The Kerala High Court dismissed the petition of Former Bishop Franco Mulakkal on 1st October 2020, Thursday pleading for adjournment of the trials in the nun rape case due to the COVID-19 crisis in Kerala.
The Bench comprised of Justice VG Arun who dismissed the plea of the Former Bishop and stated that It is high time for us to accept the reality and move on with our daily affairs. In any case, the wheels of justice delivery system cannot be allowed to come to a grinding halt just for the reason of pandemic.
Background of the case
It has to be noted that Mulakkal was accused of raping a nun on multiple occasions during the period of 2014-2016 by using his dominant position. Allegations against the accused had first surfaced in the time of July 2018 when a collective called Save our Sisters had launched the public protests for the arrest of Franco. Later on, a special investigation team of Kerala Police made their submissions and filed a charge sheet against him for the offences punishable under Section 342 (punishment for wrongful confinement), 376(2)(k) (punishment for sexual assault), 376(2)(n) (committing rape with the same woman), Section 376C(a) (whoever has taken the advantage of his superior position), Section 377 (unnatural offences) and Section 506(I) (punishment for criminal intimidation) of the Indian Penal Code, 1860.
The victim was examined on 16/9/2020 in chief and once the examination was completed, C.M.P.No1101 of 2020 was filed by the advocate of the petitioner on 17/9/2020 requesting to defer from the cross-examination of CW1 until the pandemic gets in control or to adjourn the cross-examination by at least two months, and the reason given for making such a plea was that the inability of Senior Counsel who was appearing for the petitioner, to be present at Kottayam for conducting the further cross-examination.
Further, it was mentioned that the senior counsel appearing for the petitioner is around 73 years old and has several age-old ailments and because of the current pandemic situation is confined to his residence in Ernakulam. But this, petition was disposed of and the matter was adjourned for a period of two weeks and the case is posted for the next hearing on 5/10/2020 with the rider that no further adjournment requests will be entertained from the petitioners side.
Contentions made by Counsel of accused
It was averred by the advocate of Mulakkal that the sessions case was of the year 2019 and the Court was showing undue haste by insisting to proceed with the trial. The counsel further pleaded that at least a breathing time should have been granted for making arrangements for the accommodation and other facilities of the Senior Counsel.
They also argued that the folly committed by the trial court should be corrected by deferring the trial until at least the end of the month.
Contentions made by Special Public Prosecutor
The public prosecutor pointed out that the de facto complainant is being provided round the clock protection as she is being exposed to threats from various quarters, which is yet one of the most valid reasons that her cross-examination should be completed without any further delay.
Also, it was submitted that the Additional District and Sessions Court-I, Kottayam is very well equipped to conduct the examination of witnesses through the medium of video conferencing and it would be easily possible for the Senior Counsel to conduct the cross-examination of CW1 (Victim) and other witnesses through the online mode.
Analysis of Court
The Single Bench noted that As rightly noted by the Sessions Judge, the requirement under section 309(1) of CrPC is of continuing the trial on a daily basis till all the witnesses in attendance are completely examined unless the court finds the reason to adjourn the proceedings beyond the following day to be necessary.
In fact, the proviso of Section 309(1) of CrPC emphasizes and mandates the completion of the trial regarding the offences under Section 376 of IPC within a period of two months from the date of filing the charge sheet. The Court also remarked, Though the mandate of the proviso doesnt completely denude the trial courts power to grant an adjournment, it clearly indicates the restricted manner in which the power should be exercised.
The Court also acknowledged that even though the chief examination of CW1 was completed on 17/9/2020, the learned Sessions Judge had adjourned the matter by further two weeks. Thus, the Court observed that the plea made by the petitioner is without substance as there was amply breathing time granted to the petitioner and the Senior Counsel. The Court also finds no reason to interfere with the order of the trial court.
Lastly, the Court opined that In the Courts considered opinion, it would be in the interest of all the concerned to see that the case attains its finality at the earliest. Even the High Court of Kerala followed this order and rejected the plea of Mulakkal stating that the trial of the case shall continue in the Chief Judicial Magistrates Court of Kottayam. The next hearing is scheduled duly on October 5, 2020, Monday.
Remarkably, the trial court in Kerala has also restrained the print and electronic media from publishing any matter with respect to the in-camera proceedings in the trial of the nun-rape case, where the Former Bishop Franco Mulakkal is the prime accused.
It should be noted that the accused, Franco Mulakkal had approached the Supreme Court questioning the judgment of the Kerala High Court and seeking his discharge from the nun-rape case. The Supreme Court had rejected the plea of Franco Mulakkal seeking a discharge from the criminal trial in the nun-rape case. The Bench was of Chief Justice SA Bobde, Justices AS Bopanna, and V Ramasubramanian who clearly stated that there was no case of discharge.
In July 2020, the High Court had passed in its order dismissing the petition of Franco Mulakkal that there are prima facie materials that indicate that the Sister was subjected to sexual assault as well as rape committed by him.
Justice Shircy V. had noted that It is not possible to infer that this Bishop/petitioner was falsely implicated by the mother of the Home functioning under him, on mere enmity as contended by him. The prosecution has produced the chronicle/ record showing that his stay in the Home on the relevant dates during his visits. Thus, the revision petition of Former Bishop Franco Mulakkal was rejected that was filed challenging the order of the trial court to discharge him of his rape and sexual assault allegations.
