Madras High Court
Kavitha vs State Of Tamil Nadu on 1 April, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P(MD).No.665 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 30.01.2025
Pronounced on : 01.04.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P(MD).No.665 of 2025
Kavitha ... Petitioner
Vs.
1.State of Tamil Nadu,
Through the Superintendent of Police,
Sivagangai District,
Sivagangai.
2.The Deputy Superintendent of Police,
Karaikudi Subdivision,
Sivagangai District.
3.The Deputy Superintendent of Police,
CBCID,
No.7, Kamarajar Nagar, 2nd Street,
Chinnachokkikulam,
Madurai.
4.The Inspector of Police,
All Women Police Station,
Karaikudi,
Sivagangai District.
(In Crime No.8 of 2024)
5.Ramesh @ Shanthinathan ... Respondents
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Crl.O.P(MD).No.665 of 2025
(R5 impleaded as per order dated 30.01.2025
made in Crl.M.P.(MD).No.1391 of 2025)
PRAYER: Criminal Original Petition is filed under Section 528 of
BNSS, to pass an order transferring the investigation in the case in Crime
No.8/2024 on the file of the 4th respondent Police to the 3rd respondent
and the 3rd respondent or any other independent officer, based on the
petitioner’s representation dated 04.07.2024.
For Petitioner : Mr.S.Sabbari Karpura Jothi
For R1 to R4 : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
For R5 : Mr.C.Muthu Saravanan
ORDER
The petitioner/defacto complainant in Crime No.8 of 2024 filed this petition to transfer the investigation in Crime No.8 of 2024 from the file of the 4th respondent to the file of the 3rd respondent based on the petitioner's representation dated 04.07.2024.
2.In the representation, the petitioner narrated about the complaint dated 16.05.2024, based on which a case was registered against one Ramesh. Her primary grievance is that though FIR registered, since the said Ramesh belongs to a dominant community in the area and his 2/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025 brother Sargunam an Advocate, they threatened the petitioner and her family members not to pursue the complaint further and the respondent police not taking any effective action by arresting the accused which further embolden the said Ramesh and his brother Sargunam to continue their threat against the defacto complainant, victim and her family members. Hence, she sent a representation to the Inspector General of Police, Southern region, Superintendent of Police, Deputy Superintendent of Police and Inspector of Police, but no action taken. Hence, the present petition.
3.This Court on 10.01.2025 recorded the following and posted the case on 21.01.2025 for appearance of the petitioner and the witness in the Chambers:
“In this case the mother of the victim has filed a petition seeking transfer of investigation.
2.The learned Additional Public Prosecutor informs that in this case the victim was earlier summoned by this Court when the accused has filed anticipatory bail petition and thereafter there was interaction for quite some time. After interacting with the petitioner, as well as the victim and safety of the 3/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025 victim and also after taking steps to provide her compensation through Government thereafter anticipatory bail was granted. Thereafter the victim was examined yesterday before the trial Court and she had turned around and not supported the case of prosecution.
3.In view of the same this Court needs to interact with the petitioner what has happened and why this petition has been filed on the other hand the witness has turned hostile and to ascertain whether the witness is free to depose before the trial Court.
4.Hence the petitioner and the witness are directed to appear before this Court on 21.01.2025 at 2.30 pm., in the chamber.
5.Till such time, the Protection of Children from Sexual Offences Court, Sivagangai is directed not to pronounce judgment in the case in Crime No.8 of 2024.”
4.On her appearance, the victim who is a minor aged about 16 years gave written representation narrating how she and her family members were constantly followed and threatened, thereafter fearing for their life, limb and security, they resiled from earlier statement. 4/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025
5.The learned counsel for the fifth respondent submitted that when he moved an anticipatory bail petition before this Court in Crl.O.P. (MD).No.19378 of 2024 and a quash petition in Crl.O.P.(MD).No.14839 of 2024, both the petitions were disposed of on 13.12.2024 dismissing the quash petition on the other hand granting anticipatory bail to the said Ramesh and thereafter, trial commenced. On 09.01.2025, the victim/minor girl was examined as P.W.1, her mother examined as P.W.2 and the victim's elder sister examined as P.W.3 All the three witnesses not supported the case of the prosecution. In fact, the victim girl in her evidence states that her parents borrowed loan from the Finance Company owned by the said Ramesh, since they were unable to repay the loan along with interest and there was some dispute, suppressing this fact a complaint was lodged against him. The victim deposed that she is not aware what is written in the complaint and in the 164 Cr.P.C. statement she deposed that presently she is unable to recollect as to what she had stated and what is recorded. The victim's signature found in the 164 Cr.P.C statement alone marked as Ex.P1, her date of birth 14.12.2008 recorded in the Birth Certificate marked as Ex.P2 and the admitted portion of 164 statement marked as Ex.P3. The mother of the victim, 5/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025 P.W.2 confirms the loan of Rs.2,00,000/- borrowed from the Finance Firm owned by Ramesh, her inability to pay the loan along with interest and lodging of the complaint. This witness states that she is not aware as to what is written in the complaint and her signature alone marked as Ex.P4. The victim's elder sister/P.W.3 confirms about the loan, their inability to repay the loan and lodging of the complaint. Thus, a dispute with regard to repayment of loan and demand for interest manifested, given a criminal colour, taking advantage of the victim's age, who is a minor and sexual assault complaint lodged under POCSO Act.
6.The learned counsel further submitted that in this case neither the said Ramesh nor his brother Sargunam or any of his family members or any of their acquaintance exerted any pressure or force to the victim and her family members to depose in support of them. Earlier the said Ramesh filed a quash petition in Crl.O.P.(MD).No.14839 of 2024 and it was filed along with the affidavit filed by the defacto complainant stating that a false complaint was given and she is willing to withdraw the complaint, but this Court recorded that on interacting with the defacto complainant it is found that the affidavit filed is by force, not voluntary 6/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025 and dismissed the quash petition, by giving direction to complete the trial within a period of three months. Further, on 09.01.2025, P.W.1 to P.W.3 examined before the Trial Court and all three witnesses resiled from their earlier statement, not supported the case of the prosecution. He further submitted that the petitioner not approached the Trial Court by filing appropriate petition under Section 156(3) Cr.P.C. seeking further investigation, on the other hand approached this Court directly which cannot be entertained in view of Vinay Tyagi vs. Irshad Ali alias Deepak and others reported in 2013 (5) SCC 762. Hence, prayed for dismissal of the petition.
7.The learned Additional Public Prosecutor submitted that in this case, the accused belongs to a dominant community in the area with considerable money, muscle and political power. The victim a minor studying 10th Standard, during her school annual holiday to support her family she got employed in the Finance Firm owned by the accused Ramesh. During the lunch hours when no one in the Office, taking advantage of the loneliness the victim girl was sexually assaulted not once but on several occasions over a period of 15 days. The victim girl 7/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025 unable to bear the sexual assault cried to her mother and disclosed the happenings. Thereafter, the defacto complainant along with the victim lodged a complaint to the Police, who registered a FIR, examined the victim and her mother, the victim was produced before the Magistrate and 164 Cr.P.C. statement recorded where she confirms the abuse and the sexual assault. The accused absconded and unable to be secured. Despite dismissal of the anticipatory bail petition on more than one occasion. He would submit that the brother of the said Ramesh, namely, Sargunam, is an Advocate who has good networking, well connected, ensured his brother Ramesh is saved by all means. The victim and her mother/defacto complainant appeared on the directions of this Court, the learned Additional Public Prosecutor interacted with them, both disclosed the ordeals they faced at the hands of the accused, his brother and others. At each stage, they were shadowed and followed by a battery of Advocates and muscle men. The victim belongs to a minority community in the Village and were unable to raise voice or show their protest against the accused and his men who belong to a dominant community. The situation was not conducive. The victim and her family always under threat fearing for safety of their life and limb. The 8/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025 Additional Public Prosecutor informed the Superintendent of Police to provide adequate protection and also ensure that the compensation is provided to the victim. He further submitted that Victim Compensation Scheme, 2013 was formulated on 30.11.2013 and further, G.O.Ms.No.33 Social Welfare and Nutritious Meal Programme [SW.5(2)] Department dated 03.10.2020 issued for awarding compensation to the victims under the Tamil Nadu Child Victim Compensation Fund under the Protection of Children from Sexual Offences Act, 2012.
8.He further submitted that the threat to the victim and family is by slow of physical force and psychological force which has deferred them talking the truth before the Trial Court. He submitted that whatever the above case was listed, there was battle of Advocates following the case creating surcharged atmosphere.
9.Considering the submissions made and on perusal of the materials placed on record, it is seen that in this case the victim is 16 years old school going minor girl, during the school annual vacation she worked in the Finance firm of the accused for a monthly salary of 9/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025 Rs.6,000/-. The victim is a bright student, very much interested to continue her education. She informed that she is interested to pursue her education in Law, become an Advocate in future to get emboldened, fight against the atrocities and the sufferings of the victims like her. She joined employment only to augment the income for her parents. Her father is a Carpenter, her mother is a house wife with health ailments and her brother is a daily wager in Tiruppur and they are facing lot of financial constraints. The victim's parents borrowed a sum of Rs.2,00,000/- which was repaid but exorbitant interest demanded to keep them bonded under hook. There was some dispute in this regard. Admittedly the said Ramesh belongs to a dominant community and the victim hails from marginalised community from the same Village. Taking advantage of the dominance and loneliness of victim in the office during lunch hours, the victim was sexually assaulted not once but on several occasions. The victim unable to bear the sexual assault informed her mother about the pain and sufferings and mental trauma and thereafter, complaint lodged. It is also seen that the occurrence is said to have taken place on 30.04.2024 and continued for 15 days, the complaint was lodged only on 16.05.2024, FIR registered in Crime No.8 of 2024 10/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025 for the offence under Sections 7 and 8 of POCSO Act and 506(i) IPC. The accused became evasive not arrested. Thereafter, this Court granted anticipatory bail on 13.12.2024 since the Police unable to apprehend the accused for more than six months and reported investigation completed. The accused filed a quash petition in Crl.M.O.P.(MD).No.14839 of 2024 along with the compromise affidavit of the defacto complainant. This Court doubting the genuineness of the compromise affidavit had interaction with the defacto complainant and the victim in chamber narrated the plight of their sufferings, pain, threat for their life and limb. Thereafter, this Court directed the concerned Police to give protection. The learned Additional Public Prosecutor was advised to monitor the movement of the victim and to instruct the jurisdictional Police accordingly. But to the shock and surprise, it came to know that when the victim, her mother and her sister deposed on 09.01.2025 before the Trial Court all three witnesses were forced to resile from their earlier statement; the present petition though filed earlier, when it came up for hearing on 10.01.2025 the learned Additional Public Prosecutor informed about the victim and her family resiling from their earlier statement. This Court was shocked to hear the same since earlier when interacted on 11/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025 21.12.2024 in chambers, the victim though initially was hesitant to open up, after sometime she disclosed the happenings with tears, how she was exploited and after gaining confidence, she got embolden and disclosed the entire facts. Hence, the victim was again directed to appear before this Court to find out why she reviled from her earlier statement. The victim appeared and gave a written representation addressed to the Inspector of Police, All Women Police Station, Karaikudi, in her own hand, which is as follows:
kjpg;gpw;Fhpa mk;kh tzf;fk; mk;kh ehDk; vd; mk;kht[k;
Fw;wthsp unkc&; kPJ nghf;nrh
tHf;Fgjpt[ bra;jpUe;njhk;/ ,jd; fhuzkhf
Fw;wthsp unkc&pd; jk;gp rw;Fzk;
tHf;fwp"hpd; Ml;fs; vd;ida[k; vd;
mk;khita[k; kpul;odh;/ eh';fs; tHf;fpd;
Muk;gj;jpy; brd;w tHf;fwp"h; kndh$;
fpnc&hh; vjphpapk; jk;gpa[k; tHf;fwp"h;
rw;Fzk; mth;fs; brhy;tij kl;Lk;
nfS';fs; vd;W Twpdhh; (k) mth; Ml;fs;
v';fisa[k; vd; FLk;gj;jpy; mf;fh. mk;kh.
vd vy;nyhiua[k; gpd;bjhlh;e;J
kpul;lr;bra;jhh;fs;/ Kfk; bjhpahj ntWntW
egh;fs; gpd;bjhlu Muk;gpj;jhh;fs;/
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Crl.O.P(MD).No.665 of 2025
FLk;gj;njhL midtiua[k;
bfhz;WtpLnthk; eh';fs;
bra;ahtpl;lhy; ,e;j Cnu eh';fs; jhd;/
v';fis kPwp ahUk; VJk; bra;aKoahJ/
bjhlh;r;rpahf 10 egh;fSf;F nky; te;J
kpul;odh;/ ,jdhy; v';fSf;F vd;d
bra;tbjd;W bjhpahky; mth;fs; v';fis
fhhpy; miHj;J eh';fs; brhy;tij
kl;Lk;jhd; ePjpgjpaplk; Twntz;Lk; vd;W
nghyp!pd; typa[Wj;jyhy; kl;Lnk eh';fs;
bgha;ahd tHf;if rpj;jhpj;J tHf;fF
FLj;jJnghy; tHf;fwp"h; rw;Fzk; v';fis
kpul;o ePjpgjpaplk; Twitj;jhh;/ tpidahf
v';fs; FLk;gj;jhh;fisa[k; FHe;ijfisa[k;
mth; Ml;fs; Rw;wptisj;J brhy;y
itj;jhh;fs;/ ,jdhy; bra;tjwpahJ
mth;fs; TwpaJnghy; eh';fs; ePjpgjpaplk;
Twpndhk;/ ele;j Fw;wk; midj;Jk;
cz;ik/ FLk;gj;jpd; caph;f;fhf;fnt ehd;
midj;ija[k; cz;ikf;F khwhf
brhy;yntz;oa eph;ge;jj;jpy; ,Ue;njd;/
mk;kh Fw;wthsp jg;gpf;fnt
TlhJ ,Jnghy; ahUf;Fk; ,dpnky;
elf;fTlhJ/ v';fSf;F nghjpa
ghJfhg;g[ mspj;J eh';fs; jw;bghGJ
fhty;Jiwapd; ghJfhg;gpy; ehDk; vdJ
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Crl.O.P(MD).No.665 of 2025
FLk;gj;jhUk; ,Uf;nfhk; vd
bjhptpj;Jbfhs;fpnwhk; vd jhH;ika[ld;
nfl;Lbfhs;fpnwd;/
10.The statement of the victim is a testimony of how a voiceless victim can be throttled exploited by the dominant with societal clout. It is seen that in the case of Mahender Chawla and others vs. Union of India and others reported in 2019 (14) SCC 615, the Apex Court dealt in detail the plight of the witnesses and how large percentage of acquittals in criminal cases happening due to witnesses turning hostile and giving false testimonies, mostly due to lack of protection for them and their families, especially in case of women and children. It further held that free, frank and fearless deposition are important for trial and if the same is happened by threat to life, reputation, property of the witnesses or family members or through harassment or intimidation by or on behalf of the accused, it is nothing but affecting the right under Article 21 of the Constitution of India.
11.Further in the case of Zahira Habibullah Sheikh and another vs. State of Gujarat and others reported in (2004) 4 SCC 158, wherein 14/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025 the Apex Court finding that when the atmosphere in a State is not conducive had set aside the acquittal of the accused and transferred the case from one State to another State and directed the trial to commence afresh, with various other directions, primarily given direction to the witness to come out freely and frankly without fear to depose the truth.
12.In view of the above, it is clear that in this case, the defacto complainant (mother), minor victim and her sister all put to fear of life, limb and property, their existence and livelihood in the village becomes questionable, further they are constantly shadowed by muscle men exerting psychological pressure not to depose freely. The defacto complainant earlier filed a compromise affidavit before this Court in the quash application filed by the accused, which was found obtained by force and threat, not by free will, which is further fortified when the defacto complainant (mother of the victim), victim and her sister resiled from their earlier statement before the Trial Court. In view of the same, this Court finds that recording of evidence made so far is not free and fair one. Hence, this Court set asides and wipes out the evidence so far recorded.15/19
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13.This Court in the above facts is certain that Justice will not be done, if the trial is allowed to coninue in such hostile atmosphere and the trial will be a mockery. Witnesses are the eyes and ears of Justice. Drawing inspiration from Zahira Habibullah Sheik’s case, where the Apex Court quotes from Jennison vs. Backer (1972 (1) ALL ER 1006) “The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection loose hope”. Hence, this Court in the interest of justice and fairness, is convinced that Justice shall be done and ensured to be done, only if the above case is transferred from the District of Sivagangai to some other District.
14.Accordingly, the case in Spl.S.C.No.126 of 2024 pending before the Speical Court for Exclusive Trial of Cases under POCSO Act, 2012, Sivagangai is transferred to the Mahila Court/Speical Court for Trial of Cases under POCSO Act, 2012, Tiruchirappalli.
15.The Speical Court for Exclusive Trial of Cases under POCSO Act, 2012, Sivagangai is directed to forthwith transfer the case bundle 16/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm ) Crl.O.P(MD).No.665 of 2025 and records in Spl.S.C.No.126 of 2024 to the file of the Mahila Court/Special Court for Trial Court of Cases under POCSO Act, Tiruchirappalli. On receiving the case records, the Mahila Court/Special Court for Exclusive Trial of Cases under POCSO Act, Tiruchirappalli to proceed with the trial by examing the witnesses afresh on day-to-day basis and complete the same preferrably within a period of four months from the date of receipt of the case bundle and records. The Deputy Superintendent of Police, Karaikudi Division and the Commissioner of Police, Tiruchirappalli to provide adequate protection to the victim and all witnesses in the case and to ensure they depose in a free and fair manner. The proceedings to be conducted in camera by the Trial Court.
16.With the above directions, the Criminal Original Petition stands allowed.
01.04.2025 Neutral Citation: Yes/No Speaking order/Non-speaking order Index: Yes/No cse Copy to:-
The Judge, Mahila Court / Special Court for Exclusive Trial of Cases under POCSO Act, Tiruchirappalli.17/19
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1.The Superintendent of Police, Sivagangai District, Sivagangai.
2.The Deputy Superintendent of Police, Karaikudi Subdivision, Sivagangai District.
3.The Deputy Superintendent of Police, CBCID, No.7, Kamarajar Nagar, 2nd Street, Chinnachokkikulam, Madurai.
4.The Inspector of Police, All Women Police Station, Karaikudi, Sivagangai District.
5.The Special Court for Exclusive Trial of Cases under POCSO Act, Sivagangai.
6.The Special Court for Exclusive Trial of Cases under POCSO Act, Tiruchirappalli.
7.The Commissioner of Police, Tiruchirappalli.
8.The Additional Public Prosecutor, Madurai Bench of Madras High Court.
Madurai.
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cse PRE-DELIVERY ORDER IN Crl.O.P(MD).No.665 of 2025 01.04.2025 19/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 12:57:37 pm )