1. This W.P.(Crl) is preferred by the petitioner, who is the sole accused in C.C.No.29/2023, which is pending before the Special Additional Chief Judicial Magistrate Court, Ernakulam. The case stems from a private complaint preferred by the 5th respondent herein alleging offences under Section 406, 417, 418, 420 and 423 of Indian Penal Code.

2. The instant Writ Petition is filed seeking a facility for the learned Senior Counsel, Sri.B.Raman Pillai - who is appearing on behalf of the petitioner/accused - to conduct sitting in a court room, which has a lift facility for the purpose of access. It is the specific contention that the Special Court, CJM, Ernakulam is in the 1st floor and one has to climb the stairs to reach the court. The learned Senior Counsel, because of his ailment, is not in a position to do that. It is in such circumstances that the present writ is filed, essentially for the following relief:

“i. Direct the respondents no 1 to 4 to make arrangement and shift the sitting of the Court of Special Chief Judicial Magistrate (for the trial of criminal cases against sitting and former MPs/MLAs of the State), Ernakulam to any other court rooms on the Court complex's ground floor so as to enable the senior counsel to cross examine PW1 in C.C.No.29/2023 on the file of Special Chief Judicial Magistrate (for the trial of criminal cases against sitting and former MPs/MLAs of the State), Ernakulam.”

3. This application is seriously opposed by the 5th respondent by filing a counter affidavit, along with the exhibits.

4. Heard Sri.S.Rajeev, learned counsel for the petitioner; Sri.V.Sethunath, learned counsel for the 5 th respondent and Sri.Aneesh James, learned Standing Counsel for respondents 2, 3 and 4.

5. Learned counsel for the petitioner would submit that the petitioner would limit his prayer for the purpose of cross-examination of PW1. It is submitted that the J.F.C.M – III, Ernakulam, is not conducting sitting on Thursdays and Fridays, since the Court is officiating as the Juvenile Justice Court on the said days, for which reason the said court hall accessible by lift, will be free. Learned cousel would add that learned Senior is prepared to crossexamine PW1 on Friday, the 9th of September, 2024.

6. This Court will now address by the objections raised by the learned counsel for the 5th respondent. Primarily, learned counsel would submit that the present attempt is nothing, but a delaying tactics. The case was posted for trial on 16.08.2024 and the petitioner somehow wants to avoid the trial. In support of the above assertion, learned counsel would submit that this is a case, which commenced in the year 2019 and that the matter was taken to the Apex Court, twice. Besides, two Criminal Miscellaneous Cases and two Criminal Revision Petitions were also filed before this Court, all causing delay in disposing the above Calendar Case. Secondly, learned counsel would submit that the instant Writ Petition under Article 227 of the Constitution is not maintainable. None of the fundamental rights of the petitioner is violated. At best, a Writ Petition under Article 226 of the Constitution would lie. Thirdly, learned counsel would submit that Ext.P1 is not even a petition preferred by the petitioner/accused, but only a letter addressed to the learned Magistrate. No relief can be granted on the strength of Ext.P1, is the submission. Fourthly, the refusal of the learned Senior Counsel to cross examine the witness through Video Conferencing is violative of the enabling provision in Article 530 of the Bharatiya Nyaya Sanhita, 2023. Fifthly, it is the contention that a court premises cannot be shifted to suit the convenience of the counsel for the accused. It was also pointed out that the learned Senior Counsel had not even filed a memo to show his engagement on behalf of the accused. Lastly, learned counsel would submit that the learned Senior Counsel is appearing in as many as 19 cases in the C.B.I Court, which is housed in the 1 st floor.

7. This Court ascertained from the Registry the correctness of the submission made by the learned counsel for the petitioner, as regards the availability of J.F.C.M -III, Ernakulam on Thursdays and Fridays, and it was confirmed that the court hall is free on those days, which is in the 4th floor, but accessible by lift.

8. Having heard the learned counsel appearing for the respective parties, this Court is inclined to allow the limited prayer, as made before this Court by the learned counsel for the petitioner. This Court notice that the petitioner would limit his prayer only for the purpose of cross-examination of PW1 and that the learned Senior Counsel is prepared to cross-examine PW1 on the coming Friday, i.e., 06.09.2024. This would essentially take care of the main grievance of the 5th respondent that the attempt of the petitioner is to drag the proceedings, by one means or other. This Court will clarify that no further time shall be granted for the crossexamination of PW1, except on the coming Friday (06.09.2024), inasmuch as, the arrangement now sought to be made is not something usual, and in deviation to the recognised practice and procedure.

9. Regarding other contentions of the 5th respondent, this Court finds little merit. Having regard to the contours of the jurisdiction under Article 227, it cannot be said that the instant Writ Petition is not maintainable. The contention that the petitioner has only preferred a letter and not a petition as such, also should not stand in the way of this Court exercising its powers under Article 227, once this Court is convinced of the genuineness of the request made. As regards the enabling provision under Section 530 of the BNSS, it is not the contention of the petitioner that the learned Senior is not prepared to cross-examine the witness through video conferencing. Instead, the contention is that for effective cross-examination, it is always advisable and beneficial to do the same in the physical mode, than in the virtual mode. Therefore, the said contention also cannot stand in the way. Now, coming to the fourth contention regarding shifting the premises, it is not an absolute rule that the premises cannot be shifted for any reason, whatsoever. It is a matter within the administrative realm of the High Court and this Court in exercise of its powers under Article 227 can give appropriate directions and instructions to the administrative side of the High Court. The question as to whether the Senior counsel has filed a memo, expressing his willingness to appear for the accused, would pale into insignificance, inasmuch as this Court has ascertained through the learned counsel for the petitioner regarding the availability and willingness of the learned Senior to cross-examine PW1 on the date afore-referred.

10. In the circumstances, there will be a direction to the 4th respondent to make suitable arrangements to conduct sitting of the Special Additional Chief Judicial Magistrate Court, Ernakulam in C.C.No.29/2023 in the premises of J.F.C.M -III, Ernakulam on 06.09.2024, solely for the purpose of cross-examination of PW1. The learned Special Additional Chief Judicial Magistrate can fix the time for cross-examination of the said witness and can shift to the J.F.C.M - III, Ernakulam for the said purpose. Every endeavor should be made to ensure that maximum time is allowed to the learned Senior to cross-examine PW1 by limiting the roll call, in view of the direction contained in this judgment that the same shall be finished on 06.09.2024 itself. If for any reason, the crossexamination of PW1 could not be finished on 06.09.2024, no further facility can be afforded to the learned Senior and further proceedings, including cross-examination of PW1, will be conducted in the regular court hall of the Special Additional Chief Judicial Magistrate. Any instructions in furtherance of and supplementary to what has been given above and which is required in the facts and circumstances, will be given by the 4 th respondent, so as to ensure the smooth conduct of the proceedings.

11. This Writ Petition is allowed as above.