Actor Sexual Assault Case : Kerala HC Allows Survivor's Prayer For Trial By Woman Judge [Read Order]

The High Court of Kerala yesterday allowed the prayer of the Malayalam actor, who was allegedly abducted and subjected to sexual assault in February 2017, for trial of her case in a court presided by a woman judge.

Justice Raja Vijaya Raghavan stated in yesterday's judgment that the transfer of the case will "safeguard the interest of the victim" and will be "expedient in the interest of justice".

Prominent Malayalam actor Dileep is accused as a conspirator in the case.

The survivor had approached the High Court after the Sessions Court rejected her prayer under Section 327(2) of the Code of Criminal Procedure for trial to be conducted by a woman judge. The Sessions Court held that it was powerless to transfer the case, though the other prayers for holding in camera trial and banning media publication of proceedings were allowed. 

In the petition filed under Article 227 of the Constitution of India, the survivor pointed out that the mandate of Sections 26(a) and Section 327(2) CrPC was that trial in sexual crimes should be conducted by a woman judge as far as practicable.  Sexual violence has a dehumanizing effect on the survivor and trial before a woman judge is necessary to safeguard her privacy and self-esteem.

The State Government supported the petition.

Dileep, who intervened in the petition, opposed the plea and submitted that is no need to grant any special consideration to the petitioner. If the trial is shifted it would cause grave inconvenience to the accused, the witnesses and the lawyers who have been engaged, he submitted. The main accused Pulsar Suni, who allegedly carried out the abduction of the actor and subjected her to sexual violence did not oppose the transfer of case so long as it was not shifted out of Ernakulam District.

The Registry informed the Court that there was only one woman judge in Ernakulam District, who was a judge of Special CBI court. There are two woman judges in adjacent Thrissur District; however one of them is an MACT judge, who cannot try sessions case,and the other is a principal sessions judge who is overloaded with work, reported the Registry.

In this backdrop, the Court felt it appropriate to transfer the case to the CBI judge in Ernakulam district. The Court noted that the Chief Justice of India had informed the High Court that was desirable that CBI Courts exclusively deal with cases registered under the Prevention of Corruption Act, 1988 and other cases investigated by the CBI.

However, having regard to the fact that there were other two CBI judges in the district, and that the pendency before the woman judge was less, the Court felt that transfer of this case will not affect the trial of CBI cases as scheduled.

The Kerala police had initially filed charge sheet against Pulsur Suni and few others in the crime. Later, the police stated that Dileep was the mastermind behind the crime and filed supplementary chargesheet arraying him as a conspirator. Dileep was arrested in July 2017 and had to spent over 80 days in custody, before he was released on bail by the High Court.

Dileep had moved a petition in the trial court seeking copy of the memory card which contains the visuals of the alleged sexual crimes committed against the actor. However, the sessions court disallowed the prayer. The High Court dismissed his revision petition against the rejection, observing :

"The crux of the prosecution allegation is that, offence was committed for the purpose of recording it on a medium. Memory card is the medium on which it was recorded. Hence, memory card seized by the police itself is the product of the crime. It is not the contents of the memory card that is proposed to be established by the production of the memory card", observed Justice Sunil Thomas in the High Court judgment.

Memory card itself is the end product of the crime. It is hence a material object and not a documentary evidence. Hence, it stands out of the ambit of section 207 Cr.P.C".

Dileep has assailed this order in the Supreme Court, where it is pending. The matter is likely to be heard in the second week of March.

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