Court emphasizes judicial discretion in evidence recording, underscores reasonableness in transfer petitions, and urges fair, expeditious trial in 2018 violent crime case
In a significant judgment delivered on September 29, 2026, the Kerala High Court presided over by Justice C.S. Dias dismissed the transfer petition and criminal miscellaneous case filed by accused persons in a high-profile criminal trial involving alleged conspiracy, unlawful assembly, and a fatal attack in Kannur district. The accused had sought to transfer the case from the Additional Sessions Judge-III, Thalassery, and to record the evidence of a key prosecution witness in the question-and-answer form instead of narrative form, contending that the witness appeared tutored.
Background and Case Details:
The criminal trial pertains to Crime No. 202 of 2018 registered by Mattannur Police Station. The eighteen accused faced charges under several provisions including Sections 447, 341, 342, 324, 326, 307, 302, 120(B), 109, and 201 of the Indian Penal Code, along with Arms Act and Explosive Substances Act violations. The prosecution case alleges that the accused conspired and attacked a victim named Shuhaib with deadly weapons and explosives, resulting in his death and grievous injuries to others.
The accused challenged the Sessions Judge's refusal to record the evidence of PW2-the prosecution witness-in the question-and-answer format, arguing that the witness was parroting a tutored version, thereby prejudicing the accused. They also alleged bias and unfair trial proceedings, pointing to the cancellation of their bail bonds by the Sessions Judge after the filing of the transfer petition. The accused raised concerns about the judge's conduct, including alleged motivational remarks to witnesses and strained relations with their counsel.
Key Legal Issues and Court's Findings:
1. Recording of Evidence: Narrative vs. Question-Answer Format
The Court examined Section 311(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which mandates that evidence in sessions trials be ordinarily recorded in narrative form, while leaving discretion to the presiding judge to record evidence in question-and-answer form if deemed necessary.
Rejecting the accused's contention, the Court held that mere allegation of a "tutored" witness does not create a right to insist on question-answer recording. The trial judge's discretion in this regard is judicial and must be exercised fairly, but the standard safeguards of cross-examination remain the appropriate mechanism to test witness credibility. The Court relied on the Supreme Court's precedent in Makhan Lal Bangal v. Manas Bhunia to affirm that narrative recording is the statutory norm for such trials and the trial judge's refusal did not constitute legal infirmity.
2. Maintainability of Transfer Petition
The accused's transfer petition was challenged on the ground that the Sessions Judge had already rejected a transfer application. Citing the proviso to Section 447(2) BNSS, the Court clarified that an application to the High Court for transfer within the same sessions division is maintainable only after the Sessions Judge rejects the transfer application; no separate challenge to the Sessions Judge's order is necessary.
3. Grounds for Transfer of Criminal Case
The Court emphasized the well-settled legal principle that an erroneous order alone does not justify transfer of a case. The test is whether there is a reasonable, genuine, and justifiable apprehension of unfair trial. The Court found that the accused's grievances, including refusal to record evidence in question-answer form and bail cancellation, had been addressed-the bail cancellation order was stayed and later set aside by this Court.
The Court noted that the accused had failed to demonstrate any valid ground for transfer and that the transfer petition lacked merit.
4. Role and Conduct of the Trial Judge
While upholding the trial judge's discretion, the Court observed the delicate balance a judge must maintain between active judicial control and impartiality. Although the judge's assurance and motivational remarks to witnesses were intended to protect them from intimidation, the Court cautioned that such conduct should avoid creating an impression of bias against the accused.
The Court reminded that a judge must "hear courteously, answer wisely, consider soberly and decide impartially," quoting the Greek philosopher Socrates, and directed the Sessions Judge to afford full and effective opportunity to both prosecution and defence, including suo motu reopening evidence if necessary.
5. Objection to Public Prosecutor's Appearance
The accused objected to the State Public Prosecutor's appearance on the ground that he had earlier represented the victim. The Court rejected this objection, holding there is no legal bar on such subsequent appearances unless there is material showing conflict of interest or reasonable apprehension of bias. The Court relied on Balakrishna Pillai v. State of Kerala to confirm this position.
Conclusion and Directions:
The Kerala High Court dismissed both the transfer petition and the application to record evidence in question-answer form, upholding the trial court's discretion and emphasizing the importance of maintaining fair, impartial, and expeditious trial proceedings. The Court directed the Sessions Judge to ensure the accused receive full opportunity to cross-examine witnesses and to avoid unnecessary delays, given the trial has been pending since 2018 with over 140 witnesses.
The judgment reinforces the principle that judicial discretion in recording evidence is to be respected unless exercised arbitrarily, and that transfer of criminal cases requires a strong, reasonable apprehension of unfair trial beyond mere dissatisfaction or error.
Bottom Line:
Criminal trial - Recording of evidence in Sessions trial - Under Section 311(2) BNSS, evidence is ordinarily to be recorded in narrative form and recording in question-answer form is discretionary with Presiding Judge - Mere allegation that witness is tutored does not confer right on accused to insist on question-answer form - Transfer of criminal case cannot be ordered merely because erroneous orders were passed; apprehension of unfair trial must be reasonable, genuine and justifiable.
Statutory provision(s): Sections 311, 447 of Bharatiya Nagarik Suraksha Sanhita, 2023; Sections 142, 146, 148 of Bharatiya Sakshya Adhiniyam, 2023; Sections 447, 311(2) BNSS; Indian Penal Code Sections 447, 341, 342, 324, 326, 307, 302, 120(B), 109, 201; Arms Act Section 4 read with Section 25(1B)(b); Explosive Substances Act Sections 3 and 5.
Akash M.V. v. State of Kerala, (Kerala) : Law Finder Doc Id # 2990526
