IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 Tr.P(Crl.).No. 20 of 2011() --------------------------- SC.267/2000 of ADDL. DISTRICT & SESSIONS COURT (SPL.COURT), KOTTAYAM .................... PETITIONER(S): -------------------------- P.U.MUHAMMED BASHEER,AGED 64 YEARS, S/O.LATE P.B.UMMER,KULATHUKADU HOUSE, PIPELINE ROAD, THAIKKATTUKARA,ALUVA. PRESENTLY RESIDING AT 50/762 C,YAZEEM,KOSSERY LANE, PONAKKARA ROAD,EDAPPALLY PO,KOCHI-24. BY ADVS. SRI.VIJU THOMAS, SMT.M.MEENA JOHN. RESPONDENT(S): ------------------------------ STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,KOCHI ,PIN 682 031. BY SPL.PROSECUTOR SRI. C.P. UDAYABHANU BY SPL.GOVERNMENT PLEADER SRI. C.K.SURESH THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Tr.P(Crl.) No.20 of 2011 ==================================== Dated this the 29th day of March, 2011 O R D E R Petitioner is accused in S.C. No.267 of 2000 of the court of learned Additional District and Sessions Judge (Special Court), Kottayam for offences punishable under Sections 362, 368, 372, 373, 376(2)(a)(i) and 377 read with Section 34 of the Indian Penal Code and Section 5(1) of the Immoral Traffic (Prevention) Act. Petitioner states that case is scheduled for trial from 18.04.2011 onwards. But he has some apprehension in the present Presiding Officer trying the case since petitioner is related to the Presiding Officer and there is some enmity between the Presiding Officer and petitioner following a dispute regarding division of family property. Learned counsel requested that in the circumstances the case may be transferred to any other court in the District. Learned counsel also submitted that it is not as if petitioner stands in the way of trial of the case but the request is only to transfer the case to any other court in the District and he has no objection in proceeding with trail in the transferee court. I have heard learned Public Prosecutor and the Special Public Prosecutor Tr.P(Crl.) No.20 of 2011 -: 2 :- appointed in the case. According to them there is no circumstance justifying a transfer of the case as revealed by the facts and circumstances of the case. They asserted that attempt of petitioner is only to protract trial even after the Supreme court in SLP(Crl.) No.7294 of 2010 by order dated 13.09.2010 directed the trial court to proceed with the trial as expeditiously as possible. 2. This case is one in the batch of cases called “Vithura Sex Racket Case”. I am told that case concerning each accused has been separately framed, charged and scheduled to be tried. Petitioner is accused in S.C. No.267 of 2000. The Government have constituted the court of learned Additional District & Sessions Judge (where the case is now pending) as a Special Court for trial of Vithura Sex Racket Cases. Though a petition for transfer was preferred before the court of learned Sessions Judge that was returned for the reason that Government have constituted a Special Court for trial of the case. 3. On the complaint of petitioner, I called for a report from the learned Additional Sessions Judge (Special Court), Kottayam who is presiding over the Special Court through the Registrar (Judicial) of this Court. The Registrar (Judicial) has given Tr.P(Crl.) No.20 of 2011 -: 3 :- a report dated March 24, 2011 where it is stated that averments in the transfer petition was read over to the Judge concerned who stated that there may be some distant relationship between his wife and the petitioner. But neither himself nor his wife had any contact or connection with petitioner or any of his relatives in the present or past and according to the knowledge of the learned Judge and his wife there was no case involving his wife's close relations and family of petitioner. Learned Judge also states that he has no embarrassment in conducting trial of the case and that he has scheduled the case for trial in the months of April and May, 2011. The Registrar (Judicial) has also pointed out that the learned Additional Sessions Judge, is due for transfer (in the course of general transfer) and is expected to take charge in his transferred post on 23.05.2011 (trial of the case is to commence on 18.04.2011). According to the Special Prosecutor there are around thirty witnesses for the prosecution to be examined in the case. 4. True that petitioner has raised an apprehension that he may not get a fair trial for the reason I have stated above. I have also stated the stand of learned Additional Sessions Judge. Learned Additional Sessions Judge stated that to his knowledge Tr.P(Crl.) No.20 of 2011 -: 4 :- there was no case between his wife and her close relatives and the family of petitioner regarding division of property. If the accused has a genuine apprehension regarding fair trial, that has to be looked into. But it is not as if whenever some apprehension is raised the court has to order transfer of the case in which case, I think there could be no trial of any case. It is possible for somebody to raise some apprehension regarding fair trial. The court cannot go after fanciful imaginations and order transfer of the case. Learned Additional Sessions Judge has stated that he has no embarrassment in conducting trial of the case. It would appear from the views of the learned Additional Sessions Judge that himself or wife has no contact at all with petitioner. There is no reason to think that learned Additional Sessions Judge will not conduct trial in the proper manner and dispose of the case on merits. I must also bear in mind direction of the Supreme Court for expeditious trial of the cases. A further fact to be noted is that learned Additional Sessions Judge took charge on 27.12.2010 as Special Judge, the case was scheduled for trial in January, 2011 but it was adjourned on account of some inconvenience of the prosecution and then the case was scheduled for trial on 18.04.2011. According to the learned counsel he got a cause of Tr.P(Crl.) No.20 of 2011 -: 5 :- action only when case was scheduled for trial on 18.04.2011. I am afraid, I cannot accept that contention. When the learned Judge assumed charge in the Special Court on 27.12.2010 or when the case was scheduled for trial in January, 2011 petitioner had no apprehension. When the case is again scheduled for trial on 18.04.2011 he comes up with a plea of apprehension for fair trial. The case is posted for trial continuously from 18.04.2011 onwards in the Special Court. Transfer of the case to another court is not only warranted by circumstances but would upset the schedule fixed by the Special Court and further prolong trial of a case which by now itself is around eleven years old. Trial cannot further prolong because some unsustainable and baseless apprehension is raised. Petition fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv