MUNABEER T v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 8[TH] DAY OF AUGUST 2023 / 17TH SRAVANA, 1945 CRL.MC NO. 4886 OF 2023 ``` ``` (AGAINST THE PROCEEDINGS IN SC NO.28/2020 OF ``` ``` ADDITIONALDISTRICT AND SESSIONS COURT, THALASSERY) ``` ``` (CRIME NO.485 OF 2019 OF IRITTY POLICE STATION) ``` ## **`PETITIONER/FIRST ACCUSED:`** ``` MUNABEER T, AGED 37 YEARS S/O ABOOBAKKER, JAMSHEER MANZIL, CHAVASSERY, IRITTY TALUK, KANUUR DIST, PIN – 670702. ``` ``` BY ADVS.SRI.SIVAN MADATHIL SMT.P.USHAKUMARI ``` ## **`RESPONDENT/DEFACTO COMPLAINANT/STATE:`** ``` STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, PIN – 682031. ``` ``` BY PP SRI.G.SUDHEER ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.4886 of 2023 2 ## **ORDER** The prayers in this Crl.M.C. are as follows:- “1) Quash Annexure-A10 final report dated 31.12.2019, submitted by the SI of Police Iritty before the learned Additional District and Sessions Court (POCSO), Thalassery and all further proceedings therein in S.C.28/20 on the files of Additional District and Sessions Court, Thalassery. 2) Stay all further proceedings pursuant to Annexure-A10 final report submitted by the SI of Police Iritty before the Learned Additional District and Sessions Court (POCSO), Thalasseri to the extent of proceeding against the petitioner as accused in SC.28/20.” 2. The petitioner is accused No.1 in Crime No.485/2019 of Iritty Police Station, Kannur. He faces charges under Sections 354, 341, 323, 511 & 370(4) r/w Section 34 of the Indian Penal Code and Section 10 r/w Section 9(g) of the Protection of Children from Sexual Offences Act. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. The prosecution case is as follows:- On 11.7.2019 at 16.30 hrs., the defacto complainant was returning from school. She got down from the school bus at the bus stop. She was moving towards her house on the public road with her Crl.M.C.No.4886 of 2023 3 friends. The petitioner and the other two accused came to the spot in a car, stepped down there, and committed sexual assault against the victim. The petitioner caught hold of her hand, indicating that he wanted to talk to her. He forcefully caught her neck and made her close to his face. He also voluntarily caused hurt to the defacto complainant. 5. On 12.7.2019, the victim gave statement to the Police. She alleged that on 11.7.2019, while she was going along with her friends Anjali and Dion, the petitioner and other accused came close to them and requested them to get into a car. They refused the request. The petitioner and the other accused compelled them to get into the car, but the victim and the other children did not concede to the request. The petitioner and the other accused followed them. The petitioner came out of the car. He attempted to say something to the victim in her ear. He attempted to take her into the car. The victim and other children cried. The petitioner voluntarily caused hurt to the victim and left the place. In the subsequent statement given by the victim, she added that the petitioner forcefully made her close to his face, and when she cried loudly, the public assembled there and the assailants left the place. 6. The victim also gave a statement under Section Crl.M.C.No.4886 of 2023 4 164 Cr.P.C. to the jurisdictional Magistrate. The children who travelled along with the victim also supported the version given by the victim. 7. The learned counsel for the petitioner submitted that there are several discrepancies in the versions given by the victim in the FIS, in the subsequent statement given to the Police and in the statement given to the learned Magistrate under Section 164 Cr.P.C. The learned counsel further contended that the place of occurrence, as stated by the victim, is different from the place of occurrence noted by the Police during the investigation. It is submitted that the continuation of the prosecution is an abuse of the process of the Court. 8. The learned Public Prosecutor, per contra, submitted that the FIS and the further statements given by the victim reveal the offences alleged and the alleged discrepancies in the statement given by the victim and the other witnesses are a matter of evidence. The credibility of the same is to be tested only during the trial. 9. The learned counsel for the petitioner contended that the ingredients of the offence under Section 9(g) read with Section 10 of the POCSO Act, are absent. ‘Sexual Assault’ is defined in Section 7 of the POCSO Act, which reads thus:- “ **Sexual assault** .- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such Crl.M.C.No.4886 of 2023 5 person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” 10. As per Section 9(g) of the POCSO Act, whoever commits ‘gang sexual assault’ on a child is said to commit aggravated sexual assault. Section 9(g) explains that when a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed ‘gang sexual assault’. 11. In the present case, the available materials would reveal that the petitioner committed the overt acts with sexual intent involving physical contact, which comes under the definition of ‘sexual assault’. The prosecution alleges that there are three persons, including the petitioner in the group, and the persons in the group committed the above acts in furtherance of their common intention. Thus, the ingredients of gang sexual assault are satisfied. Therefore, the offence under Section 9(g) r/w Section 10 of the POCSO Act is prima facie established. 12. On the power of exercising jurisdiction under Section 482 Cr.P.C. to quash criminal proceedings, this Court in **Abdul Sathar** ## v. **State of Kerala (2023 (1) KLT 254)** held thus:- “20. It is settled by a long course of decisions of the Apex Court Crl.M.C.No.4886 of 2023 6 that for the purpose of exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has been further held that the High Court has no jurisdiction to examine the correctness or otherwise of the allegations (Vide: State of West Bengal v. Swapan Kumar Guha (1982 KLT OnLine 1031 (SC) =(1982) 1 SCC 561), Pratibha Rani v. Suraj Kumar (1985 KLT OnLine 1239 (SC) = (1985) 2 SCC 370)). 21. In State of Kerala v. O.C.Kuttan (1999 (1) KLT 747 (SC) = (1999) 2 SCC 651), the Apex Court held that while exercising the power, it is not possible for the Court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In State of U.P v. O.P.Sharma (1996 (1) KLT OnLine 997 (SC) = (1996) 7 SCC 705) a Three Judge Bench of the Apex Court observed that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 Cr.P.C. or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. This view was reiterated by another Three Judge Bench of the Apex Court in Rashmi Kumar v. Mahesh Kumar Bhada (1996 (2) KLT OnLine 1211 (SC) = (1997) 2 SCC 397), wherein the Apex Court held that such power should be sparingly and cautiously exercised only when the Court is of the opinion that otherwise there will be gross miscarriage of justice. It is trite that the power of quashing criminal proceedings should be exercised with circumspection and that too, in the rarest of rare cases and it was not justified for this Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the Final report or the complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C. This view is fortified by the decision of the Apex Court in Mahendra K.C. v. State of Karnataka and Ors. (2021 (6) KLT OnLine 1128 (SC) = AIR 2021 SC 5711). 22. While dealing with the power under Section 482 Cr.P.C. to quash the criminal proceedings the Apex Court in M/s.Neeharika Infrastructure Pvt.Ltd. v. State of Maharashtra & Ors. (2021 (3) KLT SN 4 (C.No.3) SC = 2021 (2) KLT OnLine 1039 (SC) = AIR 2021 SC 1918) concluded thus in paragraph 23 of the judgment: Crl.M.C.No.4886 of 2023 7 23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Code of Criminal Procedure and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the Accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Code of Criminal Procedure, while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/ complaint/FIR in exercise of powers under Section 482 Code of Criminal Procedure and/or under Article 226 of the Constitution of India, our final conclusions are as under: ## (i) xxx xxx xxx xxx xxx xxx (xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; (xiii) xxx xxx xxx (xiv) xxx xxx xxx (xv) When a prayer for quashing the FIR is made by the alleged Accused and the court when it exercises the power under Section 482 Code of Criminal Procedure, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;” ## 13. Yet another aspect that requires consideration is that charges have already been framed against the petitioner by the trial Crl.M.C.No.4886 of 2023 8 Court. In **Minakshi Bala** v. **Sudhir Kumar and Others [(1994) 4 SCC 142]** , the Apex Court held that once charges are framed, the High Court would not be justified in invoking its inherent jurisdiction under Section 482 Cr.P.C. to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. In the present case, this Court finds nothing exceptional to invoke the jurisdiction under Section 482 Cr.P.C.. The petitioner failed to convince this Court that the allegations levelled against him in the available prosecution records do not disclose the ingredients of the offences alleged. The correctness or otherwise of the allegations levelled in the FIS is a matter to be tested during the trial. It is made clear that this Court has not made any observation on the merits or otherwise of the allegations which formed the foundation of the charges. The Crl.M.C. lacks merits and it stands dismissed. Sd/- **K.BABU Judge** TKS Crl.M.C.No.4886 of 2023 9 ## **`PETITIONER’S ANNEXURES:`** ``` ANNEXURE A1: TRUE COPY OF THE FIR NO.0485 DATED 12.07.2019 PREPARED BY SRI.MANI.K.SC.PO., IRITTY POLICE STATION ALONG WITH THE STATEMENT OF THE DEFACTO COMPLAINANT. ``` - **`ANNEXURE A2: TRUE COPY OF THE TREATMENT CERTIFICATE DATED 17.08.2019 ISSUED BY DR.AJMAL TALUK HOSPITAL.`** - **`ANENXURE A3: TRUE COPY OF THE REPORT OF MEDICO-LEGAL EXAMINATION SURVEYOR OF SEXUAL OFFENCES DATED 24.07.2019 PREPARED BY DR.DEEPTHI K.I., MEDICAL OFFICER TALUK HOSPITAL, KANNUR.`** ## **`ANNEXURE A4: TRUE COPY OF THE SCENE MAHAZAR.`** - **`ANNEXURE A5: TRUE COPY OF THE SITE PLAN OF THE OCCURRENCE WAS PREPARED BY SRI.PRIYARANJAN E.,VILLAGE ASSISTANT.`** - **`ANNEXURE A6: TRUE COPY OF THE STATEMENT DATED NIL GIVEN BY THE COMPLAINANT BEFORE THE WSCPO SMT.SUMATHI.`** - **`ANNEXURE A7: TRUE COPY OF THE STATEMENT GIVEN BY THE COMPLAINANT BEFORE SMT.SUMATHI WSCPO, IRITTY POLICE STATION.`** - **`ANNEXURE A8: THE STATEMENT GIVEN BY THE COMPLAINANT BEFORE THE JFCM MATTANNUR AND THE REPORT SUBMITTED BY JFCM MATTANNUR.`** ## **`ANNEXURE A9: THE DEPOSITION OF THE COMPLAINANT’S FRIEND.`** - **`ANNEXURE A10: FINAL REPORT DATED 31.12.2019 FILED BY THE SI OF POLICE IRITTY POLICE STATION BEFORE THE ADDITIONAL DISTRICT AND SESSION COURT-i (POCSO), THALASSERY.`** ## **`TKS`**