IMPORTANT POINTS
The Special Judge had used strong expressions against the Special Public Prosecutor and the investigating agency, in the objections filed by the accused, to the petitions for stopping the proceedings filed by the prosecution, which are produced as exhibits in the transfer petition, it is the definite stand of the accused that no such incident had taken place.

ORDER :

The Special Public Prosecutor appointed by the State and the de facto complainant/victim in S.C.No.118 of 2018 pending on the files of the Additional Special Judge (SPE/CBI)-III, Ernakulam, seek transfer of the case to another court, on the apprehension that the Special Judge before whom the trial is being conducted is biased against the prosecution.

2. The case originated from a complaint filed by the victim, a film actor of repute, stating that, while travelling from Thrissur to Ernakulam on 17.2.2017, she was abducted and subjected to sexual assault, and that the sexually explicit act was recorded. This resulted in Crime No. 297 of 2017 being registered at the Nedumbassery Police Station. After the investigation, the final report was filed alleging commission of offences under Sections 120A, 120B, 109, 342, 366, 354, 354B, 356, 376D, 506(1), 201, 212 read with 34 of the IPC and Sections 66E and 67A of the Information Technology Act, 2000. The gist of the findings in the final report is that the crime was committed at the instance of the 8th accused, another film actor, pursuant to a conspiracy hatched by him with the other accused.

3. After completion of necessary formalities, the case was committed to the Principal Sessions Court, Ernakulam and numbered as S.C.No.118 of 2018. While so, the victim approached this Court seeking transfer of the case to a court presided by a lady judicial officer. After due deliberation, this Court, vide its judgment in O.P(Crl) 344 of 2018, transferred the case to the court of the Special Judge (SPE/CBI-III), Ernakulam, finding it to be the only court in Ernakulam District, competent to try the case. The learned Special Judge framed charges on 6.1.2020 and commenced trial from 30.1.2020 onwards. As on date, the prosecution has examined 80 witnesses and has marked 49 Exhibits and 87 material objects.

4. According to the petitioners, the manner in which the learned Special Judge is proceeding with the trial, her reluctance to pass orders on petitions filed by the prosecution, and the unwarranted and derogatory comments made against the Special Public Prosecutor and the investigating agency, are reasons for the apprehension of bias.

5. Heard Sri.S.Sreekumar, learned Senior Counsel appearing for the victim and Sri.Suman Chakravarthy, learned Senior Public Prosecutor appearing for the State of Kerala.

6. The following are some of the instances, highlighted by the learned counsel for the petitioners;

(i) The victim (PW1) was permitted to be cross-examined by the 8th accused, 4 months and 18 days after completion of cross-examination by the other accused. PW1 was bound over for an uncertain period, without considering the trauma she had to undergo during the interregnum. PW1 was subjected to searching cross-examination for nine days by the counsel for the 8th accused and on many occasions, scandalous questions were asked, challenging the credibility of PW1 and even attacking her character. In spite of the prosecution raising objections against such questions and the mode of examination, the Special Judge refused to intervene, thereby permitting PW1 to be harassed and vexed, resulting in the witness breaking down on more than one occasion. A copy of the deposition of PW1 is made available in a sealed cover.

(ii) Though the proceedings were held ‘in camera’, a battery of defence lawyers were permitted inside the court hall during the cross examination of PW1, while derogatory questions were asked by the counsel for the 8th accused, with reference to the video recording of the incident.

(iii) Some of the witnesses were castigated by the Special Judge irked by their alleged Facebook posts, resulting in those witnesses losing their will and confidence to testify.

(iv) The 8th accused sought a report from the Central Forensic Science Laboratory regarding the contents of the memory card furnished to him, as directed by the Honourable Supreme Court. This was permitted and the report was handed over to the 8th