The court ruled that without statutory backing, a custody trial cannot be ordered, reaffirming the protection of individual rights under Article 21.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TH FRIDAY, THE 18 DAY OF AUGUST 2023 / 27TH SRAVANA, 1945 CRL.MC NO. 4359 OF 2023 CRIME NO.1311/2023 OF Parassala Police Station, Thiruvananthapuram IN SC 764/2023 OF ADDITIONAL SESSIONS COURT, NEYYATTINKARA PETITIONER/1ST ACCUSED:

GREESHMA @ SREEKUTTY AGED 22 YEARS D/O SINDHU, SREENILAYAM VEEDU, POOMBALLLIKONAM, MELPPALA DESOM, DEVIYODE VILLAGE, KANYAKUMARI DISTRICT, PIN - 695504. BY ADV SASTHAMANGALAM S. AJITHKUMAR RESPONDENT/COMPLAINANT:

1 THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH THIRUVANANTHAPURAM RURAL, STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.

*ADDL R2 SHIMON RAJ AGED ABOUT 34, S/O. JAYARAM, J.P. HOUSE, SAMUDAUAPPATTU, MURYANKARA, PARASSALA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM -695502.

*ADDL R3 PRIYA AGED ABOUT 54, W/O. JAYARAJ, J.P. HOUSE, SAMUDAUAPPATTU, MURYANKARA, PARASSALA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695502.

*ADDL R2 AND R3 ARE IMPLEADED AS PER ORDER DATED 20.6.2023 IN CRL.M.A NO.2/2023 IN CRL. M.C 4359/2023.

BY ADVS GEORGE MATHEW M.D.SASIKUMARAN SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V.

STEPHY K REGI MEDHA B.S.

ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)

ADDL. STATE PUBLIC PROSECUTOR(AG-28)

SMT.NEEMA T.V, SR. PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

18.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

The petitioner herein is the 1st accused in S.C No.764 of 2023 on the files of the Additional Sessions Judge, Neyyattinkara. In the aforesaid case, she is facing prosecution for having committed offence punishable under Sections

302, 201, 203, 328, 364 r/w 34 of IPC.

2. The petitioner is a 22-year-old lady. The case relates to the murder of a young man by the name of Sharon Raj with whom the petitioner was allegedly having an affair. The prosecution alleges that when the petitioner got engaged with another person, she wanted to come out of her relationship with the deceased. The prosecution allegation is that the petitioner administered poison to the deceased and murdered him.

3. The records disclose that the petitioner was arrested on 31.10.2022 and she is undergoing pre-trial incarceration after her application for bail was dismissed by the court.

4. While the case was pending, separate applications were filed by the Special Public Prosecutor appointed to conduct the case and also by the parents of the victim with a prayer to order a custody trial. Though no such provision is provided in the court, the learned Sessions Judge entertained the application. By the impugned common order, both applications were allowed, and permission was granted for the custody trial of the 1st accused. The above order is under challenge.

5. Sri. Sasthamangalam Ajithkumar, the learned counsel appearing for the petitioner, submitted that the order passed by the learned Sessions Judge cannot be sustained under law. It is submitted that the power to order custody trial is not provided by any of the provisions in the Code relating to trial of Sessions Cases. According to the learned counsel, the petitioner is a young lady and a first time offender and even the prosecution had no case that the petitioner had the wherewithal to influence witnesses or tamper with the evidence. It is one thing to deny bail to the accused, but it is yet another thing to order custody trial when there is no provision for the same.

6. The learned Senior Public Prosecutor submits that though he does not dispute that there is no provision for filing an application for a custody trial, the fact remains that the allegations against the petitioner are extremely grave. He would point out that the learned Sessions Judge has left open the right of the petitioner herein to prefer Bail Applications before said Court, and in that view of the matter, practically, the petitioner cannot have any grievance. It is further submitted that the intention of the learned Sessions Jud