XXX v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA, 1943 CRL.MC NO. 4621 OF 2021** **SC 498/2019 OF ADDITIONAL SESSIONS COURT (FOR TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM** ## **PETITIONER/ACCUSED** XXX BY ADVS. M.T.SURESHKUMAR R.RENJITH SREELAKSHMI SABU MANJUSHA K K.NIRMALAN ## **RESPONDENT/STATE** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. PP SANGEETHARAJ.N.R THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 7.12.2021, THE COURT ON 12.01.2022 DELIVERED THE FOLLOWING: Crl.M.C.4621 of 2021 2 ## ORDER ## Dated : 12[th] January, 2022 1. Petitioner is the sole accused in S.C.497/2019 and S.C.498/2019 on the file of Additional Sessions Court (for trial of cases relating to Attrocities & Sexual Violence against Women & Children), Ernakulam arising out of Crime No.434/2019 of Ernakulam Town North Police Station. Crl.M.C has been filed seeking to quash B Charge in the above crime which is pending as S.C.498/2019 or in the alternative to direct the court below to stay the trial on the basis of Annexure-A3 B charge as per Section 224 of the Code of Criminal Procedure, 1973 (in short the Code). 2. Crime No.434/2019 was registered on the basis of First Information Statement furnished by the victim to the police for the offence punishable under Sections 7 and 8 of Protection of Children from Sexual Offences Act, 2012 ( in short PoCSO Act). 3. The alleged prosecution case is that petitioner/accused (hereinafter referred as petitioner) is a Karate instructor. After conducting the karate classes for the children on 2.3.2019 at about 8.00 pm, with the intention and preparation to sexually assault the victim girl,aged 13 years he pressed at her breast and sexually abused her. It is also alleged that after that, at about 8.15 pm on the same day he pressed at the breast of the victim girl aged 12 years from the roof top of J.M.Towers Flat situated nearby Chinmaya School, Vaduthala and thereby committed the offence punishable under Section 354A (2) r/w 354A(i)(1) of Indian Penal Code and Section 8 r/w 7 of PoCSO Act. Crl.M.C.4621 of 2021 3 4. The de facto complainant was 13 years and her sister was of 12 years, on the date of incident. Annexure-A1 is the copy of the FIR and FIS. After completing the investigation, the Sub Inspector of Police, E.T North police station, two final reports as A-charge and B charge were filed before the Special Court under Section 354 IPC and Section 7 r/w 8 and 9 (p) r/w 10 of PoCSO Act and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. After taking cognizance of the offences Special Court numbered the cases as S.C.497/2019 on the basis of A charge and S.C.498/2019 on the basis of B charge. True copy of the final report of A charge and B charge have been produced as Annexure-2 and 3 respectively. 5. In S.C.497/2019, prosecution evidence has been completed and the case now stands posted for recording 313 statements of the petitioner. 6. Trial in B charge also started by examining some of the witnesses. In the meantime, petitioner filed an application under Section 309 r/w 224 IPC seeking for adjournment of trial in B charge till the completion of trial in S.C.497/2019 based on A charge. But that application was dismissed on 6.10.2021. According to the petitioner, continuation of B charge without the termination of trial in A charge would cause serious prejudice to the accused and also would give undue advantage to the prosecution since it could cover the defence taken by the accused during the trial in S.C.497/2019 on the basis of A charge. It is the contention of the learned counsel that, when a charge is containing more than one head, the Court has to stay the enquiry or trial of such charges and court may also permit the prosecution or the complainant to withdraw the charge on other heads. It is further contended that only on setting aside the conviction of the accused, the Court can Crl.M.C.4621 of 2021 4 proceed with the enquiry or trial of the other charges as per Section 224 of the Code. It is further contended that trial on the basis of two final reports for one single incident amounts to denial of fair trial and the proceedings initiated by the trial Court is against the spirit of Section 220 (1) of the Code which specifically provides, if in one series of acts so connected together as to form the same transaction of offence more than one is committed by the same person, he has to be charged with at one trial for every such offence. 7. The learned counsel would also contend that conduct of two trial infringes Section 220(3) of the Code which provides that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force, it has to be tried at one trial for every such offence. He would also rely on Section 219 of the Code which expressly provides that when a person is accused of more offence than one of the same kind, committed within a span of 12 months, from first to last of such offence, whether in respect of the same person or not, he may be charged with and tried for one trial for any number of charges not exceeding three. 8. The charges framed in both cases according to him, would show that it comes under Section 219 (1) and Section 224 of the Code. So the prosecution of the petitioner on the basis of Annexure-A3 (B charge) is in violation of Article 20 (2) of the Constitution of India. 9. Notice was issued to the respondent and respondent appeared through the learned Public Prosecutor. Adv.V.Vinay has been appointed as Amicus Curiae and he filed report. Heard both sides. 10. Learned Amicus Curiae would contend that there is no application of Section 224 of the Code so as to stay the trial in B Crl.M.C.4621 of 2021 5 charge in the present case. Section 240 of the Old Code of Criminal Procedure, 1898 which is identically worded with Section 224 Cr.P.C., was highlighted by him. According to the learned Amicus Curiae, in order to attract Section 224 there should have different heads of charge in the same case and there has to be a conviction in one or more of the charges among the different charges in the same case and Section has no application if two cases which are different and distinct Session’s cases and hence, according to him, petitioner cannot seek for stay of different case which is in progress as B charge. 11. Learned Amicus Curiae drew my attention to the commentries of law on Criminal Procedure by S.C.Sarkar (with all amendments upto 1955) wherein while dealing with Section 240 of the old code corresponding to Section 224 of the new Code it has been specifically provided that the Section permits withdrawal of the other charges if an accused is convicted in one of several charges before the other charges are tried. It only applies where a person is accused of several offences and also where there are charges of several distinct offences and it does not apply where in respect of same acts or series of acts other charges are formally framed. It also emphasized that permission to withdraw one of several charges can be given only where there is joinder of charges against the same person in the same case and not where separate charges of distinct offences are tried separately in different cases. 12. In this context the learned Amicus Curiae relies on **In Re : reference from Tinnevelly Sessions (1946 2 MLJ 243),** wherein three persons were charged by the committing Magistrate under Section 302 and 380 of the Code. When the matter reached before the Crl.M.C.4621 of 2021 6 Sessions Court, the Sessions Judge separated the charges under Sections 302 and 380 of IPC and proceeded only with trial under Section 302 and convicted first and third accused under Section 302 IPC and acquitted the second accused. While the appeal by the accused was pending before the High Court Public Prosecutor withdraw the charge under Section 380 IPC. The High Court held that it had not been proved that third accused was guilty of murder. In its judgment it indicated that it would have convicted the third accused under section 411 of the IPC had it not been for the circumstances that she had already been acquitted of the charge under section 380 IPC and the matter was referred for consideration as to what should be done in future cases of similar nature. While answering the reference, it was held that Sessions Judge did not include charge under Section 380 of IPC, withdrawal of charge would result in acquittal and that would be a bar for re-trial. It is also held that Section 240 would apply with respect to third accused and he could have been re-tried. It is further expressed a doubt whether Section 240 would apply because of omission of the Sessions Judge to include the charge under Section 380 IPC in the revised charge. Hence it was directed that the Sessions Judge when confronted with a mixed charge of murder and offence against property should either take the charge framed by the committing magistrate and adopt it or, if he wishes to change the charge in any way, he should include in the modified charge all the various heads found in the charge of the committing Magistrate to see that terms of Section 240 would apply. It is further directed that the Sessions Judge should not permit withdrawal of other charges by the Public Prosecutor until the appeal time has expired and if an appeal Crl.M.C.4621 of 2021 7 has been filed till the appeal has been disposed of. So the law laid down in the above decision would only emphasis the position that section 240 applies to charges containing more heads than one framed against the same person. 13. Amicus Curiae also relied on **Satya Narain Sinha v. State of Uttar Pradesh (1959 0 AIR (All) 703 = 1959 0 CrLJ 1265 = 1958 0 Supreme (All) 204)** wherein the question arose whether charge framed for an offence of criminal misappropriation committed within a span of two years in a single charge would bar the re-trial of accused after his conviction. In that case Magistrate framed a single charge for two years and that was corrected by the Sessions Court and convicted the accused for two years in an alternate charge of misappropriation during a span of one year for half of the original amount of misappropriation and the Sessions Judge did not proceed with the trial of the remaining period. The appeal by the accused against conviction was dismissed by the High Court. Thereafter prosecution moved the Sessions Court for the trial of second charge for the remaining period and the amount misappropriated during that period. In such circumstances, it was held that the second prosecution cannot be held as illegal and an abuse of process of law nor can it be said as against the interest of justice. It is also held that right to prosecute an offender for committing an offence rests with the prosecuting agency and the Courts are expected to award sentences in a manner which takes every circumstances into account and not to play into the hands of the prosecuting agency. It is also held that even if the case is proved against the offender, the question of determining the amount of sentence is entirely within the discretion of the court and though it Crl.M.C.4621 of 2021 8 cannot stop the prosecution from biting it can remove its teeth. 14. **Saramma Peter v. State of Kerala (1991 (2) KLJ 47 = ILR 1991 (3) (Ker) 92 = 1991 KHC 225)** was also placed reliance on by the Amicus Curiae. But the question for decision in that case was whether application under Section 321 of the Code has to be given from the Assistant Public Prosecutor or the complainant. In paragraph NO.7 of the decision, a passing reference was made with regard to the relevant provisions in the Code relating to withdrawal as Sections 224, 247 and 321 of the Code and it is also found that Section 224 Cr.P.C deals with withdrawal of a main charge on conviction of one of several charges and such withdrawal could be made with the consent of the Court on a motion by the complainant or the officer conducting the prosecution. It is also held that Court could also stay the enquiry into or trial of such charge or charges and it is further found that Section 224 is not relevant in that context. **Saramma Peter'** s case referred above is of not much relevance to the issue in hand. 15. According to the learned Amicus Curiae as per Section 224, right of withdrawal is given to the victim, prosecution and the court and the accused has no right to claim any relief or seek a stay of the proceedings even if it is in the same sessions case. The suggestion so made by the Amicus Curiae is not seems to be fully correct since as per Section 224 Cr.P.C, the power has been given if conviction has been made of one or more of them to the complainant or the officer conducting the prosecution with the consent of the court to withdraw the remaining charges and further that the power of the court is only to stay the enquiry into, or trial of such charge or charges. It further provides that such withdrawal will have the effect of acquittal of such Crl.M.C.4621 of 2021 9 charge or charges unless the conviction is aside and in such case, the court subject to the order of the court setting aside the order of conviction, may proceed with the enquiry with the trial of charge or charges so withdrawn. So the Section is silent with respect to the impact of stay of the enquiry or trial of such charge or charges and the effect of acquittal is given only in the case of withdrawal that expressly is conferred upon the complainant or the officer conducting the prosecution. This aspect has been made more clear in paragraph 7 of **Satya Narain Sinha** 's case referred above wherein it has been categorically found that the withdrawal or stay used in Section 240 cannot be given the same connotation. The relevant portion reads as follows : “.........If the Legislature intended that withdrawal should also include stay made by a trial Court, I fail to see why the Legislature to say that such a withdrawal or stay shall have the effect of an acquittal instead of using the word withdrawal alone. The Legislature has used two different words for the termination of proceedings by two different authorities. It used the word withdrawal when the prosecuting agency does not want to press the remaining charges. It used the word stay when the Court in its discretion does not proceed to try the accused on the remaining charges. It was, therefore conscious of the two different meanings of these two terms and yet in the very next sentence it has used only the word withdrawal and has omitted to add the word stay. I am therefore, of the opinion that where the Court does not proceed with the remaining charges, it does not amount to a withdrawal within the meaning of section 240 CrPC and therefore, such stay cannot Crl.M.C.4621 of 2021 10 operate as an acquittal.” 16. Learned Amicus Curiae in the context of argument of violation of Article 21 of the Constitution of India would contend that the petitioner slept over his rights from the time of framing of the respective charges in both the sessions case and the petition Annexure-A4 filed under Section 309 r/w 224 Cr.P.C was also dismissed on 28.9.2021 and that order remains unchallenged. It is also his contention that any further prolongation of stay of trial directing minor survivors to appear before the Court would be against the spirit of Section 33 of the PoCSO Act. In short, according to Amicus Curiae, Section 224 Cr.P.C has no application and the petitioner cannot seek for stay of proceedings of the B charge (S.C.498/2019) till the disposal of S.C.497/2019. It is also the contention of Amicus Curiae that the proceedings of the lower court would show that A charge case has been posted for examination of the accused under Section 313 on 7.2.2022 and by that time, the prosecution evidence will be over in B charge case and for that reason, the learned Sessions Judge is taking earnest effort to complete the prosecution evidence in B charge and this will not prejudice the prosecution and may protect the accused to preserve his defence under Section 233 Cr.P.C. Amicus Curiae also relies upon **Dinubhai Boghabhai Solanki v. State of Gujrat & Ors (2018 (11) SCC 129)** wherein it has been held that :- “it is in the larger interest of the society that actual perpetrator of the crime gets convicted and is suitably punished. Those persons who have committed the crime, if allowed to go unpunished, this also leads to weakening of the criminal justice system and the society starts losing faith therein. Therefore, the first part of the celebrated dictum Crl.M.C.4621 of 2021 11 “ten criminals may go unpunished but one innocent should not be convicted” has not to be taken routinely. No doubt, latter part of the aforesaid phrase, i.e., “innocent person should not be convicted” remains still valid. However, that does not mean that in the process “ten persons may go unpunished” and law becomes a mute spectator to this scenario, showing its helplessness. In order to ensure that criminal justice system is vibrant and effective, perpetrators of the crime should not go unpunished and all efforts are to be made to plug the loopholes which may give rise to the aforesaid situation. “ 17. Though it is also held that the latter part of the aforesaid phrase, “innocent person should not be punished” remains still valid. But that does not mean that in the process ten persons may go unpunished and law becomes a mute spectator to this scenario, showing its helplessness. It is also held that in order to ensure that criminal justice system is vibrant and effective, perpetrators of the crime should not go unpunished and all efforts are to be made to plug the loopholes which may give rise to the aforesaid situation. Hence, according to the learned counsel, no interference is called for either by way of quashing B charge or staying the trial of B charge with the aid of Section 224 as sought for by the petitioner. 18. Learned Public Prosecutor on the other hand emphasized Section 218 of the Code which provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately. So according to Prosecutor, separate trial for separate charges is the rule and the joinder of charges is an exception. Further he strongly supports the argument advanced by the learned Amicus Curiae and seeks for dismissal of this Crl.M.C. Crl.M.C.4621 of 2021 12 19. Chapter XVII of the code deals with the charge and Part-A deals with form of charges which runs from Sections 211 to 217 and Part-B of Chapter XVII deals with joinder of charges which appears to be more relavant to the resolve the issue on hand. 20. Section 218 as stated earlier, specifically provides that for every distinct offence, against any accused there should be separate charge and every such charge shall be tried separately. The proviso to Section 218 states that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced , the Magistrate may try together or any number of charges framed against such person and sub-section (2) of Section 218 further provides that nothing in sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223. 21. Hence Section 219 to 223 appears as exception to the general rule under Section 218. Section 219 is captioned by the term T **hree** . **offences of same kind within an year may be charged together** Sub-section (1) of Section 219 provides that when a person is accused of more offence than one of the same kind committed within the span of 12 months from the first to last of such offence, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. 22. Section 219(1) no doubt empowers the Court to charge and try an accused for three charges committed within a span of 12 months either with respect to a same person or different persons in one trial. So obviously in the present case, the charge against the petitioner in the two cases is within a time gap of 15 minutes with respect to two persons (victims in A charge and B charge). So the court could have Crl.M.C.4621 of 2021 13 tried the charges against the accused with respect to A charge and B charge in one trial. 23. But in the present case, the records would show that charge was framed as borne out from Annexure-A5 and A6 as early as on 27.2.2021 and the trial in S.C.497/2019 is almost complete and it is posted to 7.2.2022 for examination of accused under Section 313 Cr.P.C. The trial of B charge also has been progressed considerably. So as rightly contended by the learned Amicus Curiae, the petitioner was seeping over his right to get the charges tried together by requesting the Court as per the proviso to Section 218 to try the cases together. 24. It is true that Section 219 (1) of the Code empowers the court to try such charges not exceeding three in a span of 12 months in one trial. But the court also did not opt for a single trial. So the question is whether at this stage, the petitioner is entitled to seek for quashing the proceedings in S.C.498/2019 or insist to complete the proceedings in S.C.497/2019 for getting a withdrawal of the charge in S.C.498/2019. 25. In this context it is relevant to quote Section 224 of the Code which reads as follows :- When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry into, or trial of, such charge or charges and such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said Court (subject to the order of the Court setting aside the Crl.M.C.4621 of 2021 14 conviction) may proceed with the inquiry into, or trial of, the charge or charges so withdrawn.” 26. On a close scrutiny of Section 224 one could understand that it empowers the complainant or the officer conducting the prosecution with the consent of court in a case where charge containing more heads than one is framed against a person and conviction has been had at any one or more of them, to withdraw the remaining charges. So it is obvious that the Section only takes in its sweep when a charge is framed against an accused with respect to a same person since the word with respect to the same person or not as provided under Section 219 (1) of the Code is absent in Section 224 of the Code. In other words, Section 224 of the Code only provides a situation where a charge contains more heads than one against an accused with respect to a single person. For eg., as has been held in (1946 (2) MLJ 243) referred above, two charges under Sections 302 and 380 were there against three accused persons and Sessions Court only proceeded with one of them. If at all the legislature intended the invocation of Section 224 in a case where the offence was committed with respect to more than one person also, it would have been made specific as has been provided in Section 219 (1). 27. In the present case, since the offences of identical nature alleged to have been committed by the petitioner against two victim girls within a time difference of 15 minutes two separate charges were laid against the petitioner as A charge and B charge and the procedure so adopted by the investigating officer can not be said as illegal or improper and hence the prayer to quash B charge pending as S.C.498/2019 is not sustainable. Petitioner could have requested the Crl.M.C.4621 of 2021 15 court for invoking powers under Section 219 (1) for conducting a single trial with respect to these two charges. Without promptly asserting his right at proper time and allowing the trial court to continue trial in two cases separately, petitioner cannot be allowed to seek for stay of S.C.498/2019 (B charge) till the disposal of S.C.497/2019 since this is not a case where charge against the accused is one containing more heads than one, as contemplated under Section 224 of the Code. 28. It is true that the learned counsel for the petitioner would contend that, almost all Sessions courts in the state dealing with offences under PoCSO Act are adopting the same procedure of conducting separate trials against the same person in identical offences within a span of one year where a single trial can be had as per Section 219 of the Code by the trial courts. But it is to be noted that Section 31 of the Code provides that in cases of conviction at one trial of two or more offences, the court can sentence him to such offences to several punishments and such punishments when consisting of imprisonment to commence one after the expiration of the other in such order, as the court may direct since direction to run the punishments concurrently is the discretion of the court. At the same time, proviso to sub-section 2 of Section 31 states that in such cases a person shall be sentenced to imprisonment not for a longer period than 14 years. 29. There may also be cases against same persons indulged in similar offences in a span of one year at different places. So witnesses cited apart from the victim including the official witnesses, will be from different places. Hence a general guidelines cannot be given by this court to conduct a single trial in all cases not exceeding three against Crl.M.C.4621 of 2021 16 the same person in a span of one year. It has to be left to the discretion of trial judges. In appropriate cases it can be done taking into account the gravity of the offences, and convenience of the parties. 30. I place on record the good work done by Sri.V.Vinay, Amicus Curiae. In the result, Crl.M.C dismissed. Sd/- **M.R.Anitha, Judge** Mrcs/ _1.1.22_ Crl.M.C.4621 of 2021 17 ## **APPENDIX OF CRL.MC 4621/2021** |PETITIONER ANNEXURES|| |---|---| |Annexure A1|TRUE COPY OF THE FIR & FIS IN CRIME NO| ||434/2019 OF ET NORTH POLICE STATION DATED| ||9.3.2019| |Annexure A2|TRUE COPY OF THE FINAL REPORT IN A CHARGE| ||DATED 13.5.2019 IN CRIME NO 434/2019| |Annexure A3|TRUE COPY OF THE FINAL REPORT IN B CHARGE| ||DATED 13.5.2019 IN CRIME NO 434/2019| |Annexure A4|TRUE COPY OF THE PETITION FILED BY THE| ||COUNSEL FOR THE PETITIONER ADDITIONAL| ||SESSIONS COURT (FOR TRIAL OF CASES| ||RELATING TO ATROCITIES & SEXUAL VIOLENCE| ||AGAINST WOMEN & CHILDREN) AT ERNAKULAM IN| ||SC NO 498/2019 DATED 13.9.2021| |Annexure A5|TRUE COPY OF THE COURT CHARGE IN SC NO 497| ||OF 2019 DATED 27.2.2021| |Annexure A6|TRUE COPY OF THE COURT CHARGE IN SC NO 498| ||OF 2019 DATED 27.2.2021|