On 1st of October 2020 the Kerala HC in the case of Bishop Franco Mulakkal V. State Of Kerala comprising of a single Bench of MR. JUSTICE V.G.ARUN dismissed disgraced Catholic Bishop Franco Mulakkal's plea seeking that his trial is deferred in light of the COVID-19 pandemic.
Factual Background
The petitioner is the sole accused in a case pending on the files of the Court of the Sessions Judge, Kottayam. The case originated from a complaint that, the petitioner, the Bishop under the Latin Catholic Sabha, had committed rape and unnatural sex on the de facto complainant, a nun. The offences alleged against the petitioner are those punishable under Sections 342, 376(2) (k), 376(2)(n), 376C(a), 377, and 506(ii) of IPC. Upon committal of the case to the Sessions Court, the petitioner moved an application for discharge under Section 227 Cr.P.C, which was dismissed. Aggrieved, the petitioner preferred a Criminal Revision Petition before this Court and the revision was dismissed. Thereupon, the petitioner moved a Special Leave Petition before the Honourable Supreme Court, which got dismissed on 5.8.2020. Thereafter, the Sessions Case was listed for trial. The petition was disposed of by the trial court by adjourning the cross-examination by two weeks and posting the case, with the rider that no further request for adjournment will be entertained.
Submissions on behalf of the Appellant
The counsel for the petitioner submits that, while refusing to grant the prayer for longer adjournment, the learned Sessions Judge failed to take into consideration the ground realities. It is submitted that the Senior Counsel had been engaged by the petitioner from the initial stage of the case and therefore unless cross-examination is conducted by the very same counsel, that would cause substantial prejudice to the petitioner in his defence. It is contended that the Sessions Case being of the year 2019, the Court is showing undue haste by insisting to proceed with the trial. In any case, at least a breathing time should have been granted for making arrangements for the accommodation and other facilities of the Senior Counsel, which is the submission. The folly committed by the trial court should be corrected by deferring the trial, at least, till the end of this month, is the prayer.
Submissions on behalf of the respondent
The Special Public Prosecutor referred to the extract of the proceedings of the trial court dated 17.9.2020 and submitted that the proceedings reflect the application of mind and a well-balanced approach by the Court. It is submitted that the nature of the allegations and the personalities involved require the case to be concluded at the earliest. It is pointed out that the de facto complainant is being provided round-the-clock protection due to threats from various quarters, which is yet another reason to complete her cross-examination without delay. Finally, it is submitted that the Additional District and Sessions Court-I, Kottayam is equipped to conduct an examination of witnesses through video conferencing mode and it would be possible for the Senior Counsel to conduct cross-examination of CW1 and other witnesses through the virtual mode.
Court Analysis
As rightly observed by the learned Sessions Judge, the requirement under Section 309(1) Cr.P.C is of continuing the trial on a day-to-day basis until all the witnesses in attendance have been examined, unless the court, for reasons to be recorded, finds adjournment beyond the following day to be necessary. The Proviso to Section 309(1) mandates completion of the trial relating to offences under Section 376 within a period of two months from the date of filing of the charge sheet. Though the mandate of the proviso does not completely denude the trial court's power to grant an adjournment, it is clearly indicative of the restricted manner in which the power should be exercised. It has to be noted that, in spite of the chief-examination of CW1 being completed, the learned Sessions Judge adjourned the trial by two weeks. Therefore, the submission that the petitioner was not granted even breathing time for making arrangements is without substance. In situations like this, it is for the court to balance various factors like convenience of the counsel, the mandate of the Code, the situation in which the victim and other witnesses are placed, etc. The trial court having done such a balancing act to perfection, by adjourning the cross-examination by two weeks, I find no reason to interfere with that decision. In my considered opinion, it would be in the interest of all concerned to see that the case attains finality at the earliest. The apprehension expressed by the learned counsel for the petitioner in the wake of the rampant spread of the Covid-19 pandemic is well-founded. But, it is high time for us to accept this reality and move on with our affairs. In any case, the wheels of the justice delivery system cannot be permitted to come to a grinding halt by reason of the pandemic.
Judgment
As a result, the Crl.M.C was dismissed. In view of the submission of the learned Special Public Prosecutor, of the trial court being equipped for video conferencing, it was directed that in the event of the petitioner seeking permission to conduct cross-examination of witnesses through video conferencing mode, such request shall be considered positively.
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