JIBIN AGED 25 YEARS S/O SAJI v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942** ## **Crl.MC.No.8060 OF 2018(F)** **SC 16/2018 OF SPECIAL COURT UNDER POCSO ACT, WAYANAD CRIME NO.359/2017 OF Ambalavayal Police Station , Wayanad** ## **PETITIONER/3RD ACCUSED:** **JIBIN AGED 25 YEARS S/O.SAJI, PUDHUPARAMBIL HOUSE, NATHANKUNNI P.O., THOMMATUCHAL, AMBALAVAYAL, WAYNAD DISTRICT.** **BY ADVS. SRI.JIKKU SEBAN GEORGE SRI.ARUN AJAY SHANKAR** ## **RESPONDENTS/STATE:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA,**| ||**KOCHI - 682 031.**| |**2**|**DEPUTY SUPERINTENDENT OF POLICE**| ||**SMS WAYANAD, MANANTHAVADY,**| ||**WAYNAD - 670 645.**| |**3**|**STATION HOUSE OFFICER**| ||**AMBALAVAYAL POLICE STATION,**| ||**AMBALAVAYAL,**| ||**WAYNAD DISTRICT - 673 593.**| Crl.M.C No. 8060 of 2018 2 **4 GOVINDHAN S/O VELLI, MALAYACHAMKOLLI PANIYA COLONY, NATHAMKUNI P.O THOMATUCHAAL AMSOM, AMBALAVAYAL, WAYANAD - 673577 KERALA *(ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 22-10-2020 IN CRL.M.A NO.1/2020)** **R1-3 BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.C.K.SURESH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 8060 of 2018 3 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 8060 of 2018 -----------------------------------Dated this the 24[th ] day of November, 2020 ## **O R D E R** The prayers in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of Cr.PC are as follows: - _“(i) Quash Anx.A1 FIR and Anx.A4 final report in crime No.359/2017 of Ambalavayal Police Station, Wayanad District, now pending as S.C No.16/2018 before Additional District and Session Court Adhoc-I, Kalpetta [Special court under POCSO Act], and all further proceedings against the petitioner._ - _(ii) Pass any appropriate order as deemed just and proper.”_ 2. Heard Sri.Jikku Seban George, learned counsel appearing for the petitioner (A3) and Sri.C.K.Suresh, learned Public Prosecutor appearing for official respondents 1 to 3. Though notice has been duly served on additional R4 (father of the victim), as can be seen from the report dated 05-11-2020 submitted by the Police Officer concerned, the said party has not entered appearance so far, though this Court had adjourned the case on the previous occasions to ascertain as to whether the said party would enter appearance in the meanwhile. 3. The petitioner herein has been arrayed as an additional Crl.M.C No. 8060 of 2018 4 accused No.3 among the three accused in the instant Anx.1 FIR in Crime No.359/2017 of Ambalavayal Police Station, Wayanad District, which was registered for offences punishable under Secs.341, 447, 506, 323, 354(A)(1)(i) read with Sec.34 of the IPC and Secs.3(1)(w)(i), 3(2)(va) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act as amended in 2015 and Sec.8 read with Sec.7 of the Protection of Children from Sexual Offences (POCSO) Act, 2011, on the basis of the first information statement given by the victim (who is the daughter of the 4[th] respondent) on 21-11-2017 in respect of the alleged incidents which had happened on 20-11-2017 at about 9.30 p.m in the night. The petitioner herein was not arrayed as the accused in Anx.1 FIR earlier and he was subsequently arrayed as an additional accused No.3 in the said crime consequent to an additional report submitted by the Investigating Officer before the competent criminal court. 4. The police after investigation has filed the impugned Anx.A4 final report/charge sheet in Anx.A1 crime No.359/2017 of Ambalavayal Police Station, which has now led to the pendency of Sessions Case, S.C No.16/2018 on the file of the First Additional Crl.M.C No. 8060 of 2018 5 Sessions Court, notified to deal with POCSO cases, Kalpettta. 5. The brief of the allegations in Anx.1 FIR is that, on 20-112017 at about 9.30 p.m, the minor victim girl, then aged about 15 years (who is the daughter of the R4 herein) was dragged to a shop by A1 (Vishnu) and that A1 had tied her hand from behind and when the victim raised hue and cry, One Jithin (A2) had also come to the said shop and that thereafter Vishnu (A1) had fled from the scene and then Jithin (A2) had also sexually assaulted the girl by kissing her and thereupon the father and mother of the victim had come to the scene and the victim’s father had told the victim’s brother to go to the house of A2 (Jithin) and bring Jithin's parents to the scene of occurrence and hearing this, the parents of A2 as well as the petitioner, who is the brother of A2, had come to the scene. It appears that by that time the victim girl was taken to the hospital. That on such arrival of the parents of A2 and the petitioner, who is the brother of A2, at the scene of occurrence there occurred some commotion and scuffles and that presumably on the premise that the petitioner’s brother is being unlawfully detained etc, there arose certain heated arguments and the petitioner, who is the elder brother Crl.M.C No. 8060 of 2018 6 of A2, had slapped on the face of the victim’s father, etc. It will be profitable to refer to the top portion of the internal page 10 of Anx.4 Final report/charge sheet, which reads as follows: (see page No.35 of the paper book of this Crl.M.C). "…. TV അനനയയകയരരയയ യതയടടടതടള വലനമയടയട വവടരൽ കയണയൻ പ�യയര രയതതര 9.30 മണരപയയയട വവടരപലക മടങര വരയവ അനനകയരരയടയട വവട� മടറത അതരതകമരച� കയറര �ടരക ജയതര �ടരക വർഗതരൽ യ�ടയത ത�തരകളരൽ ഒനയ) ത�തര വയയ രണഅനനയയകയരരയടയട യ�യതരപരടരചകയ�) �ടറകരപലക- തരരരച- യവച- �രടരച- വലരച- ഒനയ) ത�തരയടയട കടയരൽ യകയണ- പ�യയതയയട), കടയരൽ എതരയപപയൾ രണയ) ത�തര അവരയടയയതരയതയയട) ഒനയ) ത�തര അനനയയകയരരയയ �രടരചനരലതകരടതരയതയയട) അനനയയകയരര ഒച എടടതപപയൾ രണയ) ത�തര യകയനടകളയടയമനഭവഷണരയപടടതരയതയയട), ഈ സമയ) അനനകയരരയടയട പകയളനരയരൽ നരനട) ഒചപയട പകടപപയൾ ഒനയ) ത�തര , ഓടരപപയയതയയട) അപപയൾ രണയ) ത�തര അനനയയകയരരയടയട കഴടതരന കടതരപരടരചതയയട), മയറത- �രടരച- ചടണത ഉമ യവചതയയട), �ടറതട നരന- ഒചപയടട) ബഹളവട) പകടപപയൾ അനനയയകയരരയയ കടയരയല ഡസകരനടരയരപലക- രണയ) ത�തര വലരചരടടകയട) യചയ�കവഴര ഒനട) രണട) ത�തരകൾ o...” അനനയയകയരരയയ ലല)ഗവക കപയറ) യചയതതയയട For the purpose of easy understanding of the allegations, it may be pertinent to bifurcate the incidents in relation to A1 & A2 and the incidents in relation to the petitioner (A3) into two parts. "….. അനനയയകയരരയടയട അചനട) പകയളനരകയരട) വനപപയൾ രണയ) ത�തര ഓടരപപയകയൻ പനയകരയതയയട) രണയ) ത�തരയടയട അചയനയട) അമയയയട), പചടയനയട) പകയളനരകയർ സ)ഭവസലപതക- വരളരച� വരടതരയതയയട) രണയ) ത�തരയടയട പചടൻ ജരബരൻ വനഅനനകയരരയയയട അചയനയട) മറ�) അടരചതയയട) ജരബരനയറ ലകയകയണ- അനനയയകയരരയടയട അചനയറ രടതDക മയല യ�യടരയതയയട) മറ�) യവളരവയയരട�ണ-. ആകയയൽ 341, 447, 506, 354A(I)(i), ത�തരകൾ ഇനനൻ ശരക നരയമ) 323, 34 എനരവ ത�കയരവട) Sec.8 r/w 7 of POCSO Act ത�കയരവട)Sec.3(2)(va) of SC/ST POA amendment Act, 2015 .” ത�കയരവട) ശരകയർഹമയയ കടറ) യചയതരരരകടനട എന- Crl.M.C No. 8060 of 2018 7 6. A reading of the abovesaid allegations would make it clear that, the petitioner was nowhere near the scene of occurrence that the alleged incidents had transpired relating to the alleged involvement of A1 & A2 _vis-a-vis_ , the minor victim girl. When A2 had reached the scene of occurrence, and after A1 had fled the scene, A2 is said to have sexually assaulted the girl by kissing her etc, and hear her cry her father and mother etc, had come to the scene of occurrence and sensing the trouble the father of the victim girl had told the brother of the victim girl to inform the parents of A2 to come to the place of occurrence. It appears that A2 and A3 and their parents are living in the immediate neighbourhood of the victim girl and her parents. 7. On being queried, learned Prosecutor on the basis of the details in the case diary files has stated with precision that going by the version of the victim girl in her Sec.161 Cr.PC statement and subsequent statement given under Sec.164 of the Cr.PC before the learned Magistrate, by that time the girl was taken to the hospital and that it indicates that the girl was not present at the time when the petitioner (A3), who is the elder brother of A2 had come to the scene along with his parents, when they got the news. On reaching the Crl.M.C No. 8060 of 2018 8 scene, it appears that there arose some disputes between the petitioner (A3), who is the elder brother of A2, with the victim’s father in the commotion presumably, on the premise that the petitioner may have felt that his younger brother (A2) was unnecessarily detained etc. Thereupon the petitioner (A3) is said to have slapped on the face of the 4[th] respondent (victim girl’s father) and that thereby he has committed the offence punishable under Sec.323 of the IPC. The offence as per Sec.323 of the IPC is one of the offences which is included in the schedule appended to the SC/ST (POA) Act, 1989 as amened and hence the offence as envisaged in terms of Sec.3(2)(va)of the SC/ST (POA) Act, 1989 as amened will also come into play. Hence, the basic allegations as against the petitioner (A3) stands on a different footing from that as against A1 & A2. The offences alleged as against the petitioner (A3) are those which are punishable in terms of Sec.323 read with Sec.3(2)(va) of the SC/ST (POA) Act, 1989. None of the other offences disclosed in Anx.1 FIR and Anx.A4 final report can be pressed into service as against the petitioner going by the admitted case of the prosecution. That apart, the victim as far as the case to the extent, it deals with Crl.M.C No. 8060 of 2018 9 involvement of A1 & A2, is the minor girl, who is the daughter of R4 herein, whereas the victim of the crime as far as the involvement of the petitioner herein (A3) is R4 and not the minor girl. The prosecution does not have any case that the petitioner has in any manner involved himself in the commission of any other offences including the offences as per the POCSO Act. All the other offences are directed mainly and exclusively as against A1 & A2 and not as against A3. 8. Therefore, in the light of these aspects, there is a strong force in the contention of the petitioner that the incidents involving in A1 & A2 on the one hand and the incidents involving the petitioner (A3) are rather two unconnected incidents, which may not have any direct nexus by way of proximity of time, community of criminal intention or continuity of action and purpose. 9. Sri.C.K.Suresh, learned Prosecutor has raised a contention that it is not necessary that the acts should all have been committed on the same occasion but that it is sufficient that though separated by distinct interval of time, they are closely connected by continuity of purpose or progressive action towards the single object. Crl.M.C No. 8060 of 2018 10 10. As indicated herein above, on being queried Sri.C.K.Suresh, learned Public Prosecutor has fairly submitted the correct factual aspects as disclosed in the C.D files in this case as dealt with herein above. A reading of the relevant allegations has given in the top portion of internal page No.10 of Anx.4 Final report/charge sheet, would also clearly show that, the incidents in respect of the involvement of A1 & A2 would stand on a entirely different footing compared to the incidents dealing with the involvement of petitioner herein (A3). Both the family members of the victim as well as the family members of A2 & A3 are stated to live in the immediate neighbourhood. After hearing the hue and cry of the victim after the first incident, her parents had arrived at the scene and thereupon R4, who is the father of the victim had told the brother of the victim to inform the parents of A2 and asked them to come into the scene of occurrence presumably to resolve the commotion. By that time before the parents of A2 and the petitioner, who is the elder brother of A2, had reached the scene of occurrence, it appears that the victim girl was by then taken to the hospital. After their arrival to the scene, it appears that some disputes and heated arguments may have taken Crl.M.C No. 8060 of 2018 11 place between the petitioner herein (A3) and the family members of the victim and that the allegation is that, the petitioner had then slapped on the face of the R4, who is the father of the abovesaid minor girl. 11. The leaned Prosecutor would point out that since the parties are living in the neighbourhood, the petitioner (A3) should be imputed with the knowledge that R4 belongs to scheduled caste community and that though the substantive offence alleged against him is as per Sec.323 of the IPC, the offence as envisaged in Sec.3(2) (va) of the SC/ST (POA) Act, 1989 as amended would also come into play. 12. Having regard to the factual aspects as disclosed in the impugned prosecution materials and the C.D files, it cannot be held that the two incidents are closely connected by continuity of purpose and progressive action towards a single common objective. From the totality of the facts and circumstances of the case, it is clearly shows that before the parents of A2 and petitioner, who is the brother of A2 had come into the scene of occurrence, the victim girl was taken to the hospital and after their arrival, commotion has taken place again Crl.M.C No. 8060 of 2018 12 which led to the alleged incident of the petitioner slapping on the face of R4 possibly on account of altercations and heated arguments, etc. Therefore in the totality of the facts and circumstances of the case, it cannot be said that the petitioner had any involvement in respect of the offences said to have been committed by A1 & A2, more particularly, the POCSO offences. Hence it cannot be said that the two incidents are closely connected by continuity of purpose or progressive action towards the achievement of single or common objective. 13. Hence this Court is of the view that, the two incidents narrated hereinabove one in respect of the involvement of A1 & A2 and the latter in respect of the involvement of the petitioner (A3) cannot be said to be having any connection by way of nexus by proximity of time, community in criminal intention or continuity of action or purpose. Further, since serious offence as per the POCSO Act are disclosed in a case like this, the counsel for the petitioner is right in contending that the petitioner may suffer prejudice on account of being jointly tried in respect of the involvement of the other two accused persons on account of their involvement in Crl.M.C No. 8060 of 2018 13 separate incidents. That apart, going by the classification made in Part-I of the schedule to the Cr.P.C the offence as per Sec.323 of the IPC is non-cognizable offence and it is bailable. Therefore, as held by this court in decisions as in _**Jafar Sadhik Thangal v. State of Kerala**_ (2020) 1 KLT 707] in a case like this the consequential offence as per Sec.3(2)(va) of the SC/ST (POA) Act will also be noncognizable and bailable. Hence the police does not have jurisdiction to straight away register FIR and then to register a crime for investigation in terms of Sec.154 of the Cr.PC as that is permissible only if one of the offence involved is cognizable offence. Since both the offences alleged against the petitioner viz. Sec.323 of the IPC and Sec.3(2)(va) of the abovesaid Act are non-cognizable, the victim may have a remedy of either filing private criminal complaint in terms of Sec.190 read with Sec.200 of the Cr.PC before the competent criminal court. Otherwise the police may have to follow that mandatory procedure as envisaged in Sec.155 of the Cr.PC, which deals with information as to non-cognizable cases and as to the modality of the commencing investigation of such cases. Section 3(2)(va) of SC/ST (POA) Act reads as follows: ## _**“3. Punishments for offences of atrocities:-**_ Crl.M.C No. 8060 of 2018 14 - _(2)Whoever, not being a member of a Scheduled Caste or Schedule Tribe:-_ - _(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine.”_ ## Section 155 of the Cr.PC reads as follows: ## _**155. Information as to non- cognizable cases and investigation of such cases.**_ - (1 ) _When information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate._ - (2) _No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial._ - (3) _Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case._ - (4) _Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable._ ## 14. Sri.C.K.Suresh, learned Public Prosecutor has submitted on the basis of instructions that the 4[th] respondent had contacted the Investigating Officer and had apprised him that he is not in a position to enter appearance before this Court through counsel, but that he is seriously interested to prosecute the case further even in respect of Crl.M.C No. 8060 of 2018 15 the petitioner herein (A3). As indicated herein above, it is for the respondents either to follow the route of private criminal complaint in terms of Sec.190 read with Sec.200 of the Cr.PC or to act in accordance with the mandatory provisions contained in Sec.155 of the Cr.PC, so as to secure necessary permission from the competent criminal court for investigation of a non-cognizable case and then proceed and finalise the matter in accordance with law. 15. The upshot of the above discussion is that, the registration of the instant Anx.1 FIR in crime No.359/2017 of Ambalavayal Police Station, Wayanad District and the submission of the impugned Anx.4 Final report/charge sheet in the said crime and the institution of the Sessions Case to the limited extent it is directed as against the petitioner herein (A3) is illegal and ultra vires and would require interdiction at the hands of this Court. 16. In that view of the matter it is ordered that, the impugned Anx.4 Final report/charge sheet filed in the crime No.359/2017 of Amabalavayal Police Station, which has led to the pendency of Sessions Case S.C No.16/2018 on the file of the First Additional Sessions Court, notified to deal with POCSO cases, Kalpetta, Crl.M.C No. 8060 of 2018 16 Wayanad District to the limited extent, it is directed as against the petitioner herein (A3) and all consequential proceedings arising therefrom as against the petitioner herein (A3) will stand quashed and set aside. However, the respondents will be at liberty to proceed further with the matter to the extent the case deals with the involvement of the petitioner herein (A3) as indicated herein above. Further it is ordered that, the case as against the other accused concerned (A1 & A2) pursuant to Anx.A4 Final report/charge sheet which has led to the pendency of the abovesaid Sessions Case as against them may proceed in accordance with law, and untrammelled and uninfluenced in any manner by the observations and findings made by this court herein above. 17. Needless to say, if the respondents set in motion appropriate proceedings as against the petitioner herein (A3) in accordance with law, then those proceedings may also be initiated and finalised in accordance with law and the merits of such adjudication will be untrammelled and uninfluenced in any manner by the observations and findings made by this Court herein above. This Court has made the abovesaid findings and orders in this order Crl.M.C No. 8060 of 2018 17 only for the limited perspective to decide as to whether the case to the limited extent it involves the involvement of the petitioner herein (A3) would require interdiction. 18. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the First Additional Sessions Court, notified to deal with POCSO cases, Kalpetta, Wayanad District, who is dealing with S.C No.16/2018 for necessary information. 19. The Registry will forward a copy of this order to R4 herein 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. 8060 of 2018 18 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE NO.1 CERTIFIED COPY OF THE FIR IN CRIME NO.359/2017 OF AMBALAVYAL POLICE STATION, WAYANAD DISTRICT. ANNEXURE NO.2 TRUE COPY OF THE S.161 STATEMENTS GIVEN ON 22/11/2017. ANNEXURE NO.3 TRUE COPY OF THE S.164 STATEMENT OF THE VICTIM. ANNEXURE NO.4 CERTIFIED COPY OF THE FINAL REPORT CRIME NO.359/2017 OF AMBALAVYAL POLICE STATION, WAYANAD DISTRICT.** ## **RESPONDENT'S/S EXHIBITS: NIL**