High Court of KeralaSingle Judge2019-06-18Disposed of

Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017

Case / Petition Number:CRL.M.C. Nos. 4997 & 8439 of 2017; WP(C). No. 39006 of 2017; B.A. No. 3425 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas
Judgment Date: 2019-06-18
Court Decision / Holding: All four cases are disposed of; bail granted to Abdul Rasheed with conditions; investigation to be completed within four months; no custodial interrogation; statements of the victim to be recorded in accordance with Juvenile Justice Act and POCSO Act; WP(C). No. 39006/2017 infructuous and closed; final report to be filed before the jurisdictional court.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

Abdul Samad
Sabeena Samad
Abdul Rasheed
Shereena Samad

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Sub Inspector of Police Chirayinkeezhu Police Station, Thiruvananthapuram
Rasheed
Child Welfare Committee, Thiruvananthapuram
SAKI represented by Program Officer

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Arun Babu

Counsels for Respondents

• Sri Saigi Jacob Palatty, Public Prosecutor
• Sri Prasun S.
• Sri P.V. Sreenijin

Case Synopsis & Summary

The four matters arise from Crime No. 604/2017 of Chirayinkeezhu Police Station, Thiruvananthapuram, for offences under IPC 376 and Sections 3, 4, 7 and 8 of the POCSO Act, 2012. The High Court had previously passed a detailed common order on 19.12.2017 in these petitions, directing that the investigation proceed with safeguards for the victim and ensuring compliance with the Juvenile Justice (Care and Protection of Children) Act, 2015 and the POCSO Act. The case centers on the alleged sexual abuse of an 18-year-old mentally challenged girl by a close relative, with conflicting statements recorded at police and Juvenile Justice proceedings. The father of the victim sought quashing, while the accused sought anticipatory bail; the State and police maintained that the investigation must continue to uncover the truth, and that the victim’s welfare required careful handling under statute. The court ultimately directed that the investigation be completed within four months, allowed bail to the accused with stringent conditions, and ordered that statements by the victim be recorded in accordance with the relevant juvenile justice and POCSO provisions. The writ petition WP(C).39006/2017 was found infructuous and closed; all four matters stood disposed of with directions for a fair investigation.

Provisions of Law Cited

Section 376 of IPCSections 3, 4, 7 and 8 of the Protection of Children from Sexual Offences Act, 2012Juvenile Justice (Care and Protection of Children) Act, 2015Protection of Children from Sexual Offences Act, 2012Section 164 Cr.P.C

Submissions & Arguments

Contentions of Appellants / Petitioners

Applicants contended that the proceedings should be quashed, arguing that the information given to the Child Welfare Committee led to Crime No. 604/2017, and that the victim’s earlier statements recorded during police investigation were later changed in 164 Cr.P.C. proceedings. They asserted that the allegations arose in a context of family disputes with a neighbour (Badarudeen) and civil litigation, and that the close relative of the victim exploited the situation to implicate the accused. They claimed that the victim had been in the care of her family, and that the Child Welfare Committee had allegedly been influenced; they urged that continuing investigation would cause further distress to the victim and family. They argued for quashing the criminal proceedings on grounds of lack of credible evidence, or alternatively for the Court to direct a swift, transparent closure if no legally actionable evidence emerges. They emphasised the need to protect the child’s welfare and privacy, to ensure fair treatment in a sensitive case, and to prevent harassment of the accused without due process. They sought quashing as the primary remedy and left open any other remedies under law for the petitioners.

Contentions of Respondents

Respondents argued that the investigation should not be stifled; the offences under IPC 376 and POCSO Act are serious and require thorough investigation. They contended that the victim’s statements were recorded as per the statutory procedures and that the subsequent 164 Cr.P.C. statement disowned the earlier version, but investigation should proceed to ascertain truth. They emphasised that quashing would hamper the search for truth and protect the minor; The State counsel urged allowing the Court to monitor the investigation and ensure that the accused does not tamper with witnesses or influence the victim, while ensuring no unnecessary harassment of the accused. They accepted bail with conditions to balance rights with the need to protect the victim. They requested the Court to direct fair and expeditious completion of the investigation and to file final report within 4 months with all due safeguards. They asserted that the Court’s orders must respect both the welfare of the victim and the due process. They asked for the case to be disposed in a manner that promotes public confidence in the justice system.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017 and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** ## **CRL.MC.NO.4997 OF 2017** **CRIME NO.604/2017 OF CHIRAYINKEEZHU POLICE STATION , THIRUVANANTHAPURAM** ## **PETITIONERS/PARENTS OF THE ALLEGED VICTIM IN THE CRIME:** - **1 ABDUL SAMAD AGED 50, S/O. MUHAMMED SALI, KATTUVILA, KRISHNAPURAM, PERUMKUZHY, THIRUVANANTHAPURAM.** **2 SABEENA SAMAD AGED 45, W/O. SAMAD, KATTUVILA, KRISHNAPURAM, PERUMKUZHY, THIRUVANANTHAPURAM.** **BY ADV. SRI.ARUN BABU** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNANKULAM.** - **2 SUB INSPECTOR OF POLICE CHIRAYINKEEZHU POLICE STATION, THIRUVANANTHAPURAM DISTRICT.** - **3 RASHEED** **AGED 45, PERUMKUZHI, THIRUVANANTHAPURAM RURAL, KERALA (NAME AND ADDRESS OF THE ACCUSED PERSON AS STATED IN THE ANNEXURE-A1 FIR)** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.06.2019, ALONG WITH BAIL APPL.NO.3425/2017, CRL.MC.NO.8439/2017 & WP(C).NO.39006/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** # **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** # **BAIL APPL.NO.3425 OF 2017** **CRIME NO.604/2017 OF CHIRAYINKEEZHU POLICE STATION , THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** **ABDUL RASHEED, AGED 78, S/O. IBRAHIM KUNJU, KAIPPALLY, KRISHNAPURAM, PERUMKUZHY P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.PRASUN S., SRI.P.V.SREENIJIN** ## **COMPLAINANT/STATE:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA - 682 031.**| |**2**|**THE S.I. OF POLICE**| ||**CHIRAYANKEEZHU POLICE STATION,**| ||**THIRUVANANTHAPURAM - 695 001.**| **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.06.2019, ALONG WITH CRL.MC.NO.8439/2017, WP(C).NO.39006/2017 & CRL.MC.NO.4997/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** ## **CRL.MC.NO.8439 OF 2017** **CRIME NO.604/2017 OF CHIRAYINKEEZHU POLICE STATION , THIRUVANANTHAPURAM** ## **PETITIONER:** **ABDUL RASHEED, AGED 78 YEARS, S/O. IBRAHIM KUNJU, KAIPPALLY, KRISHNAPURAM, PERUMKUZHY P.O., THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.PRASUN.S, SRI.P.V.SREENIJIN** ## **- RESPONDENT/COMPLAINANT STATE:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031, REPRESENTING THE SUB-INSPECTOR OF POLICE, CHIRAYINKEEZHU POLICE STATION, THIRUVANANTHAPURAM. *ADDL. 2 CHILD WELFARE COMMITTEE, THIRUVANANTHAPURAM.** **BY PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.06.2019, ALONG WITH WP(C).NO.39006/2017, CRL.MC.NO.4997/2017 & BAIL APPL.NO.3425/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941 WP(C).No.39006 of 2017** ## **PETITIONERS:** |**1**|**ABDUL SAMAD,**| |---|---| ||**AGED 50, S/O. MUHAMMED SALI, KATTUVILA,**| ||**KRISHNAPURAM,PERUMKUZHY, THIRUVANANTHAPURAM.**| |**2**|**SHEREENA SAMAD,**| ||**D/O. SAMAD, AGED 18, KATTUVILA,**| ||**KRISHNAPURAM,PERUMKUZHY, THIRUVANANTHAPURAM.**| ||**BY ADV. SRI.ARUN BABU**| ## **RESPONDENTS:** |**1**|**SUB INSPECTOR OF POLICE**| |---|---| ||**CHIRAYINKEEZHU POLICE STATION,**| ||**THIRUVANANTHPURAM - 695 304.**| |**2**|**SAKHI**| ||**HOUSE NO.40, CHEMBAKA NAGAR, BAKERY JUNCTION,**| ||**THIRUVANANTHAPURAM - 6695 014,**| ||**REPRESENTED BY PROGRAM OFFICER.**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.06.2019, ALONG WITH CRL.MC.NO.8439/2017, CRL.MC.NO.4997/2017 & BAIL APPL.NO.3425/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ----------------------------------------------- Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017 -----------------------------------------------Dated this the 18[th] day of June, 2019 ## O R D E R All the above 4 cases arise from Crime No.604/2017 of Chirayinkeezhu Police Station, which has been registered for offences punishable under Sec.376 of the IPC r/w Secs.3, 4, 7 & 8 of the POCSO Act, 2012. 2. This Court has already passed a detailed common order dated 19.12.2017 in these 4 cases, and for knowing the nature of the facts and circumstances in these cases, it will be profitable to refer to the said detailed common order dated 19.12.2017 rendered by this Court in these 4 cases, which reads as follows: _“ All the above cases arise from Crime No.604 of 2017 of Chirayinkeezhu Police Station for offences punishable under sections 376 of the Indian Penal Code and sections 3, 4, 7 and 8 of the Protection of Children from Sexual Offences Act, 2012._ _2. The crux of the allegation was that a 18 year old mentally challenged girl was sexually abused by the accused, who is an aged person and a close relative of the victim. The legal proceedings were set in motion on the basis of an information conveyed to the Child Welfare Committee, which got the statement of the victim recorded. Crime was_ Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017 ..6.. _accordingly registered. In the meanwhile, the father of the victim moved this Court in writ jurisdiction seeking appropriate reliefs for a direction to the Child Welfare Committee, on an allegation that the Child Welfare Committee had forcefully taken away the victim from his custody. Accordingly, victim was produced in Court before the Division Bench and Division Bench granted interim custody of the child to the father. Thereafter, by order dated 28.4.2017, it was directed that, if the victim's statement was to be recorded, it shall be recorded in the manner provided under the Juvenile Justice (Care and Protection of Children) Act, 2015, the Protection of Children from Sexual Offences Act, 2012 and the rules framed thereunder. Writ petition is stated to have been disposed of thereafter. It appears that, the victim had given statement to the police originally stating that, she was sexually abused by the accused. Pursuant to the directions of the Division bench, section 164 Cr.P.C. statement of the victim was recorded, where she completely disowned the earlier allegation. The father along with the mother have approached this Court to quash the criminal proceedings by filing Crl.M.C.No.4997 of 2017. In the meanwhile, on an allegation that non governmental agencies are also attempting to forcefully take away the child and to get the statements recorded, father and the victim have filed WP(C).No.39006 of 2017. Accused has approached this Court seeking anticipatory bail by filing B.A.No.3425 of 2017. Crl.M.C.No.8439 of 2017 is filed by the accused with a prayer to quash the criminal proceedings._ _3. The parents have a definite case that, they are not in good terms with one Badarudeen, who is a close relative and a neighbour. All of them reside in different houses in adjoining property, which are lying contiguous. It is alleged that a civil suit is pending against Badarudeen and certain other disputes regarding the return of gold ornaments were also pending before the police, it is submitted by the learned counsel for the parents. Hence, they contend that Badarudeen has falsely initiated proceedings implicating the accused. It seems that the wife and daughter of Badarudeen have given statement to the police indicating that they have direct knowledge regarding the sexual abuse of the girl._ _4. Learned Public Prosecutor vehemently denying the above allegations contended that since the father was abroad and the mother, who was residing along with the victim, was_ Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017 ..7.. _not informed about the incident because of the threat of the accused, the victim sought asylum in neighbours house and they had to intervene._ _5. In this scenario with divergent contention, the truth has necessarily to be found out. Investigation cannot also to be stalled. Having considered this, I am inclined to permit the investigation to go ahead. However, at the same time, to preserve the interest of the accused as well as the anxiety of the parents raised by them, I am inclined to direct that the accused shall not be arrested till the next posting date. However, he shall completely co-operate with the investigation and on a direction by the investigating officer, shall appear before the investigating officer, undergo interrogation and shall also undergo medical examination which are required. Learned counsel for the accused also fairly agreed for this. In the light of the above directions, child shall not been called to the police station and in case, statement of the victim is to be further taken, it shall strictly be in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Protection of Children from Sexual Offences Act, 2012 and the rules framed thereunder. Post all the cases on 10.01.2018 awaiting further instructions.”_ 3. After hearing both sides it appears that, pursuant to the directions issued by this Court, the accused (petitioner in Crl.M.C. No. 8439/2017 & B.A.No.3425/2017) has co-operated with the Investigating Officer and has made himself available for interrogation process. Therefore at this distance of time, the investigating agency has no case that the petitioner has not co-operated with the investigating process, or has in any manner hampered with the investigation. Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017 ..8.. 4. The prayers sought for in Crl.M.C. No. 4997/2017 (filed by the parents of the victim) and Crl.M.C. No. 8439/2017 (filed by the accused) are for quashment of the impugned criminal proceedings. The matter is even now pending investigation. This Court is of the view that, the interest of justice would be advanced if the investigating agency is permitted to complete the investigation process, and file the final report, and if the abovesaid parties have any grievances thereto in the manner known to law, they could certainly work out their remedies in the manner known to law, and their contentions in that regard raised in these matters are left open. At this distance of time, this Court is of the view that, there is no necessity for any custodial interrogation of the accused. However in case the Investigating Officer requires the accused for any further investigation process, he should fully co-operate in that regard. 5. The prayers in WP(C) No. 39006/2017 has also become practically infructuous. It is also brought to the notice of this Court, that the victim child is now in custody of her parents. Accordingly, it is ordered in B.A. No. 3425/2017, that in the event Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017 ..9.. of the petitioner being arrested in relation to the abovesaid crime, then he shall be released on bail on his executing bond for Rs.40,000/- and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the Investigating Officer concerned. 6. However the grant of bail will be subject to following conditions:- - i. _The petitioner shall report before the Investigating Officer as and when required in that connection._ - _ii. The petitioner shall fully co-operate with the investigating officer if he wants to elicit any further information. However it is made clear, that the Investigating Officer should not unnecessarily harass the petitioner under that guise._ - _iii. The petitioner shall not involve in any criminal offences of similar nature._ - _iv. The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _v. The petitioner shall not go or visit anywhere near the residence or educational institution of the victim until the conclusion of trial._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017 ..10.. 7. Further it is ordered in Crl.M.C. Nos. 4997 & 8439 of 2017 that, the Investigating Officer will take necessary steps to take the matter to its logical conclusion, and will conduct a fair and dispassionate investigation, with the main objective to ferret out the unvarnished truth of the matter, and the Investigating Officer shall not proceed on incorrect or improper lines, so as to unnecessarily and incorrectly implicate the accused. The Investigating Officer should conduct the investigation in a fair and proper manner so as to elicit maximum confidence of the public in the efficacy and fairness of the investigation, so that it will not give roof for any complaints. The Investigating Officer will ensure that that investigation is completed in all aspects within 4 months from the date of receipt of a certified copy of this judgment, so as to immediately file the final report in the matter before the jurisdiction Court concerned. If the petitioners in Crl.M.C. Nos. 4997 & 8439 of 2017 have any legally justiciable grievances in respect of the abovesaid final report, then they will be at liberty to work out their remedies in accordance with law, and all their contentions raised in these proceedings are left open to be raised Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017 **==> picture [28 x 7] intentionally omitted <==** and decided in any such appropriate proceedings if so required and warranted in future. As already mentioned herein above, the matter in WP(C). No. 39006/2017 is practically infructuous, and the same is only to be closed accordingly. With these observations and directions, the above cases will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017 ..12.. ## **APPENDIX OF Crl.MC 4997/2017** **PETITIONER'S EXHIBITS:** **ANNEXURE A1** **THE CERTIFIED COPY OF THE FIR IN CRIME NO.604/2017 OF CHIRAYINKEEZHU POLICE STATION DATED 25/04/2017.** **ANNEXURE A2 THE CERTIFIED COPY OF THE FIR IN CRIME NO.577/2017 DATED 17/04/2017 OF THE POOJAPPURA POLICE STATION.** **ANNEXURE A3 THE TRUE COPY OF THE ORDER DATED 25/04/2017 IN W.P.(CRL.) 138/2017** **ANNEXURE A4** **THE TRUE COPY OF THE ORDER DATED 28/4/2017 IN W.P.(CRL.) 138/2017** **ANNEXURE A5 THE TRUE COPY OF THE CERTIFICATE DATED 10/11/2010 ISSUED BY THE DEPARTMENT OF HEALTH SERVICE.** Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017 ..13.. ## **APPENDIX OF Crl.MC 8439/2017** **PETITIONER'S EXHIBITS:** **ANNEXURE A1** **THE PHOTOCOPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 0604 OF 2017 OF CHIRAYINKEEZHU POLICE STATION.** **ANNEXURE A2 THE PHOTOCOPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 0577 OF 2017 OF POOJAPPURA POLICE STATION.** **ANNEXURE A3 THE PHOTOCOPY OF THE INTERIM ORDER DATED 25.04.2017 IN W.P.(CRL.) NO. 138 OF 2017 OF THIS HONOURABLE COURT.** **ANNEXURE A4 THE PHOTOCOPY OF THE INTERIM ORDER DATED 28.04.2017 IN W.P.(CRL.) NO. 138 OF 2017 OF THIS HONOURABLE COURT.** **ANNEXURE A5** **THE PHOTOCOPY OF THE CERTIFICATE DATED 10.11.2010 ISSUED BY THE DEPARTMENT OF HEALTH SERVICES WITH RESPECT TO THE ALLEGED VICTIM IN THIS CASE.** **ANNEXURE A6 THE PHOTOCOPY OF THE REPORT DATED 07.10.2012 ISSUED FROM THE MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM, WITH RESPECT TO THE PETITIONER.** **ANNEXURE A7** **THE DISCHARGE SUMMARY DATED 13.04.2017 ISSUED FROM THE ARAVIND EYE HOSPITAL WITH RESPECT TO THE PETITIONER.** Crl.M.C. Nos. 4997 & 8439 of 2017, WP(C). No. 39006 of 2017 & B.A. No. 3425 of 2017 ..14.. ## **APPENDIX OF WP(C).NO.39006/2017** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1. THE TRUE COPY OF THE ORDER DATED 25.04.2017 IN W.P.(CRL).138/2017 EXHIBIT P2. THE TRUE COPY OF THE ORDER DATED 28.04.2017 IN W.P.(CRL).138/2017** **EXHIBIT P3.** **THE TRUE COPY OF THE APPLICATION, ALONG WITH THE POSTAL RECEIPT, SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT ON 01.12.2017.**