Antony @ Anthoni S/o ShanmughAn v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941** ## **OP(Crl.).No. 4 of 2018** **AGAINST THE ORDER/JUDGMENT IN SC 471/2014 of ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) CRIME NO. 1700/2013 OF Palluruthy Police Station , Ernakulam** ## **PETITIONER/ACCUSED NO.1:** **ANTONY @ ANTHONI S/O SHANMUGHAN, AGED 39 YEARS, CHERIYAPARAMBIL HOUSE,BOSCO NAGAR, PULLAR, PALLURUTHI, KOCHI, ERNAKULAM DIST.** **BY ADVS. SRI.M.T.SURESHKUMAR SRI.R.RANJITH** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN.682031.** **BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12/9/2018, THE COURT ON 29/3/2019 PASSED THE FOLLOWING:** OP(Crl.) No.4/2018 2 ## **JUDGMENT** Petitioner is the first accused in Crime No.1700/2013 of Palluruthy police station for offences punishable under sections 323 and 376 IPC and under various provisions of POCSO Act. 2. The crux of the allegation, as discernible from the available records, is that the victim, who is a ten year old girl studying in the 5[th] standard, was allegedly sexually abused and harassed by the petitioner, who is her uncle, from her childhood, while she was studying in the third standard. This continued for long period. There is further allegation that, he committed the above act individually and along with two other accused. Pursuant to the complaint laid by the Child Line member, crime was registered and after investigation, final report was laid. According to the petitioner, pursuant to the final report, further investigation was ordered by the court below. The incident covered the period from March 2011 to June 2018. It is stated that, accused is her uncle. Pursuant to the further investigation ordered, three separate final reports were filed as Exts.P4, P5 and 6, pursuant to which SC Nos. 565/2016 , 471/2014 and SC No.566/2016 were registered. Contending that for a single offence, petitioner is called upon to face three prosecution and it causes substantial prejudice to him, he has approached this court with a prayer to quash Exts.P4, P5 and P6 final reports. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. OP(Crl.) No.4/2018 3 4. The premise on which the above final reports are attacked are that, the court below went wrong in ordering further investigation pursuant to the final report filed and relying on the authorities, it was contended by the learned counsel that, the court below did not have jurisdiction to order further investigation suo motu or at the instance of any party. It was also contended that the offence relates to a single transaction and three separate prosecution will cause prejudice to him. It was again contended that, even according to the prosecution, part of the incident happened even prior to 14/11/2012, on which day POCSO Act came into force, though he is called upon to face charge for offence under POCSO Act also. 5. Ext.P2 is the final report dated 17/10/2013 against all the accused in relation to acts committed during March 2011 to June 2013. A perusal of Ext.P4 final report shows that, it relates to the sexual abuse committed by the petitioner herein along with two other accused during the period March 2011 to March 2012. It is alleged that the petitioner sexually abused her at house bearing No. CC 19/256 and at the bed room of the petitioner herein. Ext.P5 shows that, crux of the allegation is that petitioner herein abused the girl at the house No. 19/256 and his bed room during the period from March 2012 to 13/11/2012. In Ext.P6, the allegation is that petitioner herein sexually abused the girl at house No. 19/256 and at his bed room during the period 14/11/2012 to June 2013. 6. The contention of the petitioner herein is that version spoken by CW1 victim and other material records indicate that all the incident OP(Crl.) No.4/2018 4 happened during a particular period and all the instances of sexual abuse relate to a single transaction. However, it has been split up into three final reports and three separate proceedings are initiated. It was further contended that, the statement of the victim do not disclose that she has referred to any specific period. It was also contended that in the above circumstances, charging the petitioner herein for a single transaction by three separate charge sheets will cause prejudice to him. 7. Essentially, the question relates to whether the entire incident of sexual abuse that transpired during a long period constitute a single series of transaction or interlinked to a single offence, both sides relied on several judicial pronouncement to buttress their contentions. ## 8. In **Emperor v. Ibrahim Khan ( ILR Volume XXXIII at page** **36)** , one person was charged with offence under section 409 IPC for having embezzled an aggregate sum on various dates. When this was challenged, Allahabad High Court held that, if the accused embezzled more than three separate specific items on specified dates, in the same capacity within the period of twelve months, he could under section 284 Cr.P.C.(old)be tried at one trial with respect to only three of such items. ## 9. In **Becharam Mukherji v. Emperor and Anr. (AIR 1944** **Cal.224)** , the issue was in relation to an allegation that accused played fraud on the defacto complainant, withdrew cash from her account on various dates and removed gold from her locker. The contention set up by the accused was that, theft of different things on different dates separated by considerable period can be treated as one theft on the OP(Crl.) No.4/2018 5 analogy of successive blows constituting one assault. Repelling this, it was held that if different charges for other offences could also be lumped up as a Rule there would have been no necessity for making any special provisions in respect of criminal breach of trust or dishonest misappropriation. It was held that various thefts or misappropriation were infact isolated and independent crimes, that success in one crime led the accused to commit another. So each constituted a separate offence. ## 10. In **Bawarilal Jhunhunwala and others and V.A.Thomson** ## **v. Union of India and another (AIR 1963 Supreme Court 1620),** the Hon'ble Apex Court held that under section 223 Cr.P.C.1898, for “every distinct offence” should have a different content from the expression 'every offence' or 'each offence'. A separate charge was liable to be framed for every distinct offence and not necessarily for each separate offence. It was held that distinct means “not identical”. It stress characterstics that distinguish, while the word 'separate' would stress the two things not being the same. It was clarified that two offences would be distinct if they be not in any way inter-related. It was a case wherein falsification of accounts and supply of inferior quality of goods. The accused embezzled huge amount by separate delivery of items on different dates. Constituting the whole incident as a single offence, it was held that cheating done was in pursuance of the conspiracy entered into between the various accused. In pursuance to the conspiracy, specified items were supplied over different period and the object of conspiracy was to obtain the full contract price from the OP(Crl.) No.4/2018 6 Government on supplying material inferior in quality on different dates. On this factual premise, it was concluded that the offence of cheating contemplated by the conspirator was one single offence. 11. In **Bhagat Singh v. The state and another(AIR 1952 Supreme Court 45)** explaining the factual matrix in that case, it was held that firing of single shot at two person constitute only one offence. 12. In **D.K.Chandra v. The State(AIR 1952 Bom.177)** , the question that arose was regarding criminal breach of trust in relation to a specified amount. The appellant was charged with four separate offences. Explaining the legal position, it was held that each of the transaction was separate, distinct and the four offences alleged against him did not arise within the same transaction. ## 13. In **State of W.B. v . Laisal Haque and another(AIR 1989** **Supreme Court 129),** the Supreme Court reiterated that section 218 Cr.P.C.embodied the general rule as to the trial of accused persons which provides for separate trial of each accused person for every distinct offence and was based on the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet. It was held that there must not be any doubt as to ' single act or series of acts' which constitutes the transaction, that is to say, there must not be any doubt as to the facts. ## 14. In **K.Manoj Reddy v. Commissioner of Police and Ors.** **(2008 Crl L.J.768),** allegation was that the accused with dishonest intention to cheat the customers collected deposits from several persons promising to register plots but failed to do so. It was held that OP(Crl.) No.4/2018 7 each of the written complaint by each complainant constituted a distinct offence and the accused was answerable for separate charges. 15. Explaining the principle of separate charge for distinct offence and separate trial, in **Velayudhan Pillai v. State of Kerala(2001 (3) KLT 416),** it was held that section 218 Cr.P.C.provided that there must be separate charges for each distinct offence and there shall be separate trial for each charge except cases covered under sections 219 to 221 and 223 of Cr.P.C. It was held that underlining principle behind the section was that accused should not be bewildered by facing many disconnected charges. ## 16. In **State of Bombay v. Umarsaheb Buransaheb Inamdar** **and others (AIR 1962 Supreme Court 1153)** , with reference to section 406 IPC, it was held that when the accused persons in pursuance of a criminal conspiracy committed breach of trust of a gross sum embezzled during each period, separate charge contravenes the proviso to section 222(2). ## 17. Bombay High Court in **Priya Shran Maharaj alias** ## **Yadavendra Parashar and others v. Stae of Maharashtra (1995** **KHC 3173)** held that in the case of accused who was charged with commission of five offences of rape, there was no proximity of time or place or unity for purpose and design or continuity of action and each act should be a different offence. The charge clubbing all the five acts of rape, was held to be illegal. 18. An appreciation of the facts in the light of above law shows OP(Crl.) No.4/2018 8 that, allegation covers three distinct periods. Individual incident that happened on each day cannot be segregated. However, the allegation of sexual abuse that transpired on various dates during each block period which constitute a distinct offence can form the subject matter of charge in the above circumstances. Hence, On that premise, attack on Exts.P4, P5 and P8 cannot be survive. 19. It is true that certain part of the incident allegedly happened even prior to bringing of the POCSO Act. However, the incidents spread over t the period even after the commencement of the POCSO Act. At least to that extent, the petitioner is liable for facing the prosecution. Essentially, this is a matter which can be taken up at the time of framing the charge. 20. Even though it was strenuously contended by the learned counsel for the petitioner that the court below went wrong in ordering further investigation, there is nothing on record to show that the court had ordered further investigation. It appears from the records that on Ext.P2, three separate final reports were filed. It does not constitute a further investigation to hold it as illegal. I find no reason to accept the contention so set up by the learned counsel for the petitioner. 21. On evaluation of the entire facts, I find no reason to quash the final reports laid by the investigating agency. Consequently, the original petition is dismissed. However, considering the fact that the incident happened long back and the age of the victim, I am inclined to direct the court below to take up the matter and dispose it of as expeditiously as possible within a OP(Crl.) No.4/2018 9 period of four months from the date of receipt of a copy of this judgment. **Sd/-** dpk **SUNIL THOMAS JUDGE** OP(Crl.) No.4/2018 10 ## **APPENDIX OF OP(Crl.) 4/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE FIRST INFORMATION REPORT DATED 9.7.2013 OF PALLURUTHI POLICE STATION. EXHIBIT P2 TRUE COPY OF THE FINAL REPORT DATED 17.10.2013. EXHIBIT P3 TRUE COPY OF THE REPORT DATED 9.7.2013 OF THE MEDICAL EXAMINATION OF THE VICTIM. EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES FINAL REPORT DATED PENDING AS SC NO.565 OF 2016 ADDITIONAL DISTRICT AND SESSIONS JUDGE (ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN) ERNAKULAM. EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES FINAL REPORT DATED PENDING AS SC NO.471 OF 2014 AFTER FURTHER INVESTIGATION ADDITIONAL DISTRICT AND SESSIONS JUDGE (ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN) ERNAKULAM. EXHIBIT P6 TRUE COPY OF RELEVANT PAGES FINAL REPORT DATED PENDING AS SC NO.566 OF 2016 ADDITIONAL DISTRICT AND SESSIONS JUDGE (ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN) ERNAKULAM. EXHIBIT P7 TRUE COPY OF THE STATEMENT OF CW1 BEFORE THE POLICE DATED 11.7.2013. EXHIBIT P8 TRUE COPY OF THE STATEMENT OF CW1 DATED 22.7.2013 EXHIBIT P9 TRUE COPY OF THE STATEMENT OF CW2 DATED 22.7.2013. EXHIBIT P10 STATEMENT RECORDED U/S 164 OF CR.PC OF CW1 DATED 30.7.2013.** OP(Crl.) No.4/2018 11