TNM spoke to some senior lawyers, who seem to agree that Justice Abraham Mathew should have recused himself from the case on moral grounds.

Case of integrity Should Kerala judge facing criticism for acquaintance with Krishnadas have recused himself
news Law Wednesday, March 22, 2017 - 12:07

18-year-old Jishnu Pranoy was found dead in his college hostel in January this year. Mahija, the aggrieved mother, is still coming to terms with the loss of her son but she now believes that she may never get justice from the court. 

On Tuesday, Mahija approached the Chief Justice of Kerala High Court, petitioning the court to protect the people's belief in law and order.

She has asked that Justice Abraham Mathew be removed from hearing cases against Nehru Group Chairman P Krishnadas. Mahija alleges that the judge is an acquaintance of Krishnadas and that his personal bias could influence the case.

The petition came a day after the Kerala High Court slammed the police for arresting P Krishnadas on Monday, based on a complaint of harassment filed by an LLB student Shaheer Shoukathali, only days before Jishnu's death.

Justice Abraham Mathew criticised the police action of adding non-bailable charges against Krishnadas, which were not included earlier. A number of photographs of Justice Abraham Mathew with legal advisor Suchithra and the Lakkidi college Principal Sebastian has sparked outrage among many, raising questions on how the judge could hear a case in which the accused happens to be his acquaintance.

Read: Was judge who slammed police for Krishnadas's arrest his friend? Jishnu's mother complains to CJ

The News Minute spoke to a number of senior lawyers, who seem to agree that Justice Abraham Mathew should have recused himself from the case on moral grounds.

Questions also arise as to why a High Court Judge should comment on an anticipatory plea petition, after the police arrest. Legal experts say that usually courts never take up anticipatory bail applications after the arrest has taken place and that it was not legal either. Experts say that though the High Court has inherent powers of 482, in this case this cannot be applicable as it was an anticipatory bail plea.

B Udayabhanu, public prosecutor for the Jishnu case said that whether or not a judge should recuse himself from a case is dependent on the integrity of the individual. Refusing to comment further on the matter, Advocate Udayabhanu said:

"This is an unsaid rule, and completely depends on the integrity of the concerned individual. The need to recuse himself should come from his (judge's) own mind, and not as a result of public pressure. It is up to the judge to decide on that. It is meaningless to demand that all judges must follow this unsaid rule, it all depends on the integrity of the person concerned," he added.

Senior criminal lawyer Ram Kumar was of the opinion that Justice Abraham Mathew must recuse himself if the allegations against him are true. However, if they are found to be false, then the judge must defend himself, feels advocate Ram Kumar.

"It depends on the person's conscience. if the allegations are true, then he should recuse himself from this case. On the other hand, if the allegations aren't true and is intended to blackmail the judge, then he must defend himself," said advocate Ram Kumar.

Having said this, the senior lawyer also expressed doubts on the credibility of the photographs that attempt to expose the judge.

"Why were those photographs released at this time? Isn't the timing suspicious? We do not know the truth of this photograph, it could even be morphed. However, as of now, the photographs does not appear to be morphed. But again, what if the photo was released to blackmail him? There are numerous possibilities," Ram Kumar added.

Commenting on the HC's action, the lawyer said:

"The real legal question is, the HC now has no jurisdiction to deal with anticipatory bail application, because the accused is already arrested. Application for anticipatory bail is relevant only at the pre-arrest phase and not the post arrest phase. Right or wrong, he has been arrested. That means it is the end of the anticipatory bail application. HC cannot pass any orders on anticipatory bail application because it has now become redundant."

Senior lawyer and former member of parliament Sebastian Paul says :

“A Judge should not be biased, others should not feel that he is biased. Even if people don't know whether there is a relation between a judge and clients, many judges recuse themselves. To recuse from a case, a judge doesn’t have to even mention the reason. That is what the concept of the word ‘recuse’. is It is an unwritten law of ethics that judges follow. Here, if the judge recuses himself from the case, this implies that he doesn’t have any hidden interests. But, if he is not ready to do so, that would imply there are some interests,” Sebastian Paul said.

High Court Lawyer JS Ajith Kumar also commented that these are nepotism allegations and it is considered to be serious.

“After the arrest the bail application should go to lower court - that was the first issue in the case. The second, was the judge should not have given a chance for these nepotism allegations. If he had any relation with the clients he could have recused as it is a common ethical practice,” High Court advocate JS Ajith Kumar said.

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