The Kerala High Court on Thursday, September 22, refused to transfer the 2017 Kerala actor sexual assault case to a different judge. The complainant in the case, sought a transfer alleging that the judge currently hearing the case, Honey M Varghese of the Ernakulam Principal District and Sessions Court, had a personal bias against the complainant. She submitted an audio clip of a phone conversation allegedly between actor Dileep, who is accused of masterminding the sexual assault, and a lawyer called Ullas, where the two are discussing judge Home M Vargheseâs husband Jijo Jose, who is a Circle Inspector of the Excise Department. However, Justice Ziyad Rahman AA of the Kerala High Court refused her plea, and said that the evidence provided by the complainant was not strong enough to warrant a transfer of the case.
In February 2017, a female actor was sexually assaulted in a moving vehicle, by a man named âPulsarâ Suni. The prosecutionâs case is that Suni was hired by top Malayalam actor Dileep, who wanted revenge against her for reportedly revealing to his then wife Manju Warrier that he was having an affair with actor Kavya Madhavan. The trial in the case started in 2019, and since then, there have been several developments in the court of judge Honey M Varghese, which resulted in controversies. The memory card with the visuals of the sexual assault, which was in the custody of the judge, has been accessed illegally at least once, according to forensics reports.
In her plea filed in the High Court in July 2022, the survivor sought the transfer of the case to a different judge, giving three reasons. The first was the audio clip between Dileep and lawyer Ullas, where the two are referring to a case of custodial torture, in which proceedings were initiated against Jijo Jose.
The second reason cited was Judge Honeyâs alleged hostility to the prosecution, which led to the resignation of two prosecutors and her conduct throughout the trial. The judge at one point sent the memory card containing the visuals of the sexual assault for forensic examination without informing the prosecution, and when the prosecution found out that the judge had done so and asked her about the same, she refused to share the findings of the report with the prosecution. Legally, a judge should not be sending any evidence for examination, that is the prosecutionâs job. The third reason was the unauthorised access of the memory card containing visuals of the assault.
The HC however rejected the arguments assigning a motive to the conduct of judge Honey and the resignation of the first Special Public Prosecutor (SPP) as grounds for transferring the case, since they had already been brought up by the survivor in an earlier petition with the same demand.
âVoice clip does not establish connection between judge and accusedâ
The voice clip which was recovered from one of the mobile phones of Dileep contains a reference to a case of custodial torture, in which Judge Honeyâs husband â Circle Inspector of the Excise Department Jijo Jose â has been named.
In the said voice clip, Ullas says that judge Honey had contacted an advocate named Santhosh, who is the counsel of the first accused in the custodial death case. The subsequent police investigation proved that Ullas and Santosh had been in touch several times and that Santosh was indeed representing another officer who was accused along with Jijo Jose. The police also found that Santhosh called the judge once right after he received a call from Ullas.
The High Court judge said that he could not âaccept it for several reasonsâ. The judge stated that there was ânothingâ to indicate that actor Dileep was able to establish âa direct or indirect connectionâ with Judge Honey and added that the audio clip was âtoo remote to concludeâ that there was a possible link with the judicial officer.
âIt is to be noted that the apprehension is in respect of a judicial officer who is under an obligation to dispense justice without fear or favour. Unless the allegations or apprehensions are so strong and create an impression in the judicial mind of this court that such allegations or apprehensions are reasonable and probable, the same cannot be relied upon. Even after anxiously and meticulously examining the same, I am unable to find it that way,â the judge noted.
A senior advocate, speaking to TNM, points out that while the court says that there was not sufficient evidence to prove the connection between the accused and the judge, the court itself has pronounced the order based on speculation. âThe court narrates the voice clip and its background, and keeps on trying to find plausible reasons for the connection between advocate Ullas and others.â
âMemory card was accessed but videos not tampered withâ
A forensic report during the course of investigation this year had said that the memory card containing the visuals of the assault was last accessed in December 2018, a year after actor Dileep was allowed to watch the visuals in court. The forensic report also said that the hash value of the memory card has changed.
The hash value of any digital file is unique to it, and the change of a hash value would mean that the file has been modified, tampered with, or completely replaced. However, there is no way to know who accessed it or when.
Concerning the apprehension of the survivor regarding the change in hash value of the memory card, the court observed that the memory card was accessed on three occasions, due to which there was a change in its hash value. Further, the court stated that the change in hash value only indicates that a change was identified in the device (memory card) and not with respect to the files containing the video clips. The court also added that this indicates that the âvideo clips were not tampered with, but the memory card was accessedâ.
âThere is no allegation that there was any tampering in the said video,â the court observed. The court did not go into the survivorâs allegation asking how the visual was accessed while it was in the courtâs custody.
Hostility of judge not proven
While it was contended that the resignations of two Special Public Prosecutors (SPPs) were due to the hostility and the alleged bias shown by judge Honey, the court said that the allegations made by the first SPP in the case, A Suresan, were found to be unacceptable by the court already. Suresanâs plea was rejected in November 2020. Regarding the resignation of the second SPP Anilkumar, the court said that there were no materials to substantiate the hostility apart from âmere allegationsâ. The court also pointed out an observation by the Supreme Court and said that the apprehension of a party must appear to the Court to be a reasonable one.
The HC order also claimed that the survivor was making these allegations as she was influenced by media trials. The advocate who TNM spoke to pointed out that the survivor, who is the only person who knows the pain of assault, is trying to get justice, but the court states that she might be âinfluencedâ. âShe was the one who sought a woman judge and she still does not say that she does not want one. All she says is that she is not feeling comfortable and the trial is not fair. At this point when a corruption allegation has come up, it is only fair that the judge should be changed or they recuse,â the lawyer said.
âAdministrative decision of transferring case is correctâ
The court observed that a substantial part of the trial of the case is already over in the presence of judge Honey, and entrusting the case to another judge at this juncture would cause serious practical difficulties, with the time limit fixed by the Supreme Court.
The advocate talking to TNM also points out that there are several cases where the judges were transferred just ahead of pronouncing the order. âIn this case, the trial based on further investigation is yet to start,â they add.
Why was the case transferred in the first place?
In January 2019, the survivor approached both the High Court and the state government with three requests: the case should have an in-camera trial; a special court be constituted for hearing the case; and a woman judge should preside over the case. After observing that the survivorâs petition was legitimate and can be allowed as per the law, Justice V Raja Vijayaraghavan had announced in open court, in February 2019, that Additional Special Session Judge (SPE/CBI)-III Honey M Varghese will be hearing the case.
Recently, Judge Honey was transferred to the Ernakulam Principal District and Sessions Court, and the case was also transferred to this court. The survivor submitted a request before the Registrar of HC seeking not to transfer the said case to the court presided over by Judge Honey.
Resignations of prosecutors
The trial of the actor assault case commenced and as many as 80 witnesses were examined between January and October of 2020. In October 2020, both the survivor and the state government moved the HC seeking to transfer the case to any other competent court citing Judge Honeyâs personal bias. However, the HC had dismissed both the pleas stating that neither of them could produce any materials âto substantiate the personal bias of the learned judgeâ to warrant a transfer. The same was challenged before the Supreme Court, which was also dismissed.
Following this, the Special Public Prosecutor (SPP) of the case A Suresan had quit the case and SPP VN Anilkumar was appointed in his place, who also eventually quit the case after a year. Both these prosecutors had told the state government that Judge Honey Vergheseâs attitude had made it untenable and therefore they had to leave the case. Recently, Senior advocate V Aja Kumar was appointed as the SPP of the case.