Renju R.K. and Shyla v. State of Kerala (CRL.M.C. Nos. 4888 of 2019 & 7886 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942** ## **CRL.MC.NO.4888 OF 2019** **SC 882/2017 OF SPECIAL COURT UNDER POCSO ACT, KOLLAM** **CRIME NO.1367/2017 OF KARUNAAGAPALLY POLICE STATION, KOLLAM** ## **PETITIONER/1ST ACCUSED:** **RENJU.R.K, AGED 31 YEARS,** **S/O. RADHAKRISHNAN, RESIDING AT PUTHUMANGALATHU VEEDU, MARUNNOORKULANGARA THEKKUM MURI, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY, KOLLAM, PIN-690518.** **BY ADVS.SRI.K.SIJU, SMT.S.SEETHA** ## **RESPONDENTS/STATE:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.** - **2 STATION HOUSE OFFICER, KARUNAGAPPALLY POLICE STATION, KARUNAGAPPALLY, KOLLAM-690518.** - **3 THE DISTRICT POLICE CHIEF, KOLLAM CITY, KOLLAM-691001.** - **4 ASSISTANT COMMISSIONER OF POLICE, KARUNAGAPPALLY, KOLLAM-690518.** - ***ADDL. 5 PRASANNAN, AGED 44 YEARS, S/O PRABHAKARAN, MAMPATTA KIZHAKKTHIL VEEDU, THEKKEMURIYIL, ADINADU, KOLLAM-690542** - **IS IMPLEADED AS ADDL.R5 AS PER ORDER DATED 25/7/19 IN CRL.M.A. 3/19 IN CRL.M.C. 4888/19** **SRI.SUMAN CHAKRAVARTHY, SENIOR PUBLIC PROSECUTOR FOR R1 TO R4, SRI.S.SAJJU, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC.CASE HAVING BEEN FINALLY HEARD ON 05.11.2020, ALONG WITH CRL.M.C.NO.7886/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942** ## **CRL.MC.NO.7886 OF 2019(E)** **SC 882/2017 OF SPECIAL COURT UNDER POCSO ACT, KOLLAM** **CRIME NO.1367/2017 OF KARUNAAGAPALLY POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED NO.2:** **SHYLA, AGED 40 YEARS, D/O RAJAMMA , MAMBATTAKIZHAKKATHIL, ABINADU SOUTH, KAATILKADAVU P.O, ADINADU VILLAGE, KARUNAGAPPALLY.** **BY ADVS.SRI.K.SHAJ, SRI.RENJIT GEORGE, SRI.C.IJLAL, SRI.ARUN CHAND,KUM.K.SALMA JENNATH** **RESPONDENTS/STATE: 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 2 STATION HOUSE OFFICER, KARUNAGAPPALLY POLICE STATION, KARUNAGAPPALLY, KOLLAM - 690 518. 3 THE DISTRICT POLICE CHIEF, KOLLAM CITY , KOLLAM - 691 001. 4 ASSISTANT COMMISIONER OF POLICE KARUNAGAPPALLY, KOLLAM- 690 518. 5 ASSISTANT COMMISSIONER OF POLICE SPECIAL BRANCH, KOLLAM CITY, 691 001. *ADDL. 6 SHAILAJA, AGED 36 YEARS, D/O RAJAMMA, SREELAKAM VEEDU, KOTTATKKUPURAM MURI, K.S PURAM VILLAGE, KARUNAGAPALLY, KOLLAM. * IS IMPLEADED AS ADDL.R6 AS PER ORDER DATED 19/11/19 IN CRL.M.A.2/19** **SRI.SUMAN CHAKRAVARTHY, SENIOR PUBLIC PROSECUTOR FOR R1 RO R5, SRI.S.SAJJU, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.11.2020, ALONG WITH CRL.M.C.NO.4888/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ----------------------------------------------Crl.M.C. Nos. 4888 & 7886 of 2019 ----------------------------------------------Dated this the 5[th] day of November, 2020 ## O R D E R Since the essential challenge in these two cases is as against the same proceedings, and as the petitioners are accused 1 & 2 in the same crime, these cases are disposed of on the basis of this common order. 2. The prayer in Crl.M.C. No. 4888/2019 is as follows: _“.....set aside Annexure 3 order of the 3[rd] respondent and direct the Additional District and Sessions Court (Special Court for the trial of POCSO Act Cases), Kollam in SC No.882/2017 to proceed further trial of the case ignoring Annexure-2 in the interest of justice.”_ 3. The prayer in Crl.M.C. No. 7886/2019 is as follows: _“.....set aside Annexure A3 order of the third respondent and direct the Additional District and Sessions Court (Special Court for the trial of POCSO Act Cases), Kollam in SC No.882/2017 to proceed further trial of the case ignoring Annexure A3 order in the interest of justice.”_ 4. Heard Sri.Siju Kamalasanan, learned counsel appearing for the petitioner in Crl.M.C. No. 4888/2019 (Accused No.1) and Sri.K.Shaj, learned counsel appearing for the petitioner in Crl.M.C. No. 7886/2019 (Accused No.2) and Sri.S.Sajju, learned Public Prosecutor appearing for the official respondents in these two cases. Notice to Addl.R-5 (father of the deceased minor victim girl) in Crl.M.C. No. 4888/2019 has been Crl.M.C. Nos. 4888 & 7886 of 2019 ..4.. returned with the endorsement _“R-5 not residing in the address and house was locked”._ Though notice to Addl.R-6 (defacto complainant) has been duly served, there is no appearance for that party. In the nature of the order proposed to be passed in this petition, notice to Addl.R-5 in Crl.M.C. No. 4888/2019 will stand dispensed with. 5. The petitioner in Crl.M.C. No. 4888/2019 and the petitioner in Crl.M.C. No. 7886/2019 have been arrayed as accused Nos.1 & 2 respectively among the two accused in the instant Crime No. 1367/2017 of Karunagappally Police Station, which has now led to the pendency of Sessions Case S.C. No. 882/2017 on the file of the Addl. Sessions Court-I (Special Court for POCSO Act Cases), Kollam. The offences alleged against the accused persons are those punishable under Secs.305 (abetment to commit suicide of a minor) & Sec.375(2)(n) of the IPC and Secs. 3, 4, 5(1) & 6 of the POCSO Act, 2012. 6. The brief of the prosecution case is that, A-1 had subjected the minor victim girl then aged 12½ years old, who is the daughter of A-2, to carnal intercourse against the order of nature Crl.M.C. Nos. 4888 & 7886 of 2019 **==> picture [18 x 9] intentionally omitted <==** on several occasions, with the knowledge of A-2, who is her mother. And that, the minor victim girl had witnessed A-1 & A-2 in a compromising position and due to above acts of the accused persons, it has inflicted great mental strain to the child, and later the said minor victim girl had committed suicide, and thereby the accused persons have committed the abovesaid offences. 7. The crime was registered on the basis of first information given by one Shylaja, sister of A-2 (who has been impleaded as Addl.R-6 in Crl.M.C. No. 7886/2019) (CW1/PW1 in this case). The crime was initially registered on 28.3.2017 under Sec.174 of the Cr.P.C. on account of the unnatural death of the minor victim girl. Later during the course of investigation, the offences have been altered and after completion of investigation, the final report/charge sheet has been filed in respect of abovesaid offences, which led to the institution of abovesaid Sessions Case as aforesaid. Then, the Sessions Court has framed the charges, and examination of prosecution witnesses commenced on 23.7.2018 and the evidence was closed on 17.6.2019 and the questioning process of accused persons as per Sec.313 Cr.P.C. was also duly Crl.M.C. Nos. 4888 & 7886 of 2019 **==> picture [19 x 9] intentionally omitted <==** completed by the Sessions Court on 24.6.2019. Further, the report of the Sessions Court concerned submitted before this Court would disclose that, no defence evidence was adduced though the case was formally posted for defence evidence on 25.6.2019, and hence the case was posted for final hearing on 1.7.2019. 8. In the meanwhile, it appears that the District Police Chief, Kollam City, has passed order No.351/CAMP/2019-QV dated 29.6.2019 (produced as annexure in both these cases) based on the petition/representation submitted by Sri.Prasannan (father of the deceased minor victim girl) (Addl.R-5 in Crl.M.C. No. 4888/2019) it was ordered that, further investigation of abovesaid case should be conducted by the Asst. Commissioner of Police, Karunagappally, and that necessary permission in that regard may be obtained from the Sessions Court concerned under Sec.173(8) of the Cr.P.C. etc. Pursuant thereto, the prosecution agency has filed Crl.M.P. No.931/2019 in S.C. No. 882/2017 seeking for permission of said Court to facilitate further investigation as ordered by the District Police Chief and praying that, further proceedings in the trial may be stopped until the conclusion of Crl.M.C. Nos. 4888 & 7886 of 2019 ..7.. further investigation. The Sessions Court concerned has passed the impugned order dated 1.7.2019 on Crl.M.P. No.931/2019 in S.C. No. 882/2017, allowing the said plea of the prosecution agency and permitting such further investigation, and ordered that the case should await further investigation report. The abovesaid order dated 1.7.2019 rendered by the Addl. Sessions Court-I (Special Court for POCSO Act Cases), Kollam, on Crl.M.P. No.931/2019 in S.C. No. 882/2017, reads as follows: _“Accused are present. Public Prosecutor filed report along with order of Police Commissioner ordering further investigation in this case. Allowed. Await further Investigation Report.”_ 9. Various contentions have been raised by the petitioners to challenge the abovesaid decision of the prosecution agency to conduct further investigation and the order passed by the Sessions Court granting such permission. The learned advocates appearing for the petitioners would urge that, since the case has reached at the fag end, more particularly, as the evidence process and Sec.313 Cr.P.C. questioning process of the accused have been completed, and as the case was posted for final hearing, the official respondents did not have the jurisdiction to seek further Crl.M.C. Nos. 4888 & 7886 of 2019 ..8.. investigation, and that the Sessions Court also does not have the jurisdictional competence to grant permission to facilitate such further investigation at that stage. In that regard, the petitioners would place reliance on the decision of three Judges' Bench of the Apex Court in the case in _**Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another [AIR 2019 SC 5233]**_ to contend that, after the charges have been framed by the trial court concerned, then the said court lacks jurisdiction to order for further investigation. 10. Per contra, Sri.S.Sajju, learned Public Prosecutor appearing for the official respondents in these two cases, would place reliance on various decisions of the Apex Court and various High Courts, including the decision of the Apex Court in the case in _**Vinay Tyagi v. Irshad Ali alias Deepak and Others [(2013) 5 SCC 762]**_ that, the matters relating to investigation/further investigation would fall within the exclusive domain and province of the statutory investigating agency as per the provisions contained in the Code of Criminal Procedure, and that the investigating agency have the power to seek further Crl.M.C. Nos. 4888 & 7886 of 2019 **==> picture [19 x 9] intentionally omitted <==** investigation even in case like this, going by the provisions contained in Sec.173(8) of the Cr.P.C., and that after conduct of such further investigation by getting the formal leave of the trial court concerned, the investigating agency is also at liberty to file a supplementary/additional final report/charge sheet etc as the case may be, and that it is well settled that both the original final report and supplementary final reports will have to be read conjointly, and the cumulative effect of the reports and documents annexed thereto, has to be considered by the Court etc, and that there is no question of treating the original final report as being withdrawn, cancelled or capable of being excluded from the records by implication on account of submission of the supplementary final report consequent to further investigation, etc. In that regard, learned Public Prosecutor has invited this Court's attention to paras 42 & 60 of the decision of the Apex Court in _**Vinay Tyagi's**_ case supra, which reads as follows: _**42.** Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the court shall discharge an accused in compliance with the provisions of Section 227 of the Code._ Crl.M.C. Nos. 4888 & 7886 of 2019 ..10.. _….......xxx.................xxx............_ . _xxx_ ............... _...xxx_ ................ _….......xxx.................xxx............_ . _xxx_ ............... _...xxx_ ................ _**60.** Once a report under Section 173(2) of the Code has been filed, it can only be cancelled, proceeded further or case closed by the court of competent jurisdiction and that too in accordance with law. Neither the police nor a specialised investigating agency has any right to cancel the said report. Furthemore, in the present case, the High Court had passed no order or direction staying further investigation by Delhi Police or proceedings before the court of competent jurisdiction. On the contrary, the Court had noticed explicitly in its order that it was a case of supplementary or further investigation and filing of a "supplementary report”. Once the Court has taken this view, there is no question of treating the first report as being withdrawn, cancelled or capable of being excluded from the records by the implication. In fact, except by a specific order of a higher court competent to make said orders, the previous as well as supplementary report shall form part of the record which the trial court is expected to consider for arriving at any appropriate conclusion, in accordance with law. It is also interesting to note that CBI itself understood the order of the Court and conducted only "further investigation” as is evident from the status report filed by CBI before the High Court on 28-11-2007._ 11. Further, Sri.S.Sajju, learned Public Prosecutor appearing for the official respondents would submit that, the restriction that further investigation cannot be resorted to after the framing of charges by the trial court will come into play only in a case where the plea for further investigation is made before the trial court by a party other than the statutory investigating agency, like the defacto complainant, accused etc, and that it is well settled that in a case where charges have already been framed by the trial Crl.M.C. Nos. 4888 & 7886 of 2019 ..11.. court, then the trial court will not have any jurisdiction to consider the plea for further investigation made at the behest of the party other than the statutory investigating agency, like the defacto complainant, accused etc. Hence, the learned Prosecutor would strongly contend that the abovesaid submission of the learned advocates appearing for the petitioners that the trial court has no jurisdiction to consider the plea for permission made by the investigating agency/prosecution agency for conduct of further investigation even after the framing of charges, etc is untenable and bereft of any merit. 12. After hearing both sides it is seen that, the case involves the unnatural death of the deceased minor victim girl who was then aged hardly 12½ years. This Court is now apprised that, the defacto complainant (Addl.R-6 in Crl.M.C. No. 7886/2019), has already turned hostile to prosecution while tendering evidence as a key prosecution witness. The father of the deceased minor victim girl is deeply interested in the outcome of this case and he has not been served. Therefore, it may not be right and proper for this Court to take a decision on the merits of the case, taking into Crl.M.C. Nos. 4888 & 7886 of 2019 **==> picture [24 x 7] intentionally omitted <==** account that vitally interested part, namely, the father of the deceased minor victim girl, is not now before this Court. The trial in this case stands deferred for a quite a long time. Therefore, it may not be right and proper for this Court to continue the order of deferment of trial any longer. The process of again identifying the correct address of abovesaid interested party, and then the act of service of notice, would prolong the consideration of matter which may not be conducive to the prosecution, the accused persons, as well as to the family members of the deceased minor victim girl. 13. After hearing both sides and after careful evaluation of the pleadings and materials on record, one aspect would stare at this Court is that, the impugned order passed by the trial court does not contain any reasons. That apart, the learned advocates appearing for the petitioners have raised an alternative plea apart from maintainability that, even it is assumed for argument sake that the trial court may have jurisdiction to consider the plea made by investigating agency for further investigation, such a plea could have been considered and allowed by the Court in a case like this, where the entire evidence has been over and the case had reached Crl.M.C. Nos. 4888 & 7886 of 2019 **==> picture [24 x 9] intentionally omitted <==** the final hearing stage, only if there are strong and cogent grounds are made out by the investigating agency to make out a case for further investigation, and that in the instant case the investigating agency has miserably failed to show any such grounds, and therefore the exercise of discretion by the court in granting such permission is improper and illegal inasmuch as, there are no strong grounds to justify the resort to further investigation at the fag end of the case, which unnecessarily prolongs the trial, and thus detrimentally affect the fundamental right of the accused persons for expeditious trial, which is the facet of Article 21 of the Constitution of India. Even as regards this ground urged by the petitioners, this Court deems it fit that it may not be proper for this Court to take a decision on that aspect on merits without hearing the vitally interested party, who is the father of the deceased minor victim girl. The first information (Addl.R-6 in Crl.M.C. No. 7886/2019) who is the sister of A-2/ maternal aunt of deceased minor victim girl/who is CW1/PW1 in this case has already turned hostile. Therefore, though service of notice on said party is complete, this Court feels that it may not be Crl.M.C. Nos. 4888 & 7886 of 2019 **==> picture [24 x 9] intentionally omitted <==** proper to take decision on merits on the rival pleas of this case without hearing the person who is vitally interested in the outcome of this case, who is the father of the deceased minor victim girl. 14. However, even without getting into the merits of the controversy, this Court has no hesitation to hold that, as the impugned order passed by the Sessions Court concerned does not disclose any reasons, the matter would require interdiction solely on the ground as none of the various aspects now canvassed by the rival parties have even been remotely considered and addressed by the said Court. Since, relevant and crucial aspects of the matter has not been duly considered and taken into account by the Sessions Court concerned, the matter would require serious reconsideration at the hands of the Sessions Court concerned, and it would warrant a remit. Accordingly, it is ordered that the abovesaid order dated 1.7.2019 rendered by the Addl. Sessions Court-I (Special Court for POCSO Act Cases), Kollam, on Crl.M.P. No.931/2019 filed by the prosecution agency in S.C. No. 882/2017 will stand set aside and quashed on the sole ground that the said order does not disclose any reasons.Consequently it is ordered that, Crl.M.C. Nos. 4888 & 7886 of 2019 **==> picture [24 x 9] intentionally omitted <==** Crl.M.P. No.931/2019 filed by the prosecution agency in S.C. No. 882/2017 will stand remitted to the abovesaid Sessions Court concerned, for consideration and decision afresh. 15. Sri.S.Sajju, learned Public Prosecutor would submit that, permission may be granted to the investigating agency/prosecution agency to file a detailed report of the Investigating Officer before the Sessions Court dealing out with the facts and circumstances which justify the conduct of further investigation as sought for in the abovesaid petition, and the pointed matters on which further investigation is really warranted in the facts and circumstances of the case, so as to really justify the plea for further investigation. The learned Prosecutor would submit that, investigating agency/prosecution agency will be able to convince the Sessions Court concerned that, taking into account the special nature of the facts and circumstances of the case which involves the unnatural death and sexual harassment and rape committed on a minor victim girl, and that public interest would require conduct of further investigation in this case, and these aspects justifying the conduct of further investigation would be Crl.M.C. Nos. 4888 & 7886 of 2019 ..16.. highlighted in the said report. 16. After hearing both sides this Court is of the considered view that, the said plea made by the prosecution is only to be allowed as taking into account the facts and circumstances of the case which involves the suicide of a minor victim girl who has been subjected to alleged sexual harassment and rape. Accordingly it is ordered that, the investigating agency is given 2 weeks time to file a detailed report before the Sessions Court in the matters in Crl.M.P. No.931/2019 showing out the facts and circumstances justifying the conduct of further investigation at this stage, and the matters on which further investigation is really necessary or warranted, etc. Copies of such report shall be given by the investigating agency to both the accused persons as well as to the father of the deceased minor victim girl. The investigating agency will apprise the father of the deceased minor victim girl about this order, so that he is in a position to make arrangements to enter appearance before the Sessions Court if he so requires. The Sessions Court will issue notice of hearing to the investigating agency, the accused persons and the father of the minor victim girl, Crl.M.C. Nos. 4888 & 7886 of 2019 **==> picture [23 x 9] intentionally omitted <==** and then consider various aspects of the matter, and then pass a considered order on the plea made in Crl.M.P. No.931/2019 in accordance with law, without much delay preferably within a period of 3 weeks from the date of filing of report by the investigating agency in the abovesaid petition. The abovesaid rival contentions on both sides should be meticulously considered and evaluated by the said Court, so as to render a considered decision showing reasons for arriving at the conclusion therein. 17. The investigating officer will forward a copy of this order to Addl.R-5 in Crl.M.C. No. 4888/2019 (father of the deceased minor victim girl) for necessary information. The investigating officer will also ensure that, a memo is filed before the Sessions Court concerned showing the correct present address of said party, the Sessions Court shall ensure that notice of hearing is duly served on that party through the investigating officer concerned. Notice of hearing on the accused persons may be served directly through their learned advocates appearing before the Sessions Court concerned. 18. It is made clear that, this Court has not entered into the Crl.M.C. Nos. 4888 & 7886 of 2019 **==> picture [24 x 9] intentionally omitted <==** merits of the controversy in any manner, and has quashed the impugned order solely on the ground for not showing any reasons therein, and it is for the Sessions Court concerned to take into account various aspects of the matter and then to take a considered decision thereon as afore directed and that too within the said time limit, taking into account the fact that the trial has been prolonged. With these observations and directions, the above Criminal Miscellaneous Cases will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. Nos. 4888 & 7886 of 2019 ..19.. ## **APPENDIX OF CRL.M.C.NO.4888/2019** **PETITIONER'S EXHIBITS:** **ANNEXURE 1 THE COPY OF FINAL REPORT IN CRIME NO.1367/2017 OF KARUNAGAPPALLY POLICE STATION. ANNEXURE 2 THE COPY OF APPLICATION DATED 29.06.2019 SUBMITTED BY THE NEW INVESTIGATING OFFICER IN SC 882/2017 ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS COURT(SPECIAL COURT FOR THE TRIAL OF POCSO ACT CASES) KOLLAM.** **ANNEXURE 3 THE COPY OF ORDER DATED 29.06.2019 VIDE NO.351/CAMP/2019-QV PASSED BY THE 3RD RESPONDENT.** **ANNEXURE 4 THE COPY OF ORDER SHEET IN SC NO.882/2017 DOWNLOADED FROM E-COURT. RESPONDENT'S EXHIBITS: ANNEXURE R4(a) TRUE COPY OF THE ORDER DATED 01.07.2019 IN CRL.MP 931/2019** Crl.M.C. Nos. 4888 & 7886 of 2019 ..20.. ## **APPENDIX OF CRL.MC 7886/2019** **PETITIONER'S EXHIBITS: ANNEXURE A1 THE TRUE COPY OF FINAL REPORT IN CRIME NO.1367/2017 OF KARUNAGAPPALLY POLICE STATION. ANNEXURE A2 THE TRUE COPY OF THE APPLICATION FOR FURTHER INVESTIGATION DATED 01/07/2019 MADE BEFORE ADDITIONAL DISTRICT AND SESSIONS COURT (SPECIAL COURT FOR POCSO ACT CASES) KOLLAM ANNEXURE A3 THE TRUE COPY OF THE ORDER NO. 351/CAMP/2019-QV DATED 29/06/2019 PASSED BY THE DISTRICT POLICE CHIEF , KOLLAM CITY , KOLLAM ANNEXURE A4 THE TRUE COPY OF THE COMPLAINT DATED 29.08.2017 MADE TO THE HON'BLE CHIEF MINISTER OF KERALA. ANNEXURE A5 THE TRUE COPY OF THE REPORT DATED 21/02/2018.**