1. This is a petition filed by the respondent to avoid the final hearing of this case and direct the appeal to be posted before another Bench. The reasons advanced by the respondent to avoid this matter are stated in paragraph Nos.1 to 4 of the petition. The same read as under:

                  1. It is humbly submitted that the respondent/accused in the was tried found guilty, convicted and sentenced by your lordship in

C.C. No. 2 of 2010 while my lordship was sitting as the Enquiry Commissioner & Special Judge, Thiruvananthapuram.

                  2. It is submitted that it may not be fair for this court to hear this appeal and the appeal may be avoided in the interests of fairness and interests of justice.

                  3. The hearing of the above case is posted on 03/12/2025 as item No.3 and the above fact is brought to the attention of this court.

                  4. The request for adjournment is made bona fide and not with an intention to delay the proceedings.

2. The learned Public Prosecutor has filed a detailed objection, particularly as referred in paragraph Nos. VII to XV. The same read as under:

                  VII.     Criminal M.A. No. 1/2025 has been filed by the petitioner seeking relief to avoid hearing by this Honourable Court and to have the matter posted before another Bench. The petitioner contends that this Honourable Court had earlier heard another case in which the petitioner was an accused and was convicted and sentenced by this Honourable Court while holding the position of Special Judge, Thiruvananthapuram, in C.C. No. 02 of 2010. It is alleged that, in these circumstances, it may not be fair for this Honourable Court to hear the present appeal and pass orders.

                  VIII.    It is respectfully submitted that the applicant is arrayed as Accused No. 1 in another Vigilance Case, VC 8/2004/SIU, in which the final report was filed under Section 13(2) read with Section 13(1) and (d) of the Prevention of Corruption Act, 1988, and under Sections 465, 468, 471, 477-A and 120-B of the Indian Penal Code. The case was taken on file as C.C. No. 02 of 2010. The trial of that case was conducted while this Honourable Court was holding the position of Special Judge, Thiruvananthapuram. It is true that Accused No. 1 in that case is the petitioner herein, who was convicted by the Special Court vide judgment dated 02.05.2017.

                  IX.      It is submitted that, against the conviction and sentence in the aforesaid case, the petitioner preferred an appeal before the Honourable High Court of Kerala as Crl. A. No. 405 of 2017. The Honourable High Court found the petitioner not guilty of the offences and accordingly acquitted him. Thereafter, a Petitions for Special Leave to Appeal (Crl.) Nos. 696-697 of 2022 (Diary No.2231/2022) was filed by the State of Kerala before the Honourable Supreme Court of India, and the same is presently pending consideration before the Honourable Court.

                  X.       It is submitted that the present Crl. A. No. 802 of 2024 has no connection with the aforesaid case. The present matter was investigated and the final report was filed by the Special Cell, Thiruvananthapuram, whereas the other case was investigated and concluded by the Special Investigation Unit under the Bureau. Both cases are entirely distinct, having arisen from separate and unrelated facts.

                  XI.      It is submitted that the reasons mentioned in the present Crl. M.A. are highly technical and hypothetical in nature. No apparent prejudice has been demonstrated in the petition, except for the vague assertion that fairness requires such relief. It is further submitted that no explicit prohibition is found in law. There exists no specific provision that forbids a Judge from hearing an appeal merely because the same Judge had previously dealt with another case involving the same accused, even if such prior role was in the capacity of Special Judge.

                  XII.     It is humbly submitted that a Judge's prior judgment or legal opinion in another matter does not, by itself, constitute bias. Judicial impartiality is always presumed unless clear prejudice is demonstrated. Judges are expected to decide without far or favour and recusal cannot be demanded merely on the basis of an earlier adverse judgment against the respondent. It has been held consistently that a Judge is not automatically disqualified from hearing a case simply because he or she has previously ruled against the same accused in another matter. Recusal is warranted only when there exists a reasonable apprehension of bias or conflict of interest. It is also well settled law that no litigant can dictate who should constitute the Bench. A party cannot insist that a Judge who has earlier decided a case on a particular issue, which may subsequently go against his interest, should not hear his case.

                  XIII.    It is submitted that it is not illegal for this Honourable Court to hear the present appeal. Merely convicting or ruling against the same accused in another case does not disqualify a Judge from hearing a subsequent matter that has no relation to the earlier case. Recusal is warranted only where there exists a real likelihood of bias, and not on the basis of mere suspicion Courts have consistently cautioned that petitions seeking recusal on weak or technical grounds may amount to attempts to delay the course of justice. Unless the petitioner demonstrates a reasonable apprehension of bias, such recusal applications are not maintainable and are liable to be dismissed as devoid of merit.

                  XIV.    It is submitted that the Constitutional Bench of the Honourable Supreme Court in Indore Development Authority v. Manohar Lal and Others, reported in 2019 KHC 7074 has held as follows:

                  30. The entire judicial system is based on sound constitutional principles. The roster making power is bestowed on the Chief Justice of India so that litigants are not able to choose the Judges before whom they have to argue a matter, and he is a constitutional functionary who has been enjoined with this task at the highest pedestal to exercise the power of roster making. He is the repository of faith. Once he has exercised his power, it is not for the Judges to choose. As per their oath, they have to discharge their duties without fear and favour and in a dispassionate manner without any ill will, bias towards litigants, or a cause. The question which arises is whether merely delivering a judgment of which correctness is to be examined, would disqualifying a Judge from being part of the larger Bench. The answer to the question has to be in the negative as there is a consistent practice of this Court which has evolved that the Judges who have rendered a decision earlier in smaller combination, have also formed part of the larger Bench, and there are umpteen occasions as mentioned above when Judges have overruled their own view. The above said judgment may also be taken note of by this Honourable Court, and the very same principle may appropriately be applied in the present case.

                  XV.     It is submitted that the apprehension raised by the applicant in Crl.M.A. No. 1/2025 is baseless and untenable in the eyes of the law.

3. Going through the reasons stated for allowing the petition and the contentions raised by the learned Public Prosecutor as extracted hereinabove, it could be noticed that trial and conviction of the respondent in C.C. No.2/2010, while I was functioning as the Special Judge, is the sole ground whereupon the respondent seeks to avoid this case to be heard by this Court. In fact, in the detailed objection, the learned Public Prosecutor contended that the grounds urged in the petition are highly technical and hypothetical in nature. It is the trite law that a Judge has to decide a case based on the evidence available in the case and there is no restriction for a Judge to try or to hear a case or an appeal arose out of a totally different case, merely on the ground that the appellant/litigant there was tried and convicted by the same Judge earlier.

4. As submitted by the learned Public Prosecutor, this Court acquitted the accused/respondent herein after setting aside the conviction imposed by the Special Court in C.C. No.2/2010, which was a judgment rendered by me as the Special Judge. Now, Special Leave Petitions at the instance of the State, challenging the said acquittal are pending before Honourable Apex Court for consideration. If so, on no stretch of imagination, it could be held that an acquittal or conviction recorded by a Judge in relation to an accused in a totally different case would stand in the way of considering or hearing an appeal at the instance of the same accused by the same Judge.

5. Similar is the position with regard to the prosecution agency as well. Thus, for the reasons stated in the petition, if this Court started avoiding cases, no cases will be heard by this Court, as in most of the criminal cases, one side is by the Prosecution and one Judge may have an occasion to acquit many accused persons in many cases and the prosecution agency would be aggrieved by the said acquittals. But, the prosecution agency cannot contend before the Court that, the Court by acquitting many accused persons, cannot try or hear cases of the prosecution. Therefore, the contention raised by the learned counsel for the respondent to get hearing of this matter by another Bench by avoiding the case is without any bonafides.

                  Therefore, there is no justification for this Court to avoid this matter and to refuse hearing of the same. Therefore, this petition must fail. Accordingly, this petition stands dismissed.