Bombay HC pulls up POCSO judge, directs case to be transferred

After hearing the appeal filed by the accused, Jayesh Katira, to transfer the case from the special Prevention of Children from Sexual Offences (POCSO) court (number 35) to another court in the interest of justice, Justice A M Badar held that “the apprehension of bias in the mind of the applicant is reasonable, genuine and justifiable”.

Counsel Samir Vaidya and Umesh Mohite, appearing for the accused, told the court that the accused had earlier approached the High Court challenging the charges framed against him by the special court by filing a writ petition, following which the court gave an interim order on July 11 2016 directing the trial court, that till the next date of hearing, the special judge of the POCSO court (room number 35) shall adjourn the hearing of the case. The judge, however, did not act fair, said the court, adding that a copy of the interim order passed by the HC was also provided to the special judge, but despite that the judge went on with the proceedings and even recorded that the conduct of the accused and his advocate is not appropriate as they are not available for hearing on the adjournment application.

The counsel pointed at that this hearing was not required as the HC has clearly ordered that until the next date of hearing of the writ petition, the hearing shall be adjourned by the special court.

The appeal also stated that the trial judge even went on to impose a cost of Rs 3,000 on the accused for adjourning the case and has made the cost payable to the victim without considering the pendancy of the writ petition. It also went on to say that without ascertaining whether the interim order was in operation or making necessary inquiries, it was not justified on part of the trial judge to impose a cost of adjournment or carry on with the proceedings.

The court observed that the trial judge could have directed the accused to file an affidavit regarding the interim order passed by the court to ascertain whether the order was still in operation, instead of recording conduct of the accused and his advocate.

“Such observations of the trial judge gives an impression in the minds of the accused that the trial judge is prejudiced against him only because he has filed some proceedings before the High Court challenging the order passed by the trial court,” held the court. The order further stated that the accused is justified in having reasonable apprehension of bias, that the trial judge is prejudiced against him and he may not get a fair trial in respect of serious offences that he is facing.