Akhil v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942** ## **Crl.MC.No.2831 OF 2020(D)** **CRIME NO.507/2015 OF Valiyamala Police Station , Thiruvananthapuram** ## **PETITIONER:** **AKHIL AGED 27 YEARS** **S/O. CHITHARANJAN NAIR, RESIDING AT AKHIL NIVAS, PULLIKONM, PANAKODE P.O., THOLICODE, THIRUVANANTHAPURAM DISTRICT,PIN -695 031** **BY ADV. SRI.J.R.PREM NAVAZ** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA , ERNAKULAM, PIN-682 031** - **2 MOTHER OF VICTIM X** - **3 VICTIM X** - **4 THE STATION HOUSE OFFICER, VALIYAMALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.B.JAYASURYA, PUBLIC PROSECUTOR, SRI.AJOY VENU** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No. 2831 of 2020 2 ## ALEXANDER THOMAS, J. -----------------------------------Crl.M.C. No. 2831 of 2020 -----------------------------------Dated this the 24[th ] day of September, 2020 ## **O R D E R** The prayer in the above Crl.M.C filed under Sec.482 of the Cr.PC is as follows. _“.........to quash the FIR in Crime No.507/2015 of Valiyamala Poluce Station, Thiruvananthapuram District registered for the offences punishable under Sec.376 of the Indian Penal Code and under Sec.3 and 4 of the Protection of Children from Sexual Offences Act, 2012 and all further proceedings pursuant to it, as against the petitioner/accused, in order to secure the ends of justice.”_ 2. Heard Sri.J.R.Prem Navaz, learned counsel appearing for the petitioner, Sri.B.Jayasurya, learned Public Prosecutor appearing for R1 & R4 and Sri.Ajoy Venu, learned Advocate appearing for contesting respondent Nos.2 & 3. 3. The petitioner, who is the non-resident Indian and has been subsequently arrayed as sole accused in Anx.A1 FIR in Crime No.507/2015 of Valiyamala Police Station, Thiruvananthapuram District. The abovesaid crime has been registered as a person missing case under Sec.57(a) of the Kerala Police Act, on the First Information Statement furnished on 06-09-2015 by the 2[nd] Crl.M.C. No. 2831 of 2020 3 respondent (mother of the alleged victim) stating that her minor daughter (3[rd] respondent) is missing. The police after investigation has subsequently arrayed the petitioner as a sole accused for offences punishable under Secs.376 of the IPC read with Secs. 3 & 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, in said crime as per Anx.A-3 additional report. 4. The petitioner would assert that he is absolutely innocent of the allegations alleged against him and that since the period during which the alleged incident is said to have happened the petitioner was in Dubai in connection with his job and that he was no where in Kerala or in the place of alleged occurrence of the crime at Valiyamala, Thiruvananthapuram District. 5. The petitioner would contend that Anx.A-4 entries in his passport would clearly show that he is having Indian Passport bearing No.K3404289 and that he had left India and reached Dubai on 16-03-2015 and returned back thereafter for the first time only on 20-07-2019. The period during the alleged incident is said to have taken place is four months prior to the furnishing of the Statement on 10-09-2015 by the 3[rd] respondent victim, under Sec.161 of the Cr.PC and going by the said version, the incident is said to have happened 4 Crl.M.C. No. 2831 of 2020 in May 2015. At this point of time, petitioner would assert that he was never in India. Further that respondent No.2 (minor victim's mother) & respondent No.3 (minor victim) has now sworn to Anxs.A5 & A6 affidavits dated 10-12-2019 stating that the impugned criminal proceedings have arisen due to mistake of fact and that they are not interested to proceed further with Anx.A1 final proceedings against the petitioner/accused and that they have no complaint against the petitioner/accused. The petitioner would contend that the continuation of the impugned criminal proceedings pursuant to Anx.A1 would amount to abuse of the process, etc. 6. To a specific query as to whether the investigation in this case has been completed, both learned counsel appearing for the petitioner and the learned Public Prosecutor would submit that it is reliably learned that the investigation is still going on and has not been completed and that the final report has not so far been filed. 7. It is by now well settled by series of the rulings of the Apex Court and this Court that serious offences as in cases involving rape as per Sec.376 of the IPC may not be amenable for quashment on the ground of settlement between the parties etc, _[see_ _**Shimbhu v. State of Haryana [2014 (13) SCC 318], Parbatbhai Aahir v.**_ 5 Crl.M.C. No. 2831 of 2020 _**State of Gujarat [2017 (9) SCC 641], Anita Maria Dias v. State of Maharashtra, [2018 (3) SCC 290], Sebastian @ Solly v. State of Kerala [2015 (1) KLJ 384]**_ etc]. In these cases of this nature it is solemn statutory responsibility and obligation of the Investigating Agency to have comprehensive and exhaustive investigation of the all aspects of the case in order to ascertain whether the allegations raised against the accused persons are correct or false etc. Indeed, it is by now well established by series of judicial rulings that it is the solemn duty of the investigating agency to ferret out the unvarnished truth of the matter. Therefore it goes without saying that the approach of the police authorities and the Investigating Agency should not be merely to charge sheet the accused person arrayed in the FIR at any cost. Therefore it is for the Investigating Agency to fulfil its onerous statutory obligation, ascertain the truth of the matter after exhaustive and comprehensive investigation into all aspects of the matter. 8. In view of the facts and circumstances disclosed in this case it is ordered in the interest of justice that the District Police Chief, Thiruvananthapuram will immediately ensure that the further investigation in relation to crime No.507/2015 of Valiyamala Police Crl.M.C. No. 2831 of 2020 6 Station, Thiruvananthapuram is entrusted to a superior officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police, who will conduct an exhaustive and comprehensive investigation into all aspects of the matter and should also take all sincere and honest efforts to ascertain the correctness of the case of the petitioner that he was not in India at the time of the alleged incidents in relation to the abovesaid crime as referred to herein above. Further Investigation in this case may be duly completed without much delay preferably within a period of six months, at any rate, within the outer time limit of eight months from the date of handing over of the further investigation of the trial to the new officer. 9. The learned counsel for the petitioner has submitted that the petitioner had earlier filed an anticipatory bail application as BA No.4834/2020 before this Court, in which leave was granted by this Court to the petitioner to withdraw the said Bail Application with liberty to file a fresh Anticipatory Bail application in order to enable the petitioner to file proper affidavits in the matter and that the petitioner will be moving the Anticipatory Bail application before this Court without much delay. It is for the petitioner to work out his Crl.M.C. No. 2831 of 2020 7 remedies in the manner known to law. It is only for the purpose of enabling the petitioner to move the Anticipatory Bail application it is ordered in the interest of justice that further coercive steps including the proposed arrest of the petitioner in relation to the abovesaid crime No.507/2015 of Valiyamala Police Station, Thiruvananthapuram may be deferred by the Investigating Agency concerned for a period of six weeks or until orders are passed by the competent court in the Bail Application that may be filed by the petitioner, which ever is earlier. 10. The petitioner will produce a certified copy of this order before the Investigating Officer concerned as well as before the Special Sessions court, notified to deal with POCSO cases, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C. No. 2831 of 2020 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE-A1**|**TRUE COPY OF THE FIRST INFORMATION**| |---|---| ||**STATEMENT IN CRIME NO.507 OF 2015**| ||**REGISTERED BY THE VALIYAMALA POLICE**| ||**STATION, THIRUVANANTHAPURAM DISTRICT**| |**ANNEXURE-A2**|**THE TRUE COPY OF THE REPORT DATED**| ||**08.09.2015 GIVEN BY THE STATION HOUSE**| ||**OFFICER VALIYAMALA POLICE STATION,**| ||**THIRUVANANTHAPURAM DISTRICT BEFORE THE**| ||**JUDICIAL MAGISTRATE OF FIRST CLASS-I,**| ||**NEDUMANGAD**| |**ANNEXURE-A3**|**THE TRUE COPY OF THE ADDITIONAL REPORT**| ||**GIVEN BY THE STATION HOUSE OFFICER**| ||**VALIYAMALA POLICE STATION,**| ||**THIRUVANANTHAPURAM DISTRICT DATED**| ||**10.092015**| |**ANNEXURE-A4**|**TRUE COPY OF THE 12TH PAGE OF THE**| ||**PETITIONER'S INDIAN PASSPORT BEARING**| ||**PASSPORT NO.K3403289**| |**ANNEXURE-A5**|**THE NOTARIZED AFFIDAVIT DATED**| ||**10.12.2019 OF THE 2ND RESPONDENT**| |**ANNEXURE-A6**|**THE NOTARIZED AFFIDAVIT DATED**| ||**10.12.2019 OF THE 3RD RESPONDENT**| ## **RESPONDENT'S/S EXHIBITS: NIL**