Sajil vs National Investigating Agency, Kochi Unit

Vinod Chandran, J

1.The above Original Petition filed under Article 227 of the Constitution challenge the order passed by the Special Court for trial of NIA Cases,

Ernakulam refusing to adjourn the trial on the application made by the petitioners herein.

We heard Sri.Sunny Mathew, learned Counsel for the petitioners and Sri.Arjun Ambalapatta, Standing Counsel for the NIA.

Learned Counsel for the petitioners would point out that Exhibit P1 is a Certificate indicating that the 1st petitioner had an Aortic Valve

Replacement surgery and it is a co-morbidity, which would put the 1st petitioner in peril if he is exposed to the public for reason of the pandemic

situation. As far as the 2nd petitioner is concerned, reliance is placed on Exhibit P2 Covid-19 Test Report, which found the 2nd petitioner's wife as

Covid positive. The 2nd petitioner is also residing in a 'D' category area for reason of the Test Positivity Rate (TPR) of Covid 19 in the Panchayat

being above 18%. There is Triple Lock Down imposed restricting the movement of the people inside the specific ward. Learned Counsel would point

out that there is no reason why the trial should be expedited in the pandemic situation. There are numerous accused and along with the lawyers the

Court room itself would be crowded; not to speak of the witnesses. The trial would be against Covid protocol as declared by the State Government

and the Central Government. The learned Counsel would seek for adjourning the trial and would also assail the Video Conferencing insofar as the

identity being not ascertainable.

The learned Standing Counsel would point out from the order, the preparations made by the Court and the NIA to proceed with the trial following

social distancing norms. It is pointed out that the case was originally registered in the year 2011 and later final report was filed on 18.01.2013. Once

trial was conducted and 13 accused were convicted and sentenced under various provisions of different enactments as per judgment dated

30.04.2015. 18 out of the 31 accused were acquitted and the present trial is proceeded with against the 11 accused arrayed who were absconding,

whose trial was split up and later proceeded with as S.C.No.1/2015. Only two of the accused are now in custody and others are on bail, who can

appear through Video Conferencing. There is no question of identity arising, which, if at all arise, would be appropriately ascertained and dealt with by

the NIA. The learned Standing Counsel seeks rejection of the Original Petition.

We see, that the Court has made elaborate arrangements to carry on the trial in the Covid situation. We feel it appropriate to extract paragraphs 8,

9 and 10 from the order under challenge, which would set at rest the apprehension of anybody regarding the trial creating a cluster for the spread of

Covid 19. We extract the aforesaid paragraphs herein below:

“8. As rightly pointed out by the learned Public Prosecutor, a situation has been reached wherein we have to move forward living along with Covid, Right now the

restrictions imposed on account of the lockdown has eased out to a good extend. Restrictions were considerably relaxed permitting free movement of Advocates,

Advocate clerks and litigants. The functioning of the courts are gaining momentum. Hon'ble High Court of Kerala vide its OM dated 18.06.2021 had issued guidelines

for the functioning of courts in the District Judiciary with effect from 21.06.2021. The Hon'ble High Court had given green signal to resume the court work by listing

cases for trial/hearing. At the discretion of the Presiding Officer sitting can be on physical mode ensuring strict compliance of the Covid-19 protocol including

physical distancing norms. If required facilities are available, examination of witnesses can be done through video conferencing following the guidelines already

issued and the relevant rules. Fortunately, this court is having well equipped video conference facility and is being effectively utilised by this court during this

pandemic situation. Many number of overseas witnesses were examined utilising the video conference facility without any complaints from any corner.

Since no other cases were scheduled for trial during this period, there will be sufficient space available both inside the court hall as well as in the veranda, to

accommodate the accused, defence team, prosecution team even if all of them choose to physically appear before the court. Here 11 accused are facing trial. Two of

them are in judicial custody. They can participate by sitting in the video conference room of the concerned jail. Among the 11 accused only the second accused is

alleged to have directly participated in the homicidal attack. Others are all said to be conspirators. In the month of July there will be trial only on three days i.e.

12.07.21, 13.07.21 and 16.07.21. On these dates two eye witnesses are scheduled to be examined. In the month of August there will be trial only for five days i.e.

05.08.21, 06.08.21, 12.08.21, 13.08.21 and 24.08.21. On these dates seven witnesses (eye witnesses and persons who reached the place of occurrence immediately after

the incident) are scheduled to be examined. Be it so, physical presence of the accused except A2, is not necessary for conducting the trial in the month of July and

August. If these accused insist for physical participation, it is possible to provide seating arrangements in the court hall observing social distancing rules. Further, a

spare room is readily available in the court premises and the prosecution agency is ready to provide a monitor in the said room, and from there some of the accused

can participate in the trial. Another option available is that these accused can also join the trial online, by sitting in their house itself, by logging into the link to be

provided from the court.

As far as the defence counsels are concerned there are only three Advocates appearing in this case. Even if they took a junior together with them their number

will not exceed six. The Prosecutor together with a member from the investigating team will not go beyond two. We can restrict the number of court staff inside the

court room to minimum two at a time. Sufficient space is available in the court hall to arrange seating to all these persons strictly adhering the social distancing norms.

Absolutely there will be no over crowding. Continuous trials are going on in the other two courts functioning in the same premises strictly abiding Covid-19 protocol.

That being so, prevailing Covid-19 situation, by itself is not a ground for postponement of the trial scheduled in advance, that too with the consent of both sides.

Coming to the personal difficulties pointed out by the petitioner/accused, since effective and alternative options are readily available for their participation in the trial,

I find no special reason to postpone the scheduled trial. For all these reasons, both petitions deserves rejectionâ€​.

We cannot but appreciate the elaborate arrangements made by the Court. The trial is also scheduled on different days without any other case being

posted on the said date. The Court has made sufficient arrangements to ensure that there is no cluster created within the Court. We see that now

there are only two persons in judicial custody and others are on bail. The persons who are in custody had filed applications for bail specifically alleging

that the trial is unnecessarily delayed. Another Division Bench had considered the bail applications by order in Crl.A.No.644 of 2020 and

Crl.A.NO.163 of 2021, both dated 31.03.2021, rejecting both the appeals. Their apprehension was that due to the delayed trial they are unnecessarily

incarcerated.

We have to notice that the offence complained of was in the year 2011 and we are a decade from then. As is rightly observed by the trial Court,

the human community has been exploring ways and means to get on with life, in the midst of the pandemic situation. The digital platform offers a

viable proposition to avoid physical contact and arrest the spread of the pandemic. There would definitely be initial glitches, which would crop up in

any new system introduced which has to be got over by constant use and adapting to whatever change is required. We once again appreciate the

measures put in by the trial Court to ensure that there is no Covid clusters created only because of the trial scheduled of a case, the offence charged

in which was committed a decade back.

As far as the specific difficulties pointed out by the two petitioners, we again stress upon the use of the digital platform for the purpose of continuing

with the trial and participating in it effectively. The certificate produced at Exhibit P1 is for the purpose of applying for financial assistance from the

Government and not to indicate that the 1st petitioner is suffering from any difficulties because of the Valve Replacement surgery carried out four

years back. As far as Exhibit P2 concerning the wife of the 2nd petitioner, we do not see any test having been conducted after 7 days or the result

produced. Though we are yet to find proper treatment protocol for Covid-19 which has further aggravated the pandemic situation; it cannot be a

reason for postponing and delaying every human activity more so in the judicial arena when we are already plagued with laws delays.

We, hence, for all the above reasons specifically taking note of the arrangements made by the NIA Court for smooth trial of the case, dismiss the

Original Petition in limine..