Kerala Actor Assault Case : Supreme Court Dismisses Survivor's Plea To Transfer Trial, Says Petition Alleging Bias Can't Be Allowed

The Supreme Court on Friday dismissed the petition filed by the survivor in the Kerala actor sexual assault case seeking to transfer the trial to another Court.

A bench comprising Justices Ajay Rastogi and CT Ravikumar refused to interfere with the Kerala High Court's order which rejected the survivor's transfer plea. The survivor approached the Court alleging bias on the part of the presiding judge of the trial court.

"We cannot allow all such petitions alleging bias, judges will not be able to discharge their duties without fear and favour then", the bench orally observed.

The bench observed it will lead a "bad precedent" if the transfer request is allowed. The bench added that in such matters, the High Court has to take the final call.

The bench asked Senior Advocate R Basant, who appeared for the petitioner, if there were any concrete instances showing bias. Basant submitted that improper questions were allowed to be put to the survivor during cross-examination. The senior lawyer also referred to refusal of the judge to allow the forensic examination regarding the change in the hash-value of the memory card(which allegedly contains the visuals of the crime). He pointed out that two Special Public Prosecutors have withdrawn from the case citing hostile atmosphere. Basant said that his concern is only to ensure a fair trial

However, the bench observed that such instances cannot be treated as showing bias. The bench also expressed concerns regarding the demoralising effect on the subordinate courts, if such requests are entertained. The bench asked if there is any instance to show that the judge is not discharging the duties properly.

Basant submitted that from accused actor Dileep's phone, certain records of a conversation with a lawyer have been obtained, which refer to a case relating to the husband of the trial judge. 

However, the bench asked how it can be related to the conduct of the presiding judge. Are there any direct or indirect instances of the judge contacting the accused, the bench asked.

"The kind of environment we have now, no subordinate judge wants to hear criminal cases. Any observation they make is used against them", Justice Rastogi observed.

Senior Advocate Mukul Rohatgi, appearing for actor Dileep (who is facing trial in the case as the alleged chief conspirator), submitted that the attempt of the survivor was to delay the trial. Rohatgi urged the bench to impose heavy costs on the petition. Dileep has filed a separate petition in the Supreme Court seeking expeditious disposal of the case within a time limit. The Supreme Court has directed the trial to be completed preferably by January 30, 2023.

The special leave petition was filed against the September 22 order of a single bench of the High Court which dismissed the survivor's plea observing that no ground has been made out to show the personal bias of the judge. The order passed by Justice Ziyad Rahman stated, "after having examined all the relevant aspects, I am of the firm view that the petitioner's apprehensions regarding possible interference in the fair trial are not reasonable".

The High Court did not doubt the bona fides of the petitioner but observed that she may have been a victim of "wrong perceptions and aspersions created by the media" regarding the case. The High Court also criticised the media debates about the case by saying that the media was expecting the Courts to pass orders based on their prejudged declarations.

The case relates to the kidnap and the sexual attack against a female actor in the outskirts of Kochi in February 2017. 

Case Title : XXXX vs State of Kerala | SLP (Crl) 9544/2022

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