidence in the narrative form. Although the discretion conferred on the Presiding Judge is undoubtedly wide, it is a judicial discretion and must necessarily be exercised on relevant considerations and in furtherance of a fair trial. 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. The appropriate safeguards available in the course of cross-examination remain open to the defence, and any material contradiction, inconsistency or circumstance bearing upon the credibility of the witness can be brought on record in accordance with law. Nonetheless, if the discretion were shown to have been exercised arbitrarily, for an extraneous purpose, or in a manner causing prejudice to a party, the order would remain amenable to judicial review.

In Makhan Lal Bangal's case (supra), the Hon'ble Supreme Court has held as follows:

The materials on record do not substantiate any legal infirmity or error in the discretion exercised by the learned Sessions Judge in refusing to record the evidence of the witness in the question-answer form. Thus, I answer question No.1 against the petitioners.

The main plank of the petitioners seeking transfer of the proceedings is that the learned Sessions Judge, after refusing to record the evidence of PW2 in the question-answer form, dismissed the petitioners' application for the said purpose and, thereafter, cancelled the bail bonds of the accused persons, and motivated the witnesses. Consequently, the petitioners have lost faith in the learned Sessions Judge and are apprehensive that they may not get justice.

Now, by the upholding of the impugned order, refusing to record the evidence of PW2 in the question-answer form, the petitioners' grievance on the said question does not subsist any longer.

Likewise, the order cancelling the bail bonds of the accused persons being set aside by this Court and the petitioners being enlarged on interim bail, which order was subsequently confirmed by making the interim order absolute, the petitioners' said grievance also stands redressed.

It is well-nigh settled that merely because a court has passed an erroneous order, the same is not a ground to order the transfer of a case. 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. An erroneous order may therefore be relevant as one circumstance in a cumulative assessment, although it cannot, standing alone, constitute a ground for transfer.

The Hon'ble Supreme Court in K.P. Tiwari v. State of M.P [1994 Supp. (1) SCC 540] has observed that the officers of the District Judiciary work under a charged atmosphere and are constantly under 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.

There is a profusion of precedential authority laying down the principles for ordering the transfer of a case from one court to another in exercise of the power of this Court under Section 447 of the BNSS, which is pari materia with S.407 of the Code of Criminal Procedure.

In Balakrishna Pillai v. State of Kerala [2000 KHC 646], the Hon’ble Supreme Court has held as follows:

This Court in Berely v. Xavier and Another [1986 KHC 278] has observed thus:

The petitioners filed the transfer petition before the Court of Session on identical grounds. However, the same was dismissed on the finding that the petitioners had failed to make out justifiable grounds for the Court to exercise its discretionary power in their favour.

On an overall consideration of the facts, the materials on record, the reasons in the impugned order and the exposition of law in the aforecited decisions, I do not find any valid ground to transfer the proceedings. Thus, I answer question No.2 against the petitioners as well.

Notwithstanding the above findings on the questions raised in these petitions, before parting with these cases, especially since the petitioners have a grievance that the learned Sessions Judge motivated the witnesses to speak up, which action has created an apprehension in the mind of the accused that the learned Judge is biased and that they would be denied justice, I would like to make the following observations, which is not finding against the learned Sessions Judge, but to remind the delicate balance that a Judge must maintain between active judicial control of the proceedings and the appearance of complete neutrality.

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.

Here, it is not out of place to reminisce and state 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.

The learned Sessions Judge in her report has stated that she only assured the witness of protection and built his confidence to enable him to depose without fear, and the witness regained his composure and continued his testimony.

I have no doubt in my mind that, if there is any threat or intimidation to a witness, the Court should step in and provide all the necessary protection to the witnesses, especially in cases involving those who wield money and muscle power. The witness should feel safe and protected to depose without the fear of being haunted by those against whom he proposes to testify. But, 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. Judges must deal with cases in accordance with the fourfold principles of Socrates, so that such unnecessary situations can be averted. I leave it at that. I am certain that the Bench and the Bar would iron out the creases and proceed with the trial. The learned Sessions Judge shall ensure that both sides are afforded a full and effective opportunity to participate in the trial, including by suo motu reopening the evidence and permitting the counsel for the accused to cross-examine the witnesses. The counsel for the accused persons are expected to cooperate with the Court and avoid unnecessary interruptions or adjournments. Considering that the case is of the year 2018 and given the number of witnesses cited, the trial shall be conducted with due expedition. The learned Sessions Judge is directed to dispose of the case, untrammelled by any observation made in this order.

With the above observations, the transfer petition and petition are dismissed.