Crl.M.C No. 4512/2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 11[TH] DAY OF OCTOBER 2021 / 19TH ASWINA, 1943 CRL.MC NO. 4512 OF 2021** **SC 160/2015 OF THE COURT OF (FAST TRACK) SPECIAL JUDGE, THRISSUR PETITIONER/ACCUSED** XXX BY ADVS. P.M.RAFIQ SRUTHY N. BHAT M.REVIKRISHNAN MITHA SUDHINDRAN POOJA PANKAJ RAHUL SUNIL ## **RESPONDENT/COMPLAINANT** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. PP SEENA.C THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.9.2021 , THE COURT ON 11.10.2021 DELIVERED THE FOLLOWING: Crl.M.C No. 4512/2021 2 ## ORDER 1. This criminal M.C has been filed to set aside the order dated 13/09/2021 of the fast Track Special Judge Thrissur in S.C No 160 of 2015 to the extend of rejecting the issue of summons to witnesses numbers 1 to 4 and 12 in annexure A schedule of witness preferred by the petitioner/accused. 2. Petitioner/accused (hereinafter be refereed as accused) stands indicted for the offence under section 376(2)(i) of the Indian Penal Code and section 6 read with section 5(m) of the protection of children from sexual offences act, 2012. Prosecution allegation is that petitioner committed aggravated sexual assault on the victim aged 4 years. The specific defence of the accused is that he has been falsely implicated by the family of the victim especially the grandfather who is on enimical terms with him since long. The parties are neighbours and according to him the long standing personal animosity led to the false implication of the accused in the above case. 3. In the impugned order which is produced as annexure-B, would show that accused has cited 15 witnesses in the witness schedule. Witness number one is the medical superintendent Crl.M.C No. 4512/2021 3 Elite Mission Hospital, Koorkkanchery. The witness has been asked to produce the medical records relating to the victim, her mother and grandmother and the purpose is to show that the mother and grandmother of the victim are having mental illness. It is found that the above aspect is not relevant. 4. Witness number two is Chairman Child Welfare Committee and the witness has been asked to produce the file relating to child welfare committee, Thrissur. It is found that the relevancy of the document is not stated in the witness schedule. 5. Witness number three is the Sheristadar Family Court, Thrissur. That witness has been asked to produce the original petitions of the case files relating to O.P. Nos.596/2016, 334/2016 and 335/2016. It is found that if the accused wants to rely upon those documents for any purpose, he has to apply and obtain certified copies of those documents. It is also found that original case files cannot be called for in this proceedings. 6. Witness number twelve Johny is mistakenly shown as Jyothi in the order. The request for issuing summons to witness No.12 is refused for the reason that he has been cited to prove the dispute and cases pending between CW5 and 10. Witness number five is the grandfather of the victim and the court is of the view that the dispute if any between witness number five Crl.M.C No. 4512/2021 4 and ten do not have any relevance in deciding this case. 7. According to the learned Counsel for the petitioner the main defence of the accused is that there is long standing enmity between the family of the victim and accused and that has lead to the false implication of the petitioner. 8. In **T.Nagappa v. Y.R.Muralidhar, (2008) 5 SCC 633)** , though in the context of a complaint initiated on the basis of a dishonour of a cheque, it was held that as to what should be the nature of defence evidence is not a matter which should be left only to the discretion of the court and it is the accused who knows how to prove his defence and the court, being the master of the proceedings must determine as to whether the application filed by the accused is bona fide or not or whether he thereby intends to bring on record a relevant material. 9. In **Kalyani Bhaskar v. Sampoornam (2007 2 SCC 258)** , it has been held that fair trail includes fair and proper opportunities allowed by law to prove his/her innocence that adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trail and it is essential that rules of procedure designed to ensure justice should be scrupulously followed. 10. In a recent decision **Antony Rosario Fernando and** Crl.M.C No. 4512/2021 5 ## **others v. State of Kerala (2021 1 KHC 430)** similar view has been expressed by this Court. 11. As per section 233 (3) CrPc if the accused applies for issue of any process for compelling the attendance of any witness or production of any document or thing the Judge shall issue such process unless he considers for reasons to be recorded that such applications should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. 12. In the impugned order the learned Special Judge is of the view that witnesses number one to four and twelve had been cited by the accused only to delay the proceeding. Whether that is legal and proper and whether any interference is required is the point for determination before this court. 13. Witness number one has been cited seeking to produce the treatment records of the victim girl and also that of the mother and grandmother of the victim. The reason stated is to prove that the case is falsely foisted and the mother and grandmother are undergoing treatment for mental illness. As has been rightly found by the learned Special Judge the mental illness of the mother or the grandmother is of no relevance as far as the present offence alleged against the petitioner is Crl.M.C No. 4512/2021 6 concerned. However it cannot be found at this stage that the treatment records of the victim girl is totally irrelevant. So an interference is required for issuing summons to witness number one for producing the records sought for pertaining to the victim. 14. Witness No.2 is the Chairman of Child Welfare Committee, Thrissur. He has been directed to produce the entire file, reports, other communications, complaint depositions etc., pertaining to case No.CWC/TSR/104/2014. Special Judge found that relevancy of that document has not been stated. Calling to produce the entire case file without stating any specific reason as rightly pointed out by the Special Judge cannot be allowed. Accused cannot be permitted to search out for records by calling the entire case records. 15. Witness number three Sheristadar Family Court has been cited to produce original petitions of the case files relating to O.P. Nos.596/2016, 334/2016 and 335/2016 filed against the mother of the victim to prove the mental illness of the mother of the victim and her grandmother. That is not a relevant factor as far as the case alleged against the petitioner is concerned. So the refusal to issue summons to witness No.3 does not warrant any interference. Crl.M.C No. 4512/2021 7 16. Witness number four has been cited to prove that the accused is undergoing treatment from 1997 onwards for serious ailments. As rightly contented by the learned Counsel to prove the very same aspect summons was issued to other Doctors witness No.5 to 11. Hence summons ought to have been issued to witness number four also. 17. As far as witness number twelve is concerned, according to the learned Council he has been cited to prove the enmity of the grandfather of the victim towards the petitioner/accused. Though the name of the witness is Johny, it is wrongly written as Jyothi in the impugned order. CW5 is said to be the grand father. CW10 said to have purchased property. True, how it will be relevant to the fact in issue is not clear. However, it is settled that nature of defence is not a matter which will be left only to the discretion of the Court and it is the accused who knows as to how to prove his defence. The fair trail includes fair and proper opportunities to prove the innocence by adducing evidence in support of the defence which is a valuable right and denial of the same would mean denial of fair trail. It is necessary that the rules of procedure prescribed under section 233(3) CrPc is to be scrupulously followed. 18. So, refusal of issue of summons by the Special Judge to Crl.M.C No. 4512/2021 8 witness No.1 in the aspect of production of treatment records pertaining to the victim girl and witness number four and twelve will cause miscarriage of justice since those witnesses have been cited by the petitioner/accused to substantiate the various defences that has been raised by him. 19. In the result Criminal MC allowed in part permitting to issue summons to witness No.1 to produce relevant records with respect to the victim girl and also to witness Nos.4 and 12. Sd/- M.R.Anitha, Judge ## Mrcs