Kerala High Court
Anas vs The Director General Of Police on 3 October, 2024
2024:KER:73540
W.P(Crl.)No.933/2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
WP(CRL.) NO. 933 OF 2024
PETITIONER:
ANAS, AGED 30 YEARS
S/O. AURANGAZEB, RESIDING AT TC 8/1107-5, MAITRI NAGAR,
B-25, VALIYAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM
DISTRICT, PIN - 695006.
BY ADVS.
M.KIRANLAL
MANU RAMACHANDRAN
R.RAJESH (VARKALA)
T.S.SARATH
SAMEER M NAIR
SMT.AKHILA B.
SAILAKSHMI MENON
RESPONDENTS:
1 THE DIRECTOR GENERAL OF POLICE
POLICE HEAD QUARTERS, VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695010.
2 THE CITY POLICE COMMISSIONER, THIRUVANANTHAPURAM,
POLICE GROUND, CV RAMAN PILLAI ROAD, PANAVILA, THYCAUD,
THIRUVANANTHAPURAM, KERALA, PIN - 695014.
3 THE COMMISSIONER OF POLICE, KOZHIKODE CITY,
PALAYAM, KOZHIKODE, KERALA, PIN - 673004.
4 THE SUPERINTENDENT OF POLICE
DISTRICT CRIME BRANCH, RAM MOHAN ROAD,
KOZHIKODE, PIN - 673004.
BY ADVS.
GOVERNMENT PLEADER SRI M.P.PRASANTH
ADVOCATE GENERAL OFFICE KERALA
DIRECTOR GENERAL OF PROSECUTION(AG-10)
SHRI.P.NARAYANAN, SPL. G.P. TO DGP AND ADDL. P.P. ()
SHRI.SAJJU.S., SENIOR G.P.()
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
11.09.2024, THE COURT ON 03.10.2024 DELIVERED THE FOLLOWING:
2024:KER:73540
W.P(Crl.)No.933/2024 2
A. BADHARUDEEN, J.
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W.P(Crl.) No.933 of 2024
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Dated this the 3rd day of October, 2024
JUDGMENT
This Writ Petition has been filed by the sole accused in Crime No.35/2024 of Cusba Police Station, Kozhikode, (originally crime was registered by the Medical College Police Station, Thiruvananthapuram City, later transferred to Cusba Police Station, Kozhikode) alleging commission of offences punishable under Section 354A(1)(i), 354A(2), 342 and 509 of the Indian Penal Code (`IPC' for short); Sections 8, 7 and 10 r/w Section 9(p) of Protection of Children from Sexual Offences Act (`POCSO Act' for short) and Sections 3(2)(va) and 3(1)(w)(i) of Scheduled Case/Scheduled Tribe (Prevention of Atrocities) Act, 1989 (`SC/ST Act' for short. The prayers in the Writ Petition are as under:
"1. To issue such other appropriate writ, order or direction in the form of certiorari, call for the documents leading to the final report in this case and to set aside the same.
2024:KER:73540 W.P(Crl.)No.933/2024 3
2. To issue such other writ, order or direction in the form of mandamus directing the State Police Chief to issue orders to form appropriate team by the District Crime Branch and make a fair investigation in the Crime No.35/2024 registered by Kozhikode Cusba Police.
3. To issue such other writ, order or direction to stay the further trial of SC.370/2024 on the files of Fast Track Special Court, Kozhikode."
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Scrutinised the records.
3. The prosecution allegation herein is that on 11.11.2023 when the victim and other students went for Karate Championship held in Kozhikode, the petitioner, who is their Karate Instructor, sexually harassed the victim after taking her to a room knowing that the victim belonged to Scheduled Caste community. The specific allegation is that the accused herein, who doesn't belong either to Scheduled Caste or Scheduled Tribe community, knowing that the victim is a member of Scheduled Caste community, forcefully took the victim to a room while they were staying at a hotel in connection with Karate Championship and kissed her on lips repeatedly with sexual intent and thereby committed the above offences.
4. At the time of hearing, the learned counsel for the 2024:KER:73540 W.P(Crl.)No.933/2024 4 petitioner specifically pointed out Grounds J, O, P, Q, R and S as reasons to seek the reliefs in this Writ Petition. The same are as under:
"J. Petitioner submits that the allegations levelled in the complaint against the petitioner are concocted and this is done on the basis of a severe criminal conspiracy that have been hatched by few Karate instructors who are inimical terms with the petitioner. The petitioner submits that the victim girl was in continuous touch with the petitioner during the period between 11.11.2023 and 28.12.2023, the petitioner had handed over their mobile phone to the investigation officer and the police was convinced that the facts narrated by the petitioner was convincing and believable.
O. The petitioner submits that the victim had a love affair with one of the students in the Karate class named as Adithyan, when the petitioner had warned them for not having, such relationship at Karate classes, the victim girl as well as the above mentioned Adithyan were not in good terms with the petitioner. This difference of opinion between the petitioner as well as the victim, was mis utilized by certain people who wanted to have an unfair victory over the petitioner.
P. The petitioner had interacted with Mr.Adithyan who was in affair with the victim girl and the above said Adithyan had divulged to the petitioner that, he had asked the victim to give a voice message to Mr. Rishikesh at the Karate school. This Adithyan also acts that he had instructed Rishikesh to record a voice message of the victim on the instruction of Mr.Ajith and Joy Varghese. This disclosure of Mr. Adithyan was recorded by the petitioner in his 2024:KER:73540 W.P(Crl.)No.933/2024 5 mobile phone and the said recording was also handed over to the police during the course of investigation which the police conveniently discarded.
Q. The continuous chats between the petitioner and the victim and the petitioner having handed over the mobile phone to the Cyber police during the course of investigation and when the petitioner participated for the interrogation would reveal that the petitioner falsely implicated in a criminal case without any bonafide and the police have failed thoroughly to make a proper investigation in a matter which has got serious allegation against the petitioner.
R. The petitioner submits that without making a proper investigation the police have filed a final report before the jurisdictional court. The opportunity of the petitioner to produce defense evidence at the time of trial and having the matter investigated in a fair manner protecting the right of fair investigation, of the petitioner are two distinct things. Suffering the trauma of passing through the stages of trial, is by itself a punishment for a common man who has never experienced any proceedings in a court. The right of fair investigation is an integral part of the fair trial and it cannot be separated from each other. A fair trial can be ensured only if there is a fair investigation. A faulty investigation which has falsely implicated an innocent man straight away curtails the right guaranteed to the person Article 21 of the Constitution of India."
5. Opposing interference in the final report and also opposing any sort of further investigation in this matter, the learned Public prosecutor would submit that going by the statement given by the victim 2024:KER:73540 W.P(Crl.)No.933/2024 6 recorded as on 27.12.2023, without much delay, the allegation of sexual assault has been stated specifically and on investigation also, the same was found in the affirmative. Accordingly, final report was filed alleging commission of the said offences. Now the attempt of the petitioner is to stall the trial in a case which has been pending as S.C.No.370/2024 before the Fast Track Special Court, Kozhikode.
6. Coming to the grounds specifically pointed out by the learned counsel for the petitioner to grant the reliefs, it is to be noted that the same are to the effect that there was criminal conspiracy hatched between a few Karate Instructors, who were in inimical terms with the petitioner, and the victim, who was in continuous touch with them, and as the outcome of the same, a false complaint against the petitioner had been lodged. Further the victim had a love affair with one An (pseudonym), one of the students in the Karate class, and when the petitioner warned the victim and An, not to maintain the relationship, the victim and An, were not in good terms with the petitioner and this difference of opinion between the petitioner and the victim is the reason to lodge this complaint. Another contention is that the continuous chats between the petitioner and 2024:KER:73540 W.P(Crl.)No.933/2024 7 the victim were handed over to the Cyber police. During the course of investigation a thorough investigation was not conducted. It is submitted further that there was no fair investigation and fair investigation is the integral part of a fair trial guaranteed by the Constitution of India. Therefore, reliefs sought for are liable to be granted.
7. While considering the rival submissions, I have gone through the FIS recorded by the Women Cell, Thiruvananthapuram City, dated 26.12.2023. As per the FIS participation of the victim in the Karate Championship held on 11.11.2023 along with other students and the accused were disclosed. Their journey to Kozhikode on 09.11.2023 in an Alto car their arrival in Kozhikode at 1 a.m on 10.11.2023 and their stay at a hotel therein were disclosed. The specific allegation is that, on 11.11.2023, when the victim along with her friend At (pseudonym) reached the room, in order to take the guards the accused was standing in front of the room. When she came out with At with guards, the accused sent out At and caught hold on the victim's hand and brought her inside the room and locked the room. Thereafter he moved the victim abutting the wall and kissed on her lips repeatedly with sexual intent. She could 2024:KER:73540 W.P(Crl.)No.933/2024 8 not even make a loud cry and she pushed him back. Soon the mobile phone of the accused rang, immediately he attended the same and left the place. She laid up in the room and thereafter returned to home on 12.11.2023. This incident made her mentally weak and she refused to go to attend the Karate class. She also stated that though her father also accompanied them to Kozhikode, she did not disclose the same because of the mental strain and to avoid quarrel between her father and the accused. Later, when R (pseudonym) Master enquired about her absence in the Karate classes, she disclosed the occurrence and in turn R Master instructed her to disclose the same to her family and accordingly she disclosed the same to her mother. Going by the final report it is discernible that in the 164 statement also, the victim disclosed the sexual molestation in terms of the 161 statement.
8. However, it is argued by the learned counsel for the petitioner that statements of none of the occurrence witnesses recorded by the Investigating Officer and thus the investigation is not fair. Addressing this contention, when the prosecution records are perused with reference to the statements of the victim, it is discernible that the act of molestation was 2024:KER:73540 W.P(Crl.)No.933/2024 9 inside a room and the persons present in the room at the time of occurrence were the victim and the accused, and no others present therein. Therefore no possibility for any eye witness/es to the occurrence and therefore this challenge is found to be not acceptable to prudence. That apart, the contention raised by the petitioner that this case is outcome of conspiracy hatched between some other Karate trainees at one end and the same is the result of his warning to the victim and An to stop the relationship seem to be contradictory. In fact, the final report would show that the police effectively investigated the crime and on finding that the allegations are true, final report was filed. Thus it appears that the police effectively investigated the crime and the entire prosecution case solely rests on the statements of the victim disclosing the ingredients to attract the offences alleged against the petitioner and it could not be held that final report suffers from any illegality. Similarly it could not be held that the investigation which led to filing of final report is in any way vitiated and further investigation as sought for herein is necessary. Therefore, this petition filed with a view to stall the trial unnecessarily must fail and is accordingly dismissed.
2024:KER:73540 W.P(Crl.)No.933/2024 10 Registry shall forward a copy of this judgment to the jurisdictional court for information and further steps.
Sd/-
A. BADHARUDEEN, JUDGE rtr/ 2024:KER:73540 W.P(Crl.)No.933/2024 11 APPENDIX OF WP(CRL.) 933/2024 PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE FIR IN CRIME NO.35/2024 REGISTERED BY KOZHIKODE CUSBA POLICE STATION.
Exhibit P2 THE TRUE COPY OF THE FIR IN CRIME NO.1754/2023 REGISTERED BY MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM CITY.
Exhibit P3 A TRUE COPY OF THE COMPLAINT GIVEN BY THE PETITIONER'S WIFE TO THE DIRECTOR GENERAL OF POLICE DATED 08.01.2024.
Exhibit P4 A TRUE COPY OF THE POSTAL RECEIPT EVIDENCING THE DISPATCH OF THE COMPLAINT DATED 08.01.2024.
Exhibit P5 A TRUE COPY OF THE BAIL APPLICATION IN
B.A.433/2024 BEFORE THIS HON'BLE COURT.
Exhibit P6 A TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN
BAIL APPLICATION NO.433/2024 DATED 24.01.2024. Exhibit P7 THE TRUE COPY OF THE WHATSAPP CHAT BETWEEN THE PETITIONER AND THE VICTIM GIRL.
Exhibit P8 THE PHOTOGRAPH, TAKEN BY THE INSTRUCTORS, OF THE PARTICIPANTS IN THE SAID COMPETITION.
Exhibit P9 A TRUE COPY OF THE SCREENSHOT EVIDENCING THE TRANSFER OF RS.3000/- FROM THE ACCOUNT OF THE PETITIONER TO THE ACCOUNT OF THE FATHER OF THE VICTIM.
Exhibit P10 A TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER TO THE DIRECTOR GENERAL OF POLICE DATED 07.02.2024.
Exhibit P11 A TRUE COPY OF THE PETITION SENT BY THE PETITIONER TO THE HON'BLE CHIEF MINISTER OF KERALA DATED 02.06.2024.
Exhibit P12 A TRUE COPY OF THE FINAL REPORT IN CRIME NO.35/2024 REGISTERED BY CUSBA POLICE, KOZHIKODE.