The Opposition and members of the State’s judicial fraternity are seeking the High Court’s intervention over allegations of ‘’procedural flaws’’ in the conduct of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, while recording the statement of solar scam accused Saritha S. Nair.
Legal practitioner A. Jayasankar told The Hindu that he will move the Vigilance Wing of the Kerala High court on this issue.
Opposition leader V.S. Achuthanandan on Sunday demanded the intervention of the High Court of Kerala. Pinarayi Vijayan, the CPI (M) State secretary, too came out against the magistrate court’s procedural errors. Senior lawyer K. Ramkumar suggested that the appeal court should obtain a report from the magistrate on the legality and propriety of his action and direct remedial measures.
Responding to the developments, N. Anil Kumar, Registrar, (Subordinate Judiciary), Kerala High Court, said “The High Court has not received any complaint from the parties to the proceedings or from any other sources. The High Court cannot act suo motu in such cases as contemplated by law unless any blatant error striking at the judicial conscience is brought out,” he said.
Senior lawyers pointed out that any of the affected parties in the proceedings, including the police, the accused or the lawyer could have filed a complaint with the higher judiciary about the conduct of the magistrate’s court. The lawyer had every right to represent the accused in custody in the magistrate court, they said.
Mr. Ramkumar felt that the image of the judiciary has suffered a beating by the strange actions of the magistrate, which warranted the intervention from the High Court.
Regarding the recording of the statement, he said the entire procedure followed by the magistrate in the case was flawed. When an accused appears before a magistrate and expresses the desire to speak out about a case, the primary duty of the magistrate is to record that statement under Section 164 of the Criminal Procedural Code.
There are no provisions in law which permit the magistrate to conduct an interview with the accused after closing the doors of the court room. The very fact that the court asked all the litigants and lawyers to be outside the court room indicated that the magistrate was going to record the statement of the accused. After listening to the accused for 20 minutes, the magistrate was bound to record her statement, he said.
The CrPC does not contemplate any oral transactions between magistrate and an accused. Once the accused expresses the desire to speak out, the magistrate must follow the procedures as prescribed in Sec.164 of the Code and record the statements after giving time for reflection., he said.
The faulty procedure led to the shutting out of material evidence. It was also irregular on the part of the magistrate to take note of the media publicity. The court should not be concerned about media publicity and it should not embroil itself in political controversies and should steer clear from political polemics, said Mr. Ramkumar.
Referring to the magistrate’s order which stated that “rumours have spread that the court had recorded the statements of the accused in the facts of the case and she had revealed the names of Cabinet Ministers in the State and the court had further prohibited dissemination of said facts,” Mr. Ramkumar said that there was no occasion for the magistrate to sit in judgement over rumours and reports without specifying what they were and who was trying to outwit the court.
High Court lawyer Sivan Madathil said the procedures followed by the magistrate created suspicion in the minds of members of the legal fraternity as well as public. The revelations of the counsel of the accused added to the suspicion. There was also no legal provision for him to disqualify the lawyer representing the accused in the case, Mr. Madathil said.
Mr. Jayasankar said that the judge had no right to question the integrity of the lawyer who represented the accused.