BERELY Vs. XAVIER

JUDGEMENT

(1.) An affidavit was filed before the Sessions Judge alleging that he committed contempt of his own Court, with a request to make reference to the High Court under S.15(2) of the Contempt of Courts Act, 1971 (for short 'the Act'). Learned Sessions Judge declined to make reference. This action is challenged under Art.226 of the Constitution of India.

(2.) Petitioner herein is one of the accused in Sessions Case 61/1985 of the Fourth Additional Sessions Court, Ernakulam facing charges under S.302, 324 and 447 I.P.C. read with S.34 I.P.C. At the stage of examination of P.W.2, petitioner filed Crl.M.C. 313/1986 in this Court seeking transfer of the case to one of the other benches of the Sessions Court. Learned Sessions Judge offered remarks, on being, required to do so. This Court accepted his remarks, substantially found against the allegations levelled against him and dismissed the transfer petition with the expression of hope that learned defence counsel and the learned Sessions Judge will ignore whatever had transpired and cooperate in the further trial of the case. In the course of the order (Ext. P2), learned single Judge, who dismissed the transfer petition, extracted a part of the remarks submitted by the learned Sessions Judge and commented on the "intemperate language" used in remarks, noticed that the remarks cast aspersions, inter alia, on the learned defence counsel and observed that more restrained language should have been used in the remarks. This order was passed on 26-6-1986.

(3.) It appears, subsequently, the learned defence counsel withdrew from the case and the, accused told the learned Sessions Judge that they had paid the full fee to the counsel and they were particular that they should be represented by that counsel. Learned Sessions Judge could very well have appointed counsel for the accused at the cost of the State and proceeded with the trial of the case which was already part-heard. Instead, the learned Sessions Judge, making a significant, though misplaced, gesture (I hope this will not be a precedent), wrote to the High Court requesting that he may be relieved from the duty of conducting trial of the case. In deference to his request, the case has been transferred to the file of one of the other Sessions Judges at Ernakulam.