The Kerala High Court has observed in the order dismissing the applications filed by the prosecution and the victim seeking to change the judge holding trial in the sensational actor sexual assault case of 2017.
Justice VG Arun while addressing contention, the court briefly explained the concept of ‘in camera’ trial observed that, On the issue of “in camera” proceedings, it would be profitable to to know the genesis of the term. The term “in camera” is of Latin origin and means in private”. As per the Oxford English Reference Dictionary, the term ‘in camera’ is defined as ‘in a judge’s private room’. In the Major Law Lexicon, the term is defined as ‘in chambers; inprivate; in the judge’s private room; not in open court’. This gives a clear indication of the extent of confidentiality expected, when the trial is held ‘in camera’. Therefore, by the mere fact that the trial is held inside aa closed court hall, it does not become ‘in camera’ trial, unless the purpose of providing a comfortable atmosphere for the witnesses to depose freelyis maintained. These are aspects to be borne in mind while conducting trial ‘in camera’.
The court observed that since the prosecution failed to initiate appropriate and timely action to redress the grievance, the prayer for transfer on the ground of harassment of witness during cross examination cannot be entertained
The court said:
On the second contention regarding failure of the Special Judge to intervene during the cross-examination of PW1, even if this court finds that it would have been prudent and proper for the learned Judge to have intervened as and when the victim was seemingly harassed during cross-examination, that being the requirement pointed out in Gurmit Singh’s case, having failed to initiate appropriate and timely action to redress the grievance, the prayer for transfer on that ground cannot be entertained. The observations of the Apex Court in Mina Lalita Baruwa v. State of Orissa [(2013) 16 SCC 173], that courts cannot remain mute spectators during trial and should adopt a belligerent approach and should be alive and alert during trial of criminal cases, are relevant in this context.
The judge cannot be expected recuse, as long as her conscience is clear. The endeavour of every Judge should be to get rid of his personal predilections and prejudices and to decide the cases dispassionately, and not to recuse whenever his or her actions are questioned. 33. It has time and again been stated that the duty of the Prosecutor is not to seek conviction at all costs or be an avenging angel for the victim, but to ensure that justice is delivered. The Special Public Prosecutor in this case is understood to be a seasoned Prosecutor, not easily flummoxed by the number of defence lawyers or the charged atmosphere in the court hall. 34. As far as a defence lawyer is concerned, he is in theory an officer of the court and irrespective of his engagement, has a higher duty to the court, in assisting the court in finding out the truth and placing before the court the point of view of his client honestly and fairly. The advocate’s duty to the court transcends the limited and narrow loyalty to the client who has engaged him. I have no doubt that the defence lawyers in this case are well aware of their role. 35.It goes without saying that unless the court and the prosecutor work in sync, it will result in either the guilty escaping from the clutches oflaw or the innocent being punished. 36. I am confident that in the endeavour to reach the truth and render justice, the court, the Special Public Prosecutor and the defence lawyers will work in tandem, as is expected of them.”
Court further observed while dismissing the petition.