Kolakkadan Noushad @ Mon v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940** **Crl.MC.No. 1616 of 2016** **( AGAINST THE ORDER/JUDGMENT IN CRMP 486/2016 IN SESSION CASE NO.530/2009 OF ADDL.DISTRICT COURT, KOZHIKODE. CRIME NO. 452/2008 OF MUKKOM POLICE STATION , KOZHIKODE)** **PETITIONER(S)/6TH ACCUSED** **KOLAKKADAN NOUSHAD @ MON, AGED 43 YEARS, S/O.MOOSA, GOSHALAPARAMBU HOUSE, POST CHERUVADY, VIA, MAVOOR, KOZHIKODE DISTRICT, PIN-673 661** **BY ADVS.SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI** ## **RESPONDENT(S)/COMPLAINANT & STATE :** ## **1. THE STATION HOUSE OFFICER** - **, MUKKAM POLICE STATION, MUKKAM, KOZHIKODE DISTRICT, PIN-673 602.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** ## **ADDL.R3. ASAMBI** **W/O. SHAMSUDHEEN KAMMUNY, PANGADEN HOUSE, VALLALTHIPARA ( PO), MUKKAM, KOZHIKODE, PIN – 673 502.** ## **ADDLR.4:SHAMSUDHEEN @ KUNNINI SHAMSUDHEEN, LAKSHAM VEEDU COLONY, KARAKKUTTY KODIYATHUR (P.O.), MUKKAM, KOZHIKODE – 673 602.** **ADDL.R5. MUHAMMED @ BAVA,** **S/O. KUNHAMU, AMBALATHINGAL HOUSE, CHENANMANGALLUR ( P.O.), MUKKAM, KOZHIKODE – 673 602.** **ADDL.R6: MUHAMMED MUSTHAFA @ VICHI @ MANU, KANNANCHERYCHALIL HOUSE, CHERAYAKKAD KUNNANMANGALAM (PO), VENGARA ( VIA)** ## **ADDL.R7: IRUMBADASSERY ASHRAF,** **S/O. MOOSAKUTTY, KALATHINGAL HOUSE, VAKKALLUR KAVANUR P.O. MALAPPURAM DISTRICT, PIN – 673 644.** **ADDL.R8: JAFFAR @ KUNJIPPA,** **S/O. MUHAMMED, POOLKKAL HOUSE, KALATHINGAL, VAKALLR, KAVANOOR ( PO), MALAPPURAM DISTRICT 673 644** ## **ADD.. R9. NOUSHAD,** **S/O.MUHAMMEDUNNI, KUYITHODI HOUSE, KAVANUR P.O. MALAPPURAM DISTRICT, PIN 673 644.** **(ADDL. R3 TO R7 ARE IMPLEADED AS PER ORDER DATED 6/4/2016 IN CRL.M.A. NO.3308/2016)** **R6 BY ADV. SRI.PEEYUS A.KOTTAM** **R1 and R2 BY SPECIAL PUBLIC PROSECUTOR SMT.AMBIKA DEVI ( FOR ATTROCITIES AGAINST WOMEN)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-07-2018, THE COURT ON 25/7/2018 PASSED THE FOLLOWING:** ## **Crl.MC.No. 1616 of 2016 ()** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **ANNEXURE A-TRUE COPY OF THE FIR IN CRIME NO.452/2008 OF MUKKAM POLICE STATION AND FI STATEMENT OF THE DEFACTO COMPLAINT.** **ANNEXURE - B-TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE DEPUTY SUPERINTENDENT OF POLICE, THAMARASSERY BEFORE THE JFCM-II, THAMARASSERY.** **ANNEXURE -C-TRUE COPY OF THE CHARGE FRAMED AGAINST THE PETITIONER BY THE COURT OF THE SESSION, KOZHIKODE DIVISION IN SESSIONS CASE NO.530 OF 2009.** **ANNEXURE – D -TRUE COPY OF APPLICATION DATED 19-02-2016 SUBMITTED BY THE PETITIONER BEFORE THE COURT OF 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOZHIKODE AS C.M.P.NO.486 OF 2016 IN S.C.NO.530 OF 2009.** **ANNEXDURE -E -TRUE COPY OF THE COUNTER STATEMENT DATED 22-02-2016 FILED BY THE SPECIAL** **PUBLIC PROSECUTOR IN ANNEXURE D APPLICATION.** **ANNEXURER -F -TRUE COPY OF THE APPLICATION C.M.P.NO.495 OF 2016 DATED 20-02-2016 FILED BY THE SPECIAL PUBLIC PROSECUTPOR IN S.C.NO.530 OF 2009 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOZHIKODE.** **ANNEXURE – G -TRUE COPY OF THE COUNTER STATEMENT DATED 22-02-2016 FILED BY THE PETITIONER IN ANNEXURE-F APPLICATION** **ANNEXURE – H -TRUE COPY OF THE ORDER DATED 2-03-3026 IN CRL.M.P.NO.486 OF 2016 IN SESSIONS CASE NO.530 OF 2009 ON THE FILE OF THE COURT OF SESSION, KOZHIKODE DIVISION.** ## **RESPONDENTS EXHIBITS: NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No. 1616 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of July 2018 ## **O R D E R** This Crl.M.C.is preferred by the 6[th] accused in SC No.530/2009 of the Court of Session, Kozhikode alleging offences punishable under sections 366(A),372 and 376(g) of IPC. 2. According to the prosecution, a 13 year old girl laid a complaint on 3/9/2008 alleging sexual abuse on her. It was stated that, her father had abandoned her mother. Later, another person joined the company of mother offering to maintain the victim and the mother. Hence, she started living with the mother and the above step father. It is alleged that, during the above period, the victim was subjected to sexual abuse on several occasions by the step father under threat. While she was in the 8[th] standard, step father and mother took her to a distant place and handed over her to one person for money. He took her to Wayanad and committed rape on Crl.M.C.No.1616/2016 2 her. Thereafter, the step father and mother used to entrust her to several persons who abused her either at her house or after taking her to various distant places. She alleged that she was coerced to co-operate by the mother and step father, under threat to kill her. Unable to bear the trauma, she left her house and disclosed the entire incidents to her father. Complaint was thereafter laid by her. Crime was registered by the Mukkam police as Crime No.452/2008, arraying as accused,the mother, step father, petitioner herein and several other identified and other persons. Thereafter, investigation continued. Section 164 statement of the victim was recorded. Ultimately, split final report was laid against accused Nos. 1,2,3,6,7,8 & 9 which included the petitioner herein. Investigation against accused Nos.4,5 and 10 continued. Pursuant to the summons issued, the petitioner herein appeared before the Sessions Court. Charges were framed against accused on 15/10/2014 and read over, who denied the allegations. Later, the petitioner herein filed Annexure D as Crl.M.P.No.486/2016 to delete the charges laid against him and to hold that the charges framed against him were not in accordance with law. Annexure-E objection was filed by the State. Another application as Annexure-F was filed by the prosecution as CMP No.495/2016 to incorporate section 120B Crl.M.C.No.1616/2016 3 along with the charges. The petitioner herein filed Annexure G objection. The court below, after hearing both sides, dismissed Crl.M.P.Nos.486/2016 & 530/2009. 3. Aggrieved by the order in CMP No. 486/2016, a copy of which is produced as Annexure-H, the petitioner has approached this Court. Respondents 3 to 9 herein are the coaccused. Heard the learned counsel for the petitioner and the learned special prosecutor for cases of atrocities against women and children. Examined the records. 4. The main contention of the petitioner herein is that, charges framed by the court below are not in accordance with the provisions of the statute. It was contended that, charges were vague, bereft of the details of the incident, contrary to sections 211 and 212 Cr.P.C. and also in violation of section 219 of Cr.P.C. It was further contended that, the petitioner herein was sought to be joined and tried along with several other accused, who were not known to him. There was no meeting of mind with other co-accused. The allegation against each accused was independent, distinct and separate. It was contended that, since the prosecution proceeded on a premise that there was criminal conspiracy among all the accused and the alleged acts were done by them pursuant to their conspiracy, the finding of the court below refusing to add Crl.M.C.No.1616/2016 4 offence under section 120 Cr.P.C. will strike at the case of the prosecution and the allegation against each of the accused will have to be separately tried. It was contended that, the offences were not committed in the course of same transaction. Yet another contention of the petitioner was that, the incidents happened at different places covering more than two States and hence, trial of all the accused together in one Sessions Court was contrary to law and is liable to be interfered with. 5. Before analysing the factual and legal issues involved, it is essential to extract the charges now alleged against the petitioner herein. “Fifthly, that on one day after summer vacation 6[th] accused amongst you committed rape on CW1 from the house of A1 at Valliathalpara, Kumaranallur with the help of A1 and A2 giving money to them and on another day A6 took CW1 in his car along with A2 to his house at Cheruvadi and committed rape on CW1. After giving money to A2 and thereafter he handed over CW1 to his friend, an absconding accused for illicit intercourse and his friend committed rape on her and thereby A6 committed the offences punishable under sections 366,373 and 376(g) of IPC. “ 6. Specific contention of the petitioner herein is that, in the above charge, the date and the year of the incident is not Crl.M.C.No.1616/2016 5 mentioned. It was contended that, the petitioner is prejudiced in so far as the charge is vague and hence, he is unable to set up a valid defence. It was further contended that, the petitioner herein was a business man, who extensively travelled and the possibility of setting up a valid defence on alibi was taken away, in the absence of actual date and year of the incident. It was contended that, sections 211 and 212 Cr.P.C along with Form 32 in Schedule II of the Code were specifically intended to ensure that the prosecution shall provide the date, year and all other relevant materials which are essential for proper conduct of the case. It was contended that, it will cause substantial prejudice to the petitioner. 7. To buttress the above contention, learned counsel for the petitioner relied on the decision of this Court in **Ramesan** **& Others v. State of Kerala (2007(1) ILR (Ker) 583)** wherein a learned single judge of this court, referring to section 211 Cr.P.C.and Form No.32 in Schedule II of the Code, had held that the legislature intended that the court shall frame charge in such a way that the charge shall contain the necessary details of distinct offence or offences, which include date, time and place where the offence was committed and the person who committed the offence and the person against whom such offence was committed. It was also held that Crl.M.C.No.1616/2016 6 casual, perfunctory, haphazard manner of framing of charge will result in serious miscarriage of justice and it will deprive the accused of his valuable right to have a fair trial. Hence, it was held that the court should bear in mind that framing of charge shall not only give notice of the particulars of the offence to the accused, but it should also necessarily aid the court to know what exactly the charge was and what the prosecution case was. 8. Learned counsel for the petitioner further relied on the decision of the Supreme Court in **Main Pal v. State of Haryana (2010 AIR 3292)** wherein the court held that the accused cannot be punished for committing an offence against”Y”, when he was charged with having committed the offence against”X” and the entire defence of the accused was with reference to charge of having committed offence against “X”. In the above decision, the court referred to the provisions of the Code of Criminal Procedure and emphasized the need for prescribing the details in the charge. However, the court also took note of section 215 of the Code which clarified that no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled Crl.M.C.No.1616/2016 7 by such error or omission, and it had occasioned in failure of justice. 9. In this regard, it is essential to refer to Annexure B final report laid by the prosecution. It is stated therein that on a day after the re-opening of the school, after the mid summer vacation, the accused abused the victim at her house. It seems that, while framing the charge, learned Sessions Judge seems to have inadvertently omitted to mention that the incident happened “after the school had re-opened” after the mid summer vacation of 2008”. The details that, it was in the year 2008 and that it was after re-opening of the school, are seen omitted. It is pertinent to note that, in the 3[rd] and 4[th] charges, the court has specifically referred that the incidents had happened in the year 2007 and 2008 respectively. Hence, the omission to include the above details in the court charge seems to be inadvertent. Still, it cannot be said that the absence of even these details, in the charge,may cause any material prejudice since the petitioner herein is aware of it, in the light of the records which are relied on by the petitioner herein, which includes the final report. Hence, it is for the court below to consider whether charge needs to be modified adding the above facts also, as abundant caution. It is true that, the specific date is not mentioned. Even though Form 32 and Crl.M.C.No.1616/2016 8 section 212 prescribe that the date should be provided it can only be considered as a case of furnishing the date, if it is available. ## 10. The Hon'ble Supreme Court in **Chittarangan Das v.** **State of W.B.(1963 KHC 674)** had occasion to consider the above issue. The Apex Court held that, the basic requirement in every criminal trial is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which he is to face, and the validity of the charge must in each case be determined by the application of the test viz:had the accused a reasonably sufficient notice of the matter with which he was charged. It was held that it would be right to hold that a charge is invalid solely for the reason that it does not specify the particular date and time at which any offence is alleged to have been committed. It has to be born in mind that the requirement of procedure are generally intended to sub serve the ends of justice and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may some times frustrate the ends of justice. It was also held that, in a case where the girl is exposed to the risk of having sexual intercourse with several people from time to time, it was unreasonable to expect that she would be able to specify the Crl.M.C.No.1616/2016 9 precise date on which particular individuals had intercourse with her. It was held that, if it is insisted that in the case of this kind, the charge of rape framed against the appellant must specify the date on which the offence was committed by him, it would really mean that the appellant cannot be charged with the offennce because the unfortunate victim would in the ordinary course of things, not be able to state precisely the date on which she was made to submit to the accused. 11. In **Joseph @ Baby v. Sub Inspector of Police Munnar and Others(2014 KHC 255),** the Hon'ble Supreme Court had to deal with the case wherein 40 persons ravished a girl. The Supreme Court held that it was not possible to mention in the charge the exact date and time regarding the offences committed by each accused. Therefore, it was held that there was no defect in the charge framed by the court below. In the case at hand, the girl had not specifically mentioned the actual date of commission of the offence by the petitioner herein. Hence, it cannot be held that merely because the date is not mentioned by the victim and hence not mentioned in the charge, the charge is bad for lack of details. 12. The next contention set up by the petitioner herein was that, section 220 of Cr.P.C. stipulates that if in one series of acts so connected, together as to form the same transaction, Crl.M.C.No.1616/2016 10 more offences than one are committed by the same person, he may be charged with, and tried at one rial for, every such offence. It was contended that the court below did not take note of the fact that in the present case, the petitioner cannot be charged jointly with the other accused, since each allegation was independent and different. It was also contended that prosecution essentially relied on a premise that there was criminal conspiracy among the accused and hence section 120B was liable to be charged. The request for adding section 120B was declined by the court below. It was not challenged. Hence, it was contended that in the absence of a charge under section 120B, there was no common link connecting the accused and hence, it cannot be held that the incidents involving the accused arose in the course of the same transaction. This aspect was considered in Joseph's case(cited supra). In that case, referring to section 223 of Cr.P.C.,it was held that persons accused of the same offence committed in the course of the same transaction, persons accused of an offence and persons accused of abetment of, or attempt to commit such offence and persons accused of different offences committed in the course of same transaction can be charged and tried together. Refuting the contention that each accused was involving in distinct offence, it was held that charging of Crl.M.C.No.1616/2016 11 40 persons who had sexually abused the victim on different date and at different places could be tried together. 13. This view is fortified in the decision in **State of A.P.** ## **v. Cheemalapati Ganeswara Rao and Another (1963 KHC** **688)** . In that decision, the court had held that, if several acts committed by a person show a unity of purpose or design, that would be a strong circumstance to indicate that those acts form part of the same transaction. It was held that, the object of legislature in enacting section 223 Cr.P.C.was to prevent multiplicity of trials and not only would that object be defeated, but an extraordinary result will ensue, if the various clauses of section 223 are read disjunctively. Summing up the entire legal propositions involved, the Supreme Court had held that, if the offences alleged are not wholly unconnected to form part of the same transaction, the only consideration that will justify the separate trial would be the embarsment or difficulty caused to the accused in defending the trial. In the case at hand there is absolutely no such contention for the petitioner. In **Dineshkumar R. v. State rep.by Inspector of Police and Others (2015 KHC 4196),** the Hon'ble Supreme Court considered the issue “in the case of same transaction” and reiterated the earlier view of the Supreme Court. 14. In **State of Haryana v. Naresh ailas Pappi (1996** Crl.M.C.No.1616/2016 12 **KHC 3355),** the Division Bench of Punjab and Haryana High Court had to consider the question of jurisdiction of court. That was a case wherein the incident occurred at different places. In this case, the girl was allegedly under threat by accused Nos. 1 and 2 at a place within the jurisdiction of Kozhikode Sessions Court and later given for sexual abuse by various persons. Consequently, the contention of the petitioner herein that the Session Court of Kozhikode has no jurisdiction cannot apply. 15. Having considered the entire facts in the above legal perspective, I am satisfied that the contentions set up by the petitioner herein cannot survive. All the above contentions set up by the petitioner are liable to be rejected and there is no scope for any interference. Accordingly, Crl.M.C.is dismissed. The court shall proceed with the case as expeditiously as possible. Sd/- ## **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.M.C.No.1616/2016 13