Unnikrishnan R. v. Sub Inspector of Police, Kurathikadu Police Station, Alappuzha District, and The Public Prosecutor, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941** **CRL.MC.NO.7831 OF 2019(H)** **SC 198/2016 OF SPECIAL COURT UNDER POCSO ACT, ALAPPUZHA CRIME NO.5/2016 OF KURATHIKADU POLICE STATION, ALAPPUZHA** ## **PETITIONER/1ST ACCUSED:** **UNNIKRISHNAN R., AGED 44 YEARS, S/O.RAJAN, KARROOR THEKKATHIL, CHERAVALLY, KAYAMKULAM.** **BY ADVS. SRI.P.SREEKUMAR, SRI.K.ARJUN VENUGOPAL SHRI.ASWIN KUMAR M. J., SMT.HELEN P.A. SRI.SHAHIR SHOWKATH ALI** ## **RESPONDENTS/COMPLAINANT:** **1 SUB INSPECTOR OF POLICE, KURATHIKADU POLICE STATION, ALAPPUZHA DISTRICT-688001. 2 THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ------------------------------------Crl.M.C. No. 7831 of 2019 ------------------------------------Dated this the 19[th] day of November, 2019 ## O R D E R The prayers in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. are as follows: “ _i. Set aside the order dated 19.10.2019 passed in S.C. No.198/2016 before Additional Sessions Court-I, Alappuzha and to permit the petitioner to cross examine the witnesses effectively and ii. To mould and grant any other reliefs as is deemed fit by this Hon'ble Court in the interest of justice.”_ 2. Heard Sri.P.Sreekumar, learned counsel appearing for the petitioner (A1) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondents. 3. The present petition is the 4[th] petition filed by the petitioner accused in respect of the conduct of the very same crime. Anxs.A1 to A4 are the previous orders passed by this Court in the petitions filed by the petitioner either seeking transfer of the case or under Sec.482 of the Cr.P.C., or under Article 227 of the Constitution of India. Anx.A4 order would be more relevant for the purpose of consideration of impugned ordre at Anx.A7. This Court as per Anx. A4 order dated 19.2.2019 in Crl.M.C. No. 122/2019 filed by the Crl.M.C. No. 7831 of 2019 ..3.. petitioner herein has found in paragraph No.6 thereof that none of the witnesses have been cross examined by the counsel for the petitioner. 4. This Court has further held that after adverting to the decision of the Supreme Court in _**Nipun Saxena and Another v. Union of India and Others [2019 (1) KHC 199]**_ as well as the judgment of the Calcutta High Court in _**Bijoy @ Guddu Das v. The State of West Bengal [2017 KHC 3549]**_ has noted that as per those directions it was open to the presiding officer of the Special Court dealing with POCSO Cases to call upon the defence to submit its questions relating to the incident during the cross examination in writing to the Court and the latter shall put such questions to the victim in a language which is comprehensible to the victim and in a decent and non-offensive manner. This Court held that there is no justification to set aside the entire trial proceedings and in ordering a _de novo_ trial as requested by the petitioner. But that the accused is certainly entitled to a fair trial. 5. Accordingly this Court had specifically directed in paragraph No.7 of Anx.A4 order that if as a matter of fact the records Crl.M.C. No. 7831 of 2019 **==> picture [19 x 9] intentionally omitted <==** reveal that the petitioner herein (A1) has not been granted an opportunity to cross examine the witnesses, then the same should necessarily be granted by the special court concerned. This Court had also observed that the learned Sessions Court Judge who is presiding over the Special Court shall consider the grievance of the prosecution and the accused and devise a mode to ensure that no prejudice is caused to either sides. This Court has also observed that while considering the application if any filed by the accused, the Special Court shall take note of the unfortunate series of events which took place earlier and take appropriate remedial measures in that regard. Thereafter the petitioner has filed Anx.A5 application for recalling the prosecution witnesses Nos. 1 to 15 for the purpose of cross examination. The plea made by the petitioner in Anx.A5 is that the Court below should discard the cross examination of PW1 already recorded as that of the petitioner and recall PW1 to PW15 for the purpose of cross examination and permit the petitioner to cross examine them. The Special Court in paragraph No.7 of the impugned Anx.A7 order has noted that this Court has already found in paragraph No.6 of Anx.A4 order herein that none of the witnesses Crl.M.C. No. 7831 of 2019 **==> picture [18 x 9] intentionally omitted <==** have been cross examined by the counsel for the petitioner accused, and that the main grievance of the accused was that the predecessor Judge has used a questionnaire which was ordered to be submitted and put those questions to the girl in cross examination. 6. Sri.P.Sreekumar, learned counsel appearing for the petitioner would submit that the main complaint of the petitioner is that as a matter of fact the predecessor Judge had taken the questionnaire in advance from the counsel for the petitioner and given a copy of the questionnaire to the Prosecutor in advance. The questionnaire was received by the Court and the Prosecutor on 16.3.2018 whereas the actual cross examination of the child witness had taken place only on 5.1.2019, and that the learned Judge had asked the said questions in cross examination and had recorded the deposition given by the child witness. The contention of the petitioner is that the said act of the Court below in giving advance copy of the entire questionnaire to the Prosecutor well in advance would be highly detrimental to the interest of defence, inasmuch as the prosecutor will be able to understand the defence strategy and accordingly will be in a position to tutor the witness in that manner. Crl.M.C. No. 7831 of 2019 ..6.. 7. Now the Special Court concerned has passed the following directions in paragraph No.8 of impugned Anx.A7 order which reads as follows: - “ - _(a) Counsel for the first accused Sri.P.Roy is not allowed to ask any questions, which are already answered by PW1._ - _(b) Counsel shall not permit aggressive questioning or character assassination of the girl and ensure the dignity of the girl is maintained throughout her examination._ - _(c) Learned counsel is permitted to conduct further cross examination by asking maximum 10-12 questions, pertaining to FIS and statements recorded u/ss.161 and 164 of the Cr.P.C._ - _(d) Only relevant questions are permitted to ask in further cross examination._ - _(e) It is further directed that, communicate the questions which are permitted to ask the prosecutrix through the court as provided u/s.33(2) of the POCSO Act. ”_ 8. After hearing both sides and it is only to be held that the matter in issue is covered by Anx.A4 order already rendered by this Court on 19.2.2019 in Crl.M.C.No. 122 /2019. The Special Court will ensure that there is strict compliance not only in letter but also in spirit of the various directions issued by this Court in Anx.A4, more particularly in paragraph No.6 thereof, wherein it has been found that none of the witnesses have been cross examined by the counsel appearing for the petitioner and which aspect has also been noted by Crl.M.C. No. 7831 of 2019 **==> picture [18 x 9] intentionally omitted <==** the Special Court in paragraph No.7 of the impugned Anx.A7 order. Accordingly it is ordered that, the court below will permit the defence to cross examine afresh witnesses concerned including PW1. Needless to say, the counsel for the defence shall not indulge in any aggressive questioning or character assassination of the minor victim girl and it should be ensured by the counsel for the defence that dignity is accorded to the child victim throughout examination. 9. In the process of cross examination, the court below and the parties concerned including the advocates should ensure that the directions already made by this Court in paragraph No.6 of Anx.A4 order should be strictly adhered to. In other words, this Court has already made it clear that it is certainly open to the presiding officer to call upon the defence to submit his questions relating to the said incident during cross examination in writing to the Court, the Court in turn shall question the victim in a language which is comprehensive to the victim, and in a decent and non offensive manner, and in such a manner the cross examination may be conducted afresh. But such questions need Crl.M.C. No. 7831 of 2019 ..8.. not be given to the Prosecutor in advance. 10. The further direction made by the Court below in Direction No. 'c' of paragraph No.8 of Anx.A7 order that the maximum number of questions that can be put by the defence is upto 10 to 12, etc pertaining to FIS and statements recorded under Secs.161 and 164 of the Cr.P.C., etc are not proper and correct and the same will stand interdicted. However, the counsel for the defence should show all sense of responsibility to ensure that unnecessary questions are avoided and only highly relevant questions are asked, and the dignity of the child victim is maintained throughout the abovesaid process. The Court below should permit the defence to put such questions which are otherwise reasonable and relevant, and the Court below shall not unnecessarily curtail the precious right of the defence in that regard. 11. Further direction in Clause 'd' of paragraph No.8 of Anx.A7 order that only relevant questions should be asked in cross examination, is very obvious and so does not require any over-emphasis. Crl.M.C. No. 7831 of 2019 ..9.. 12. Direction No.'e' of paragraph No.8 of Anx.A7 order that the defence should communicate the questions which are permitted to ask to the presecutrix through the Court as per Sec.33(2) of the POCSO Act, etc, is proper and correct, and is fully in accordance with the directions already made by this Court in paragraph no.6 of Anx.A4 order. 13. Before parting with this case, this Court would only hope and trust that the Special Court would take all necessary steps to ensure that the confidence and trust of both the accused and the prosecution in the fairness of the adjudication process is raised so that further unnecessary complaints could be avoided. The counsel for the defence is also expected to rise up to the occasion and to show all sense of responsibility, so that the administration of justice could be carried out by the Court in a just and fair manner. Both the defence counsel and the learned Prosecutor may bear in mind that they are not only the respective counsel for the party concerned, but also are responsible officers of the Court as well. 14. The Registry will forward a copy of this order to the Crl.M.C. No. 7831 of 2019 **==> picture [24 x 7] intentionally omitted <==** Addl. Sessions Court notified to deal with POCSO Cases, Alappuzha, who is dealing with Sessions Case S.C. No.198/2016 for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 7831 of 2019 ..11.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE ORDER IN RR P(CRL) NO.34 OF 2018. ANNEXURE A2 A TRUE COPY OF THE ORDER DATED 31.10.2018 OF THIS HON'BLE COURT IN CRL.MC.NO.6092 OF 2018. ANNEXURE A3 A TRUE COPY OF THE ORDER IN TR P(CRL.)NO.149 OF 2018 DATED 19.2.2019. ANNEXURE A4 A TRUE COPY OF THE JUDGMENT IN CRL.M.C.NO.122 OF 2019 DATED 19.2.2019. ANNEXURE A5 A TRUE COPY OF THE PETITION IN CRL.MP.NO.4350 OF 2019 FILED BY THE PETITIONER. ANNEXURE A6 A TRUE COPY OF THE ORDER DATED 5.7.2019 IN CRL.MP.NO.4350 OF 2019. ANNEXURE A7 A TRUE COPY OF THE ORDER DATED 19.10.2019 ISSUED BY THE SESSIONS COURT IN SC.NO.198 OF 2016.**