Shuhaib murder case: Defence levels extraordinary allegations against trial judge but loses transfer battle

Kannur: The attempt by the first accused in the politically sensitive Mattannur Shuhaib murder case to shift the trial out of the court of Additional Sessions Judge Ruby K Jose has failed, with the Thalassery Sessions Court rejecting the petition that levelled a series of extraordinary allegations against the trial judge.

The transfer petition, filed by accused Akash M V alias Akash Thillankeri, Rajil Raj and Jithin A, portrayed a courtroom marked by repeated confrontations between the trial judge and the defence. The accused contended that the judge's conduct had given rise to a reasonable apprehension that they would not receive a fair trial in her court.

Sessions Judge-in-charge Denny C J dismissed the petition on June 6 after examining each allegation and concluding that none justified transferring the case. He, however, had a word of caution for the trial judge: "Emotional outbursts are to be avoided at any cost. No remarks, except those required for disposing of an issue or a point arising in a lis (lawsuit), should be made by courts."

The three accused are among the 17 CPM workers facing trial in the 2018 murder of Youth Congress worker S P Shuhaib (29).

The transfer petition was the second such attempt by the accused. An earlier plea had been dismissed on June 1 because it was not supported by an affidavit. Judge Denny held that the dismissal was purely technical and did not prevent the court from considering a fresh petition supported by an affidavit. The court therefore examined the allegations on their merits before ultimately rejecting them on Saturday, June 6.

The affidavit filed by the third accused, Jithin, traced the dispute back to the first day of trial on May 18, and raised three issues.

According to the defence, the first eyewitness, Riyas, was not subjected to a conventional examination-in-chief. Instead, he allegedly narrated the prosecution's case and identified the accused, their clothes and the weapons used in the crime. Defence counsel Adv P V Hari wanted the first witness's testimony expunged. However, the petition claimed that although the judge indicated she would rule on the objection after lunch, no ruling was delivered, and the defence was compelled to proceed with cross-examination.

The defence further alleged that throughout the cross-examination, the judge repeatedly intervened, advised witnesses and at times enabled them to alter or clarify answers that had already been given.

The defence said the frequent intervention by the judge killed the "surprise element" in cross-examination. Adv Hari said that while he was building a contradiction in the witness's narration of a long sequence of events, the judge said she could not follow the sequence, forcing him to break down the sequence, leading to the dilution of the contradiction.

The affidavit accused the judge of "unnecessary and unwarranted interference" and claimed that the atmosphere in court had become hostile.

The allegations escalated after the defence filed an application challenging the manner in which the first witness's evidence had been recorded. According to the petition, the application triggered an angry response from the trial judge. The defence alleged that disparaging remarks were made against a co-counsel, and that the judge stated she was there to ensure justice for the victim's family, and that she would not allow the accused to derail the proceedings.

When Judge Ruby Jose told the accused that their counsel was trying to sabotage their case, Adv Hari pointed out that he had almost 50 years' standing at the Bar. "But the judge retorted that ‘I don't care if you have 50 or 100 years standing and so on’," said the defence affidavit.

The defence also cited the dramatic cancellation of bail for all 17 accused on May 25 as evidence of bias.

On that day, Judge Ruby Jose remanded all 17 accused to custody after the defence repeatedly refused to cross-examine eyewitnesses. Less than 24 hours later, the Kerala High Court stayed the order and directed their release. The High Court observed that the remand order appeared, prima facie, to be illegal.

On the allegation of judicial interference during cross-examination, District Judge Denny held that a presiding judge is empowered under Section 165 of the Evidence Act to ask questions to clarify ambiguous or misleading evidence.

He also rejected the argument that interventions during cross-examination demonstrated prejudice.

The court was equally unpersuaded by the argument based on the cancellation of bail.

Denny acknowledged that the High Court's observation that the cancellation of the bail appeared ex facie illegal. However, he added that the said circumstance cannot be taken as grounds for the judge concerned being biased.

Judge Denny was more restrained when dealing with the allegations about comments allegedly made in court. Noting that he had not called for remarks from Judge Ruby Jose on those allegations, he declined to make findings on whether the statements had in fact been made. At the same time, he made an observation that is likely to draw attention. "Courts and learned judges presiding over the courts should be free from prejudices and dereliction. Emotional outbursts are to be avoided at any cost," he wrote. The district judge added that he would say no more on the issue.

Having considered all the allegations, Denny concluded that they did not create a reasonable apprehension that the accused would be denied a fair trial if the case remained before Judge Ruby Jose.