Alfonsa Thomas @ Shanti Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943** **CRL.MC NO. 3130 OF 2021** **SC 56/2019 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM CRIME NO. 1414 OF 2013 OF CHANGANASSERY** ## **PETITIONER/S:** ALFONSA THOMAS @ SHANTI THOMAS AGED 62 YEARS W/O. K.S THOMAS, KARIMATTOM HOUSE, PERUNNA P.O, CHANGANACHERRY VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT KOTTAYAM, PIN - 686101 BY ADV SASTHAMANGALAM S. AJITHKUMAR ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ERNAKULAM, PIN - 682031 2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ## **OTHER PRESENT:** R1 BY ADV. MANU.P.G- SR.P.P R2 PARTY IN PERSON THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON 04.08.2021 DELIVERED THE FOLLOWING: Crl.M.C.3130/2021 2 ## **ORDER** ## **DATED THIS THE 4TH DAY OF AUGUST, 2021** Heard Adv. Sasthamangalam S. Ajithkumar, the learned counsel for the petitioner, as well the 2[nd] respondent, party-in-person, and the learned Public Prosecutor. 2. The petitioner, who is the 2[nd] accused in S.C. No. 56 of 2019 now pending before the 1[st] Additional Sessions Court, Ernakulam has approached this Court seeking to quash Annexure 1 final report in Crime No. 1414 of 2013 of Changanacherry Police Station and Annexure 2 Court Charge in the case. Earlier the case was pending before the Additional District and Sessions Court-II,(Special), Kottayam as S.C. No. 153 of 2016. The case was transferred to the Sessions Division, Ernakulam and now pending as S.C. No. 56 of 2019. The crime was registered Crl.M.C.3130/2021 3 by the Changanassery police as No. 1414 of 2013 for the offences punishable under Sections 376, 377, 506(1) and 34 of Indian Penal Code. 3. The prosecution allegation is that under a false promise to marry the 2[nd] respondent, the 1[st] accused had sexual intercourse with her forcefully on 01.12.2011 at her residence and thereafter took her to Bangalore and then to his residence and had forceful sexual intercourse and unnatural sexual intercourse with her several times. Later, he had withdrawn from the promise to marry and on 05.12.2012 the 1[st] accused and this petitioner, the 2[nd] accused threatened her that if she discloses anything about the relationship, they will kill her and thereby committed the alleged offences. 4. The submission made by the learned counsel for the petitioner is that she being the 2[nd] accused and the mother of 1[st] accused, there is no allegation of rape under Section 376 of IPC Crl.M.C.3130/2021 4 against her. But, the only offence alleged against her by the prosecution is under Section 506(1) of IPC. The court has mistakenly framed charge for three distinct offences against the petitioner even though an independent offence has been alleged against her by the prosecution. Since she has been charged under Section 506(1) read with 34 IPC, her case has to be tried separately before a Magistrate Court and not before the Sessions Court along with the 1[st] accused is the main grievance projected by her before this Court. Hence, this petition to quash the final report submitted by the prosecution and the court charge framed against her in the case. 5. The 2[nd] respondent stoutly opposed the application contending that the 1[st] prayer sought for by the petitioner had already been considered by this Court and it was dismissed as per an order dated 20.11.2020 in Crl.M.C. No 7833 of Crl.M.C.3130/2021 5 2017. The 2[nd] prayer has also been dismissed by this Court in the revision petition filed before this Court as Crl.Rev.Pet. No.1231 of 2018 and now the reliefs sought for by the petitioner to set aside the charge framed against her and to quash the final report are not maintainable. This respondent has also pointed out that the charge was framed on 27.07.2018. But it was not challenged within a period of 60 days of framing of charge and the petitioner has come up before this Court after three years of framing the charge. Hence the petition is only to be dismissed. 6. The petitioner is the mother of the 1[st] accused. As referred above he has been charged for having committed offences punishable under Sections 376, 377 and 506(1) read with 34 IPC. But against this petitioner, the offence alleged is only to the effect that she had intimidated the defacto complainant along with the 1[st] Crl.M.C.3130/2021 6 accused. It is pertinent to note that this petitioner, as early as in the year 2017, has filed Crl.M.C. No. 7833 of 2017 before this Court challenging the final report submitted by the investigating agency with a prayer to quash the entire proceedings as against her. A learned Judge of this Court by an order dated 20.11.2020, after hearing both sides, dismissed the petition on the finding that there is no merit in the petition submitted by this petitioner. Annexure R2 (a) is the order in Crl.M.C. No. 7833 of 2017 In that Crl.M.C. she has contended that there is no material available as such to constitute an offence under Section 506(1) of IPC and hence the proceedings against her is liable to be quashed. As mentioned earlier the charge against the 1[st] accused are under Sections 376, 377 and 506(1) of IPC. But the specific charge against this petitioner is only under Section 506(1)read with 34 of IPC. A perusal of the Crl.M.C.3130/2021 7 final report submitted by the investigating agency would show that she has threatened the defacto complainant along with the 1[st] accused. Annexure 2 is the court charge of the learned Additional Sessions Judge. It could be seen that the petitioner, who is the 2[nd] accused, has been called upon to answer the charge for having committed criminal intimidation by threatening the defacto complainant that she will be killed if she disclose about the relationship to any one and therefore, both the accused had committed offence under Section 506(1) of IPC. In Crl.M.C.7833/2017 the learned Judge found that there are materials to support and to proceed with the trial of case and therefore there was no merits in the Crl.M.C and on that finding it was dismissed. 7. The trial court framed charge in the case on 27.07.2018. The 1[st] accused has filed a revision petition before this court as Crl.M.C.3130/2021 8 Crl.Rev.Pet. No. 1231 of 2018 and the said revision petition was disposed of by this Court on 04.10.2018 on the finding that there is nothing illegal in framing charge even with respect to the incident that took place outside the jurisdiction since it appears to be in the nature of an offence committed in the same transaction. Thereafter, the 2[nd] respondent filed a writ petition before this court as W.P.(C) No. 24561 of 2020 seeking a direction for an early disposal of the case and in that writ petition, the learned Judge directed the court below to dispose of the case at the earliest within a period of four months from the date of receipt of copy of the order by the Government on Ext.P1(the representation submitted by the petitioner). It appears that she has approached the Government alleging that the accused were granted bail without affording an opportunity to the prosecution to raise objection and hence, she has Crl.M.C.3130/2021 9 sought for the appointment of a Special Prosecutor under Section 24 (8) of Cr.P.C. Right now, admittedly, the case stands posted for trial which is to be commenced from 06.08.2021. At this juncture this petition has been moved by the 2[nd] accused to quash the proceedings against her in the case. 8. As mentioned earlier, by disposal of Crl.M.C. No.7833 of 2017, this Court has already concluded that there are materials to proceed with the case against her with the 1[st] accused. It appears that this Court after considering the entire facts involved in the light of the legal principle laid down in the decision in **Jos v.** **Subramanyan and another** (2015 (4) KHC 332) concluded that there are materials to proceed against this petitioner. Even after such a finding, this petitioner has again approached this Court with this petition to quash the final report submitted against her along with the 1[st] Crl.M.C.3130/2021 10 accused and also to quash the charge framed by the court on 27.07.2018 at the fag end when the case stands posted for trial. 9. No doubt, a close scrutiny of the material produced before the Court would clearly shows the accusation leveled against her has already considered in detail and the contention raised by her that no charge under Section 506(1) of IPC will lie against her in the case was discarded by this court and concluded that materials are available to attract an offence under Section 506(1) of IPC to be tried along with the 1[st] accused. But, again this application has been filed seeking the very same relief which could not be entertained at any cost. So also, even though the charge was framed as early as on 27.07.2018, it was not challenged before this Court at the appropriate time by this petitioner, but after two and a half years the petitioner has approached the court contending that she cannot Crl.M.C.3130/2021 11 be tried along with the 1[st] accused who is facing trial for offences under Sections 376, 377 and 506(1) of IPC. Such an argument cannot be accepted as this court had already found that there are materials to proceed with trial of the case against her for the offence under Section 506 (1)of IPC and specific charge was framed against her under Section 506(1)IPC along with the 1[st] accused. It is also to be noted that the learned Sessions Judge on 27.03.2021 has passed an order under Section 218 of Cr.P.C. to the effect that the charge against the petitioner cannot be split up and tried separately as requested by her. But the said order has not been challenged. The materials on record clearly shows that this petitioner has to face trial for an offence under Section 506(1) of IPC as it cannot be separately tried as requested by her. 10. While exercising the power under Section 482 Cr.P.C., the court has to act Crl.M.C.3130/2021 12 cautiously and each case will have to be judged on its own merits. The truthfulness of the prosecution allegation has to be ascertained in trial which is an exercise to be undertaken by the trial court at the appropriate stage. To sum up I find that this Crl.M.C. is without any merits and the petitioner is not entitled to get an order quashing the final report as well as the court charge as requested by the learned counsel for the petitioner. Moreover, now the case stands posted for trial and it is in fact scheduled to 06.08.2021 for examination of the witnesses. The 2[nd] respondent is the defacto complainant in the crime registered in the year 2013 and CW 1 in the Sessions Case pending as S.C. No. 56 of 2019. In view of the above said facts and circumstances, I find that the argument of the 2[nd] respondent that the petitioner has approached this court with the intention to delay the trial and disposal of the case of the year Crl.M.C.3130/2021 13 2013 appears to be true and correct. Therefore, this petition is only to be dismissed. As there is a direction from this Court to dispose of the matter within a time frame (W.P.(C) No.24561 of 2020), the court below shall take all endeavour to comply with the same. The petitioner is also directed to co-operate with the trial of the case. Accordingly, the reliefs sought for in this petition are declined and this petition is dismissed as stated above. Sd/- **SHIRCY V JUDGE** sb Crl.M.C.3130/2021 14 ## **APPENDIX** **ANNEXURE 1 : THE CERTIFIED COPY OF THE FINAL REPORT IN SC NO. 56/2019 PENDING BEFORE 1ST ADDITIONAL SESSIONS JUDGE, ERNAKULAM.** **ANNEXURE 2 : THE CERTIFIED COPY OF THE COURT CHARGE IN S.C. NO. 153/2016 OF THE ADDITIONAL SESSIONS COURT II (SPECIAL), KOTTAYAM.** **ANNEXURE 3 : THE CERTIFIED COPY OF THE ORDER IN CRL.M.P. NO. 415 OF 2021 IN S.C. NO. 56 OF 2019 OF THE HONOURABLE SESSIONS COURT, ERNAKULAM.**