XXXXX Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the victim of Crime No. 297/2017 of Nedumbasserry Police Station, which is now pending before the Principal Session Court, Ernakulam, as S.C.No.118 of 2018, after having been transferred to the said court from the Court of Additional Special Session Judge (SPE/CBI)-III, Ernakulam. This transfer petition is filed by the petitioner, praying for an order to transfer the said case from the said court to any other Sessions Court having jurisdiction to try the same. The ground on which such transfer is sought is the personal bias of the learned judge presiding over the said court. The facts which led to the filing of the transfer petitioner are as follows; The petitioner is a film actor with a good reputation. On 17/2/2017, the petitioner was subjected to sexual assaults in a moving vehicle and such sexual assaults were recorded by the culprits. Based on this incident, Crime 297/2017 was registered by the Nedumbasserry Police. After completing the investigation, a final report was submitted by the Police on 18/5/2017 against seven accused persons. The aforesaid final report was submitted based on an investigation conducted by a Special Team constituted for the said purpose. Subsequently,the Special Investigation Team, submitted a supplementary final report 22/11/2017, by implicating another film actor as the 8th accused, who is the 9th respondent in this petition. The allegation is that the said assaults were committed by the other accused, as instructed by the 8th accused.

(2.) Earlier, the petitioner moved this court by filing OP(Crl).No.344/2018, for an order to conduct the trial of the said case, by a court presided by a woman judge and to transfer the said case to such court from the Principal Sessions Court, Ernakulam, where it was pending at the relevant time. As per judgment dtd. 25/2/2019, this court allowed the said prayer and accordingly the case was transferred to Additional Special Session Judge (SPE/CBI)-III. At the relevant time that was the only competent court in Ernakulam presided by a woman judge.

(3.) The trial of the said case commenced before the Additional Session Court on 30/1/2020 and as on 14/10/2020, eighty witnesses were examined by the prosecution, including the petitioner as PW1, 49 Exhibits and 87 Material Objects were marked. At that time, the State and the petitioner, submitted Tr.P.C.No.49/2020 and Tr.P.C.No.50/2020 before this Court, respectively, seeking transfer of the said case from the said Additional Sessions Court, to any other court. The main ground raised in both the said petitions was the personal bias of the learned Sessions Judge. In support of the averments in the petition submitted by the Prosecution, the then Special Public Prosecutor submitted an affidavit, which contained certain aspects claimed to be transpired in the court during the trial, which according to them, were indicative of the hostility of the learned Sessions Judge against the prosecution. The petitioner herein also raised allegations against the learned Sessions Judge to the effect that, during her cross examination as PW1, she was subjected to certain objectionable questions by the counsels for the accused, challenging her dignity, which was not prevented by the learned Session Judge. However, as per Annexure-A1 order, this court rejected both the said transfer petitions by a common order, holding that the petitioner and the prosecution could not produce any materials to substantiate the personal bias of the learned judge, so as to warrant a transfer. Even though the said order was challenged by the State, before the Honourable Court Supreme Court, the SLP filed by them was dismissed, and thus Annexure-A1 order has become final.