X v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 9[TH] DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943 CRL.REV.PET NO. 295 OF 2021** **(AGAINST THE ORDER IN CRL.M.P. NO.2/2020 IN SC NO.549/2018 ON THE** **FILE OF HON'BLE FAST TRACK SPECIAL COURT-(POCSO) ALUVA DATED 25-03-2021)** ## **REVISION PETITIONER/ACCUSED:** **X AGED 36 YEARS X BY ADV M.J.SANTHOSH** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REP.BY THE CIRCLE INSPECTOR OF POLICE, NEDUMBASSERY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **ADV.C.SEENA – PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.REV.PET NO. 295 OF 2021 2 ## **ORDER** Dated this the 9[th] day of September, 2021 The Revision Petition has been filed under Sections 397 & 401 of Cr.P.C. against the order in Annexure A3, the petition for discharge filed by the petitioner/accused under Section 227 Cr.P.C. 2. Petitioner has been charge sheeted in Crime No.784/2016 of Nedumbassery Police Station. Four separate final reports were filed on the basis of period of occurrence. The cases were taken on file as SC No.548/2018, 549/2018, 550/2018 and 551/2018. The period covered in SC No.548/2018 is from 01.06.2012 to 30.5.2013 and in SC No.549/2018, the period from 31.5.2013 to 30.5.2014 and in S.C. No.550/2018, the period from 31.5.2014 to 30.5.2015 and in SC No.551/2018, the period from 31.5.2015 to 30.5.2016. Trial in S.C. No.548/2018 has already been started at Sessions Court (POCSO) at Ernakulam. 3. The prosecution case is that the accused who is a close relative and neighbour of the minor victim aged 10 years committed rape on her continuously, including penetrative CRL.REV.PET NO. 295 OF 2021 3 sexual assault. She is the daughter of the CW1. It is alleged that the acts were done in the house of the accused in Angamaly Municipality on various days. 4. Petitioner/accused moved the petition for discharge before the Fast Track Special Court-(POCSO) Aluva, and as per the order dated 25-03-2021, in CMP No.3/2020, the Special Judge dismissed the petition for discharge and aggrieved by the same the petitioner came up before this Court in revision. 5. The petitioner's counsel relies upon **Union of India v. Prafulla Kumar Samal and Anr. 1979 (3) SCC 4** Para 10 reads as follows: _10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:_ _1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out._ _2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial._ _3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and_ CRL.REV.PET NO. 295 OF 2021 4 _large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused._ _4) That in exercising his jurisdiction under Section 227 of the Code the judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial._ 6. The function of Judge while considering an application under Section 227 of Cr.P.C. for discharge was being dealt with in **Dilawar Balu Kurane v. State of Maharashtra 2002(2)SCC 135** Para No.12 of the said judgment is relevant to be extracted which reads thus: _“12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been property explained the court will_ CRL.REV.PET NO. 295 OF 2021 5 _by fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. [See Union of India versus Prafulla Kumar Samal & Another (1979 3 SCC 5)].”_ 7. In **Sajan Kumar v. Central Bureau of Investigation 2010 (9) SCC 368** Para No.21 the principle that has to be followed while exercising jurisdiction under Sections 227 and 228 Cr.P.C. has been dealt with in detail ## which reads thus: _“ 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:_ _(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case._ _(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a_ CRL.REV.PET NO. 295 OF 2021 6 ## _charge and proceeding with the trial._ _(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial._ _(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence._ _(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible._ _(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case._ _(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.”_ ## 8. In **Superintendent and Remembrancer of Legal** ## **Affairs, West Bengal v. Anil Kumar Bhunja and Others** **1979 (4) SCC 274,** the matters to be considered while dealing with Sections 226 and 227 Cr.P.C. has been dealt with Para No.18 of the said judgment is relevant to be quoted which CRL.REV.PET NO. 295 OF 2021 7 ## reads thus: _18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in_ _**State of Bihar** v._ _**Ramesh Singh** , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence._ 9. According to the learned counsel for the petitioner, there is no material to frame charge against the petitioner. The charge in this case is with respect to an incident relating to the period from 31-5-2013 to 30-05-2014. But no specific date has been mentioned. Section 164 Cr.P.C. statement of the victim girl was drawn to my attention, highlighting the CRL.REV.PET NO. 295 OF 2021 8 answer of question No.10 wherein the Magistrate put a specific question as to, from which period onwards this act was being committed, the answer given by the victim girl was from the 1[st] standard onwards. 10. According to the learned counsel for the petitioner, it is not specifically stated that the incident or assault had taken place during the period the girl was in 2[nd] standard also. He would also contend that Section 161 Cr.P.C. statement of the victim has not been produced and apart from this Section 164 Cr.P.C. statement there is no materials whatsoever to frame charge against the petitioner. Victim also has not been cited as a witness in the case. So the learned Sessions Judge went wrong in not discharging the petitioner. 11. Learned Public Prosecutor on the other hand, would contend that apart from Section 164 Cr.P.C. statement, medical evidence has been collected by the prosecution. Annexure A2 copy of the medical examination report has been produced from the side of the petitioner. In the report of the medical examination of the victim, history of sexual assault has been revealed. Petitioner's counsel would contend that it CRL.REV.PET NO. 295 OF 2021 9 was not of the child, but it was victim's mother who had revealed history to the doctor. There is nothing in the medical records to prima facie establish that it is not the statement of the victim that has been recorded by the doctor. Moreover, the medical examination report of the victim girl reveals that the girl was present along with the mother before the doctor and the history of the case has been described to the doctor. It is a fact that has to be ascertained from the Doctor as to has given the history of sexual assault. 12. At this stage, I don't think that it would be proper or just on the part of this Court to come to a conclusion as to whether the alleged statement was given by the victim or her mother. All those factors are yet to be decided during evidence. 13. Though the learned counsel for the petitioner contended that Section 161 Cr.P.C. statement of the victim has not been supplied to him, it is reported by the learned Prosecutor that Section 161 Cr.P.C. statement of the victim has not been taken by the Investigating Officer. Learned counsel also has got a contention that the victim CRL.REV.PET NO. 295 OF 2021 10 has not been cited as a witness. Learned Public Prosecutor also did not have any case that till date the victim has been cited as a witness. The learned Sessions Judge also described that the victim can be cited as a witness at any time. So on an analysis of the materials produced from the side of the petitioner, I am of the view that the impugned order does not suffer from any illegality or irregularity calling for an interference of this Court by exercising the revisional powers. In the result, revision petition stands dismissed. ## **Sd/-** **M.R.ANITHA JUDGE** SMF CRL.REV.PET NO. 295 OF 2021 11 ## **APPENDIX OF CRL.REV.PET 295/2021** |**PETITIONER'S**|**ANNEXURE**| |---|---| |**ANNEXURE A1**|**THE TRUE COPY OF FIR AND FIS IN CRIME**| ||**NO.784/2016 OF NEDUMBASSERY POLICE STATION**| ||**DATED 26.6.2016**| |**ANNEXURE A2**|**THE TRUE COPY OF FINAL REPORT IN S.C.**| ||**NO.549/2018 OF THE HON'BLE ADDL. SESSIONS**| ||**(SPECIAL) COURT, ERNAKULAM.**| |**ANNEXURE A3**|**THE TRUE COPY OF ORDER IN CR.M.P.NO.2/2020**| ||**DATED 25/3/2021 OF THE HON'BLE FAST TRACK**| ||**SPECIAL COURT (POCSO) ALUVA.**| |**ANNEXURE A4**|**THE TRUE COPY OF THE STATEMENT OF THE**| ||**VICTIM U/S164 OF CRPC**| **//TRUE COPY//** **PA TO JUDGE**