George Kurian @ Pappan vs State Of Kerala

C. Jayachandran, J

The sole accused in SC.No.526/2022 on the files of the Additional Sessions Court No.-II, (Special) Kottayam is the petitioner in the instant Criminal M.C. He is aggrieved by the fact that the trial in the above SC had already commenced on 24.04.2023, without affording him adequate opportunity to instruct his lawyer, as also, without supplying the FSL report, six in number (Annexure A7 series) on time.

Heard Sri.P Vijayabhanu, learned Senior Counsel for the petitioner, duly instructed by Sri..C.S.Manu and Smt.C.Seena, learned Public Prosecutor. Perused the records.

The occurrence was on 07.03.2023. The petitioner/accused is still in judicial custody. Annexure A2 is an application for issuance of stop memo to the witnesses, since the accused did not get adequate time to instruct Sri.B.Raman Pillai, learned Senior Counsel engaged on his behalf. It is noticed that while dismissing the Bail Application of the petitioner/accused, as the case has already been scheduled for trial, there was a direction by this Court to proceed with the trial as scheduled. Annexure A5 is an application seeking copies of Annexure A7 series, which was not listed in the documents produced in terms of Rule 19(4) of the Criminal Rules of Practice. Both the above applications, Annexures A2 and A5, were dismissed by the learned Sessions Judge vide Annexure A4 and A6 orders respectively, of which the former is dated 19.04.2023 and the later dated 24.04.2023. In Annexure A4, the learned Judge has stated the matter was scheduled for trial and as early as on 20.02.2022 and there was enough time for the accused to engage the lawyer of his choice. It is also found that one of the crucial witnesses had expired and the father of the accused, another important witness, is aged and ailing, who is required to be examined at the earliest. Another reason found by the learned Sessions Judge is that several crucial witnesses are close relatives of the accused and therefore the apprehension of the Special Public Prosecutor that there is every chance of the accused winning over the witnesses also cannot be discounted.

Having heard the learned Counsel appearing on both sides and having perused the order impugned, this Court finds nothing wrong in the reasoning made by the learned Sessions Judge, as already taken note of above. However, it remains a fact that Sri. B Raman Pillai, the learned Senior Counsel was engaged on behalf of the accused only on 17.04.2023. There are altogether 138 witnesses and 96 documents on the side of the prosecution. Needless to say that the offence alleged is quite serious, namely the one under Section 302, where a double murder is alleged. This Court also notices that the ballistic report is quite relevant and significant in the given facts, which is given to the accused only on 24.04.2023, namely the date on which the trial commenced. The finding of the learned Sessions Judge in Annexure A6 order that the same was supplied to the accused along with other documents cannot be correct, in view of the contentions raised in Ground No.12 of the Crl.M.C., wherein, it is pointed out that the final report was filed only on 02.06.2022 and only those documents which were specified in the final report alone were supplied to the petitioner/accused. The FSL report was filed much later and therefore the same could not have been supplied to the accused along with other documents. This Court also notice that four witnesses have already been examined.

This application was seriously opposed by the learned Public Prosecutor by pointing out that adjourning the trial would leave room for the witnesses being threatened, intimidated or won over by the petitioner/accused, besides occasioning the non-availability of crucial witnesses. It was also pointed out that one of the crucial witness expired before the commencement of the trial and another witness, who is the father of the accused, is quite aged and ailing. It was further pointed out that this Court directed the trial to proceed in accordance with the schedule, while dismissing the bail application of the accused. Finally, learned Public Prosecutor pointed out that the instant case is one which shooked the conscience of the public at large, wherefore, immediate continuance of the trial is a sine qua non. Learned Public Prosecutor also pointed out that the matter having been scheduled two months earlier, the present grievance of the petitioner is not bonafide.

Taking into account the overall circumstances, as also, the objections of the learned Public Prosecutor, this Court is of the view that the ends of justice would be amply served, if a period of 20 days is granted to the petitioner/accused for an effective consultation with his lawyer and through whom, to the Senior Counsel engaged for defending him. This Court specifically notes that a copy of the FSL report was supplied to the petitioner only on 24.04.2023, the date on which the trial commenced, a factor which may prejudice the interest of the accused, unless time is granted.

In the circumstances, this Court directs the learned Sessions Judge to reschedule the matter on and from 22.05.2023, after issuing stop memo to the witnesses who are already summoned as per the schedule. Needless to say that the learned Sessions Judge will be at liberty to prioritize the vulnerable witnesses to be examined first, in case the prosecution makes such a demand. While affording relief to the petitioner even after commencement of the trial, this Court expects the petitioner to co-operate fully with the trial to be commenced on 22.05.2023. With these observations, this Crl.M.C. would stand disposed of.

The Registrar District Judiciary shall communicate the gist of this order to the Second Additional Sessions Court (Special) Kottayam forthwith, since the Sessions Case stands posted for trial tomorrow.