Point of Law : When there is an apprehension in the mind of a party approaching the court that fairness of hearing be undermined, this court is empowered to transfer the proceeding.

ORDER :

This petition is filed by the father of the victim who died following an incident occurred on 12.02.22 at about 7.10 p.m. at Kavungalparambu, Chelakkulam kara, Pattimattom Village, Kizhakkambalam. The accused, four in numbers, arraigned in the case on hand had filed an application as Crl. M.C. No.405/2022 seeking bail before Court of Sessions, Ernakulam. The allegation was that the son of the petitioner was assaulted at 7.10 p.m. near his house by the accused who are activists of CPM, a political party, and died on account of the injury sustained.

2. The allegation of the petitioner in the application on hand was that though the bail application filed on 18.02.2022 was posted a number of times, despite oral demands made severally and demand made also through written objection filed before the Court on 09.03.2022, copies of the relevant records were not given to him. According to him, under Section 15A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘SC/ST (POA) Act’) the victim or his dependent is entitled to get copies of relevant records pertaining to Crime No.106/22 in which bail application was moved, to defend it properly. According to him, the court responded to his oral demands by stating that the materials asked for are not necessary. According to him, his counsel was heard on 09.03.2022 but, the prosecutor was not directed by the court to furnish the copies of the relevant records pertaining to the crime.

3. It is further contended that the father of the judicial officer is the District Secretary of the political party to which the accused also belong. The learned counsel has also placed for perusal, some face book postings to establish that the judicial officer herself has some affinity to the political party in which the accused are activists. According to him, the above context has created an apprehension in his mind that he won’t get a fair hearing in the bail application.

4. According to the learned Senior Public Prosecutor, there is no basis for the apprehension of the petitioner. According to him, petitioner cannot have such an apprehension of bias from the judicial officer for the mere reason that copies were not served on him. According to him, for the reason that father of the judicial officer seized of the bail application is holding a post in a political party, the officer cannot be doubted for bias. According to him, if an order for transfer of the bail application from the said court to another court is passed in the context, it would set a bad precedent. It is further contended that the offences alleged in the crime being those coming within the purview of the SC/ST(POA) Act, Special Court constituted under the Act alone will have jurisdiction to entertain the bail application and the court being the only one in the District, the judicial officer though has a mind to avoid it, she is helpless being disempowered to transfer it to Special Courts situated in other Districts.

5. Sri. K.S. Arunkumar, the counsel for the accused who entered on the admission day of the transfer petition has submitted that, the allegations made in the transfer petition are false. According to him, the court on the first day of hearing of the bail application itself had directed him to serve the copies of the relevant records of the prosecution case to the counsel for the petitioner and those were furnished also. According to him, allegations raised being devoid of merits, the transfer sought, may not be ordered by this Court.

6. The object behind enactment of the SC/ST (POA) Act, 1989 is as follows :

“An Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts and the Exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.”

Chapter IV-A of the Act provides for