K.SWASTHIK KUMAR v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 11[TH] DAY OF APRIL 2024 / 22ND CHAITHRA, 1946 OP(CRL.) NO. 22 OF 2024** **CRIME NO.2459/2021 OF MALAYINKEEZH POLICE STATION,** ## **THIRUVANANTHAPURAM** **AGAINST SC NO.1691 OF 2021 OF FAST TRACK SPECIAL COURT,** ## **KATTAKADA** ## **PETITIONER/ACCUSED:** **K.SWASTHIK KUMAR AGED 50 YEARS, SMQ 56/05, AIR FORCE STATION, SHANGUMUGAM BEACH P.O, THIRUVANANTHAPURAM, PIN - 695007** **BY ADVS. SRI.C.R.SURESH KUMAR SMT.AMRUTHA SURESH** **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031** **BY SRI.M.C.ASHI, PUBLIC PROSECUTOR** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON 11.04.2024 DELIVERED THE FOLLOWING:** O.P.(Crl.) No.22/2024 ## **-:2:-** ## **BECHU KURIAN THOMAS, J. ---------------------------------O.P.(Crl.) No.22 of 2024** ## **----------------------------------** Dated this the 11[th] day of April, 2024 ## **JUDGMENT** Petitioner seeks for a direction to set aside the order dated 02.11.2023 issued by the Fast Track Special Court, Kattakada in Crl.M.P. Nos.545/2023 and 546/2023 in S.C. No.1691/2021. Petitioner has also sought a direction for re-investigation of Crime No.2459/2021 of Malayinkeezhu Police Station. 2. Crl.M.P. No.545/2023 was filed seeking a direction to the Investigating Officer to recover a Lenovo Model Tablet from the defacto complainant and to obtain a forensic report of the incidents recorded on 17.07.2021. Crl.M.P. No.546/2023 was filed for a direction for further enquiry and to subject the petitioner to a voluntary polygraph test. 3. Petitioner is indicted for the offences under sections 376(2)(f), 376(2)(n) and 376AB of the Indian Penal Code, 1860 sections 6, 5(m) and 5(n) apart from sections 8, 7,10, 9(m) and 9(n) of the Protection of Children from Sexual Offences Act, 2012, and section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Petitioner is alleged to have molested a minor girl at 2 am on 17.07.2021 and on 18.07.2021. O.P.(Crl.) No.22/2024 ## **-:3:-** After investigation, a final report was filed on 27.11.2021, which is now pending consideration as S.C. No.1691/2021 before the Fast Track Special Court, Kattakada. 4. Petitioner claims to be a Warrant Officer in the Indian Air Force. His first wife died due to cancer, and he lost his elder son due to a liver disease. The second son, aged 15 years, is alleged to be suffering from a liver disease and has already undergone a liver transplantation. Petitioner alleges that he had contracted a second marriage through a matrimonial site with the defacto complainant. The defacto complainant claims to have a six-year-old daughter through her earlier marriage. After her marriage with the petitioner was solemnised on 15.07.2021 at a temple at Thiruvananthapuram, due to the absence of the death certificate of her previous husband, the marriage with the petitioner could not be registered. Petitioner, alleges that he noticed certain discrepancies in the statements of the defacto complainant apart from some documents, which revealed to him that he had fallen into a trap. Immediately, he informed the matter to his commanding officer and later filed a written complaint before the SHO, Malayinkeezhu on 30.08.2021. It is also alleged that pursuant to Ext.P1 complaint, after the defacto complainant was called for interrogation, she made an allegation that the petitioner had molested her minor daughter on the basis of which Ext.P1 FIR was lodged, alleging that on 17.07.2021 and 18-07-2021, the accused had pressed on the private parts of the defacto O.P.(Crl.) No.22/2024 ## **-:4:-** complainant’s minor daughter aged six and inserted his finger into her private parts and thereby committed the offences alleged. 5. Petitioner alleges that a video recording of the petitioner and the defacto complainant along with the children was recorded on 17.07.2021 in a Lenovo M8 Tablet gifted by the petitioner to the minor girl, and if the same is verified and subjected to a forensic examination, it would reveal that on the days the petitioner is alleged to have molested the child, they were all enjoying and living happily together. It is in such circumstances that the petitioner sought for a direction to the Investigating Officer to seize the Lenovo Tablet and to order a re-investigation. According to the petitioner, the statements of some of the witnesses, especially the son of the defacto complainant, a boy aged 14 years, indicate that defacto complainant cannot be believed for a moment and further that the incident is alleged to have occurred at a time when they were all sleeping in the same bedroom. 6. I have heard Sri.C.R.Suresh Kumar, the learned counsel for the petitioner as well as Sri.M.C.Ashi, the learned Public Prosecutor. 7. The petitioner, who is an accused, seeks directions to the Investigating Officer to seize certain materials from the defacto complainant or the victim apart from seeking directions for a reinvestigation. An accused is not entitled to dictate the mode and manner in which an investigation should be carried on. An accused is also not O.P.(Crl.) No.22/2024 ## **-:5:-** entitled to seek a further investigation. 8. Though the allegations against the accused are serious, the same has to be established in a trial. The statements of some of the witnesses, especially the son of the defacto complainant, a boy aged 14 years, do indicate that there are inconsistencies in the statements of the defacto complainant. It is also noticed that the incident is alleged to have occurred at a time when the petitioner and the defacto complainant along with the minor child were sleeping in the same bedroom. However, the stage for appreciating all the above aspects is during trial. At that stage, the accused will also get sufficient opportunity to adduce his evidence, if he so pleases. Other than that, the accused cannot dictate the mode and manner in which an investigation ought to be conducted. However, if an investigation is faulty or incomplete, the court can, while considering the final report, direct a further investigation. The investigating Officer can also carry out a further investigation after intimating the Court. 9. In the instant case, it is noticed that a further investigation was once conducted pursuant to the orders of the District Police Chief (Rural), Thiruvananthapuram, dated 03-12-2021. A further final report dated 05-03-2022 was also filed, maintaining the allegations against the petitioner. Subsequently, the petitioner filed Crl.M.P No.1319/2022 for a further enquiry for subjecting him to a polygraph test and Crl.M.P No.28/2023 for a direction to seize the Lenovo Tab. Both those petitions O.P.(Crl.) No.22/2024 ## **-:6:-** were dismissed for non-prosecution. Thereafter, petitioner filed Crl.M.P No. 545/2023 seeking a direction to the investigating Officer to collect the Lenovo Tab or to direct the mother of the victim to surrender the Tablet and to get a forensic report. Crl.M.P No. 546/2023 was filed for further enquiry and to subject the petitioner to a polygraph test. The subsequent petitions are both practically for the same purposes as the earlier petitions. 10. Though the petitioner is knocking at the doors of this Court to prove his alleged innocence, legally, at the instance of the accused, a further investigation cannot be ordered. Moreover, what is sought to be obtained by seizing the Lenovo Tablet from the victim or her mother is a circumstance based on the assumption that there is a video recording which could indicate that the victim was in friendly terms with the petitioner on the date of the incident and possibly thereafter. In this context, it is apposite to observe that an accused cannot compel the Investigating Officer to carry out an investigation in a particular manner. 11. In fact, in the decision in **Surendra Babu v. State of Kerala** [2023 (3) KHC 588], this Court has observed that it is a well settled position of law that, as far as the matters relating to an investigation is concerned, the accused has no right to be heard, and he cannot insist that the investigation should be conducted in a particular manner. In **Sanjiv Rajendra Bhatt v. The Union of India and Others** (2016) 1 SCC 1, it was observed that the accused has no right with reference to the manner of O.P.(Crl.) No.22/2024 ## **-:7:-** investigation or mode of prosecution. 12. Having regard to the above factual and legal aspects relating to the case on hand, this Court finds no reason to interfere with the wellconsidered order of the Special Court. Accordingly, this original petition is dismissed. Sd/- **BECHU KURIAN THOMAS JUDGE** vps ## O.P.(Crl.) No.22/2024 ## **-:8:-** ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS** **Exhibit P1 A COPY OF THE FIR IN CRIME NO.2459/2021 OF MALAYINKEEZHU POLICE STATION DATED 01/09/2021** **Exhibit P2 A COPY OF THE FINAL REPORT DATED 27/11/2021** - **Exhibit P3 A COPY OF THE AADHAR CARD OF THE DEFACTO COMPLAINANT** - **Exhibit P4 A COPY OF THE BIRTH CERTIFICATE OF VICTIM ISSUED BY THE REGISTRAR OF BIRTH, MUNICIPAL CORPORATION OF GREATER MUMBAI** - **Exhibit P5 A COPY OF THE TRANSFER CERTIFICATE ISSUED TO ONE SHEELA KUMARI P.D. FROM CHRIST KING CONVENT GIRL'S SCHOOL AT PAVARATTI** **Exhibit P6 A COPY OF THE TRAIN TICKET SHOWING JOURNEY DATED 02/09/2021** - **Exhibit P7 A COPY OF THE COMPLAINT TO SHO MALAYINKEEZHU POLICE STATION DATED 31/08/2021** - **Exhibit P8 A COPY OF THE RECEIPT ISSUED BY THE MALAYINKEEZHU POLICE STATION DATED 01/09/2021** - **Exhibit P9 A COPY OF THE FIR IN CRIME NO. 2462/2021 OF MALAYINKIL POLICE STATION DATED 02/09/2021** - **Exhibit P10 A COPY OF THE COMMON ORDER IN CRL MP NO.545/2023 AND CRL MP NO.546/2023 DATED 02/11/2023 IN SC NO.1691/2021 PENDING BEFORE FAST TRACK SPECIAL COURT KATTAKADA**