Rijo v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941** ## **Crl.MC.No.5817 OF 2019(F)** **AGAINST THE ORDER/JUDGMENT IN SC 7/2018 OF ADDITIONAL DISTRICT COURT, THRISSUR** **CRIME NO.1699/2015 OF Peramangalam Police Station, Thrissur** **PETITIONER/S:** **RIJO, AGED 24 YEARS, S/O DEVASSY @ RAJAN, MUTTATHU HOUSE, PURANATTUKARA, PERAMANGALAM, THRISSUR DISTRICT.** **BY ADVS. SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K. SRI.U.M.HASSAN SMT.P.PARVATHY SMT.SURYA P SHAJI SHRI.MANAS P HAMEED** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM.**| |**2**|**THE SUB INSPECTOR OF POLICE**| ||**PERAMANGALAM POLICE STATION,**| ||**THRISSUR DISTRICT.**| |**3**|**VICTIM**| ||**X**| |**4**|**GETRUDE, W/O DEVASSY @ RAJAN,MUTTATHU HOUSE,**| ||**PURANATTUKARA,PERAMANGALAM,**| ||**THRISSUR DISTRICT-680551.**| |**5**|**SINTO.T.J, S/O JOHNY.T.L,THAIKKATTIL HOUSE,**| ||**KUTTUR.P.O,THRISSUR DISTRICT.**| **R4-5 BY ADV. LEKHA** ## **OTHER PRESENT:** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::2:: **Crl.MC.No.5817 OF 2019(F)** ## **ALEXANDER THOMAS, J** . ----------------------------Crl.M.C.No.5817 Of 2019 --------------------------------Dated this the 30[th] day of August, 2019. ## **O R D E R** The petitioner herein has been arrayed as the 1[st] accused among the 3 accused in Crime No.1699/2015 of Peramangalam Police Station. The petitioner is the brother of the 3[rd] respondentlady victim. The respondents 4 & 5 are the mother and husband respectively of the 3[rd] respondent-victim. One Devassy and Windsor, who are the father and mother's brother respectively of the victim, have been arrayed as accused Nos.1 & 2 in the above Crime. The Police after investigation has found that the abovesaid Crime are in relation to 3 separate incidents involving each of the above 3 accused persons and the matter has been split up into 3 cases as against each 3 of the accused persons. The cases as against accused Nos.1 & 2 in the abovesaid Crime have been taken to file as C.C.Nos.2586/2018 and 2489/2018 respectively, both on the file of the Judicial First Class Magistrate Court, Kunnamkulam. The offences alleged against the accused in C.C.No.2586/2018 are those punishable under Secs.354A & 509 of the I.P.C. Whereas the offences alleged as against the accused in C.C.No.2489/2018 are ::3:: ## **Crl.MC.No.5817 OF 2019(F)** those punishable under Secs.354 & 509 of the I.P.C. The matters in relation to cases as against accused Nos.1 & 2 have been considered by this Court in Crl.M.C.Nos.5840 & 5841 of 2019 respectively filed by those accused persons. Whereas the case as against the present petitioner (who is the brother of the 3[rd] respondent-victim) is now pending as S.C.No.7/2018 on the file of the Additional Sessions Court-I, Thrissur, for offences punishable under Secs.323, 354, 354A, 509 & 376(2)(f) of the I.P.C and Secs.4 r/w Sec.3, 6 r/w 5(i) (n), 8 r/w 7 of POCSO Act and Sec.23 of the Juvenile Justice Act. The allegation raised against the present petitioner, who is the accused in S.C.No.7/2018 is that the petitioner, who is the brother of the victim, had in the year 2012-13 on several occasions showed his nudity to the de facto complainant, hugged, kissed and inserted his finger to the victim's vagina and thereby committed the abovesaid offences. It is stated that at the time of the alleged incident, the victim was aged 16 years and she is stated to be studying in 8[th] and 9[th] standard. It is stated by the petitioner that he has not committed the offences as alleged. Further it is stated that the 3[rd] respondent-victim is a mentally disabled person suffering from 40% disability as evident from Anx-2 medical certificate issued by the Medical College Hospital, Thrissur. In Anx-3 medical ::4:: ## **Crl.MC.No.5817 OF 2019(F)** certificate it is certified that the 3[rd] respondent-victim is a mentally handicapped person and has 40% permanent impairment in relation to her mental functions and that the condition is not likely to improve, etc. 2. The respondents 4 & 5 are the mother and husband of the 3[rd] respondent-victim. The 4[th] respondent has sworn to Anx-3 affidavit dated 5.7.2019 and the 5[th] respondent has sworn to Anx-4 affidavit dated 17.7.2019 respectively. Therein respondents 4 & 5 have stated that the 3[rd] respondent-victim is a mentally disabled person having 40% mental disability and that abovesaid incidents are wrongly narrated by the 3[rd] respondent on account of her mental problems and that no such incidents have taken place as stated by her, etc. It is in the light of these averments that the petitioner has filed the instant Crl.M.C seeking the following prayers: _“................ to quash Annexure 1 Final Report and all proceedings in SC No.7/2018 on the file of 1[st] Additional District and Sessions Court, Thrissur to secure the ends of justice.”_ 3. Heard Sri.Saijo Hassan, learned counsel for the petitioner, Smt.Priya Shanavas, learned Prosecutor appearing for official respondents 1 & 2 and Smt.S.Lekha, learned Advocate appearing for contesting respondents 3 to 5. ::5:: **Crl.MC.No.5817 OF 2019(F)** 4. The 3[rd] respondent-victim is being represented by her next friend and mother, who is the 4[th] respondent. 4[th] respondent mother has filed Anx-3 affidavit wherein she has stated that the 3[rd] respondent-victim, who is her daughter, is suffering from mental disorder and the same is evident from Anx-2 medical certificate and for various psychiatric treatment needs, the 4[th] respondent-mother used to frequently seek the help of the petitioner herein, who is none other than the brother of the victim as well as the father and mother's brother respectively of the victim, who have also been arrayed as accused in the abovesaid Crime and against which 2 separate CCs as aforestated have been initiated. That many a time the 3[rd] respondent was not willing to go to the hospital and to take care of treatment needs and the 4[th] respondent mother was constrained to seek the help of male members f the family, like victim's father, mother's brother and the petitioner herein, who is her brother and that many a time, the 3[rd] respondent was not prepared to go to the hospital especially when she had severe problems and the abovesaid persons had to use extra force to take her to the hospital and this led to the situation by which the 3[rd] respondent misunderstood as if the help given by the petitioner, her father and mother's brother to take her to the hospital is to ::6:: ## **Crl.MC.No.5817 OF 2019(F)** harm her and she developed animosity towards them and this has prompted her to give such complaints before the school authorities which led to the registration of the instant crime. The school authorities are under the impression that if they do not report the incidents, they may be implicated in criminal proceedings for having not reporting the offences as per the provisions in Secs.19 & 21 of the POCSO Act. Similar averments are also made by the 5[th] respondent, who is the husband of the victim as can be seen from Anx-4 affidavit dated 17.7.2019. Further, both of them have stated that during the lucid intervals the 3[rd] respondent behaved perfectly normal and she has no issues with the petitioner and others and during the lucid intervals she even used to regret and sadden by the whole incidents, whereby her close relatives have been arrayed as accused at her instance. Further respondents 4 & 5 have stated in the affidavit that no such incidents as given by the complainant have been occurred and that the abovesaid complaints have been made by the victim on account of the mental illness of her, etc. More crucially, they have also stated that even the Police authorities themselves have clearly stated in the impugned Anx-1 Final Report that they have obtained a report from the expert team of Psychiatric Department of the Government Medical College Hospital, Thrissur, ::7:: ## **Crl.MC.No.5817 OF 2019(F)** about the mental illness of the 3[rd] respondent-victim. Accordingly, it is pointed out by the petitioner that the further continuance of the impugned criminal proceedings will amount to grave abuse of the process of the court and even the very close family relative of the 3[rd] respondent like respondents 4 & 5, who are the mother and husband of the victim have stated the correct facts. Respondents 4 & 5 have also stated in Anx-3 & 4 affidavits that continuance of the impugned criminal proceedings would be abuse of the process of the court and that this Court may, in the interest of justice, quash the impugned criminal proceedings as against the petitioner herein as well, etc. 5. It is by now well settled that ordinarily serious offences including the one as per Sec.376 of the I.P.C may not be amenable for quashment on the ground of settlement between the parties by exercising the powers conferred under Sec.482 of the Cr.P.C. {see _**Shimbhu & Anr. v. State of Haryana**_ [2014 (13) SCC 318], _**Parbatbhai Aahir v. State of Gujarat**_ [ _(_ 2017) 9 SCC 641], _**Anita Maria Dias v. State of Maharashtra**_ [(2018) 3 SCC 290], _**Sebastian @ Solly v. State of Kerala**_ [2015 (1) KLJ 384, etc.}. However, the main case put up by the petitioner is not only that the matter may be quashed on the basis of settlement but that the ::8:: ## **Crl.MC.No.5817 OF 2019(F)** continuance of the impugned criminal proceedings would be an abuse of the process of the court. Further it is pointed out by the petitioner that even if the matters are permitted to be continued, the very close relatives of the victim, who are the mother and husband themselves have candidly submit the true evidence and evidence of such nature would inevitably lead to acquittal of the accused persons and that continuance of the impugned criminal proceedings would lead to unnecessary trauma on the petitioner and would be an abuse of the process of the court. 6. A bare reading of the impugned Anx-1 Final Report would show that the Police themselves have stated that they have obtained a report from a team of experts of the Psychiatric Department of the Government Medical College Hospital, Thrissur, about the mental disability of the 3[rd] respondent-victim. In the light of these aspects, prima facie, this Court is of the view that there is force in the contention of the petitioners. But this Court has to keep in mind the allegations are made in relation to serious offence as per Sec.376 of the I.P.C and the corresponding provisions in the POCSO Act. The allegation is that the petitioner, who is the brother of the 3[rd] respondent has exposed his nudity to her, ::9:: ## **Crl.MC.No.5817 OF 2019(F)** hugged and kissed her and inserted his finger to the victim's vagina and thereby he has committed the offences, etc. 7. This Court as per separate common order rendered today (30.8.2019) in Crl.M.C.Nos.5840 & 5841 of 2019 has quashed the separate criminal proceedings as against the father and mother's brother respectively of the victim. The offences disclosed in the said cases are not serious compared to the present case. After hearing both sides and after careful evaluation of the facts and circumstances, this Court is of the considered view that instead of straight away quashing the impugned criminal proceedings, the matter could be directed to be properly and effectively examined in a further investigation that should be conducted by the investigating agency concerned. This Court is so inclined to order, in view of the fact that this is the first round of challenge to the impugned criminal proceedings. 8. Accordingly, it is ordered that the District Police Chief concerned will ensure that further investigation in respect of the above case in S.C.No.7/2018 is effectively done by a superior officer not below the rank of Dy.S.P/ACP. In the further investigation it should be ensured that the matter should be ::10:: **Crl.MC.No.5817 OF 2019(F)** properly investigated and statements of close family members like respondents 4 7 5 may be taken by the Police under Sec.161 of the Cr.P.C and if necessary by Sec.164 statement of respondents 4 & 5 may also be taken. The impact of Anx-2 disability certificate as well as the report of the team of expert of the Psychiatric Department of the Government Medical College Hospital, as referred to in the impugned Final Report should be properly and seriously considered by the investigating agency. The Police authorities has to bear in mind the aspect that function of the Police is not merely to mechanically charge sheet the person who is arrayed as accused in the FIR and its function is essentially to ensure that truth of the matter is brought out so that innocent persons are not unnecessarily harassed and indicted in criminal proceedings and so that persons who are guilty be booked but by following the due process of law. The duty so cast on the Police is heavy and the abovesaid aspects borne out from Anxs-3 & 4 affidavits of respondents 4 & 5 as well as Anx-2 mental disability certificate, etc., should be properly considered and necessary and effective further investigation should be done. After such further investigation, the Investigating Officer may also consult and seek ::11:: ## **Crl.MC.No.5817 OF 2019(F)** the advice of Director General of Prosecution and should also examine all aspects of the matter including the crucial aspects as to whether it is really worthwhile for continuing the impugned criminal proceedings and whether it would amount to abuse of the process of the court. After completing necessary formalities, further investigation should be finalised and supplemental Final Report should be filed by the investigating agency before the Additional Sessions Court-I, Thrissur, which is dealing with S.C.No.7/2018. Further investigation should be duly completed and the supplemental Final Report should be submitted without much delay, preferably within a period of 3-4 months from the date of production of a certified copy of this judgment. Thereafter if the petitioner has any legally justiciable grievances, it is for the petitioner to work out his remedies in the manner known to law. With these observations and directions, the above Crl.M.C will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::12:: **Crl.MC.No.5817 OF 2019(F)** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 CERTIFIED COPY OF THE FINAL REPORT IN SC NO.7/2018 ON THE FILE OF THE COURT OF FIRST ADDITIONAL SESSIONS COURT,THRISSUR.** **ANNEXURE 2 TRUE COPY OF THE MEDICAL CERTIFICATE. ANNEXURE 3 TRUE COPY OF THE AFFIDAVIT FILED BY THE 4TH RESPONDENT. ANNEXURE 4 TRUE COPY OF THE AFFIDAVIT FILED BY THE HUSBAND OF THE DE-FACTO COMPLAINANT.**