Kerala High Court

P. Vasantham vs The State Of Kerala on 19 January, 2021

WP(C).No.32323 OF 2014(S)           -1-




              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                        &

              THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                        WP(C).No.32323 OF 2014(S)


PETITIONER/S:

                P. VASANTHAM
                AGED 53 YEARS
                W/O.SATHAYAM MOKERI, SREE ACHYUTHAM,MOKERI P O,
                VATAKARA TALUK, KOZHIKODE DIST-673507, THE
                CHAIRPERSON WOMEN SUB COMMITTEE OF INDIAN
                ASSOCIATION OF LAWYERS, KERALA STATE.

                BY ADVS.
                SRI.K.K.BALAKRISHNAN (KODIYURA)
                SRI.K.R.AVINASH (KUNNATH)
                SRI.K.K.ALI
                SRI.P.CHANDRASEKHAR
                SRI. MANU VILSON C.V.

RESPONDENT/S:

       1        THE STATE OF KERALA
                REP BY CHIEF SECRETARY, GOVERNMENT
                SECRETARIAT,THIRUVANANTHAPURAM-695001

       2        ADDITIONAL CHIEF SECRETARY
                DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM-695001

       3        THE DIRECTOR GENERAL OF POLICE, KERALA
                POLICE HEAD QUARTERS,THIRUVANANTHAPURAM, PIN-695010

       4        STATION HOUSE OFFICER
                VALAYAM POLICE STATION, VALAYAM P O, VATAKARA
                TALUK, KOZHIKODE DIST, PIN-670306
 WP(C).No.32323 OF 2014(S)      -2-


       5       N AHAMMEDKUTTY
               THE PRINCIPAL, DARUL HUDA ENGLISH MEDIUM SCHOOL,
               PARAKKADAVU P O, KOZHIKODE DIST, KERALA-673509

               SRI SURIN GEORGE IPE SR GP FOR R1 TO R4

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19-01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.32323 OF 2014(S)              -3-




                              JUDGMENT

Dated this the 19th day of January, 2021

S. Manikumar, C.J.

Instant writ petition has been filed seeking the following reliefs:-

"i) issue writ of mandamus such other writ directing respondents to take appropriate steps for the appointment of special public prosecutors in each special court in the State as mandated under Section 32 of the POCSO Act.

ii) Direct the 1st to 3rd respondents to constitute a specially trained investigation team which includes woman IPS officer to investigate the offences under the POCSO Act.

iii) Direct 1st to 3rd respondent to conduct the investigation of the cases registered under Exhibit P4 and P5 by a special team of senior police officers which includes woman IPS officer trained to deal with the issues involved in the POCSO Act.

iv) This hon'ble court may be pleased to monitor the investigation of the case registered under Exhibit P4 and 5 for effective investigation."

2. Short facts leading to the filing of writ petition are as

hereunder:-

The petitioner is the Chairperson of Women Sub Committee of

Kerala State unit of Indian Association of Lawyers. According to the

petitioner, crime statistics of Kerala State shows that the crime against

children in the State is increasing at an alarming rate of 25% per year

but the conviction rate is very low even after the POCSO Act, 2012.

Police investigations in the said offences are unsatisfactory. Petitioner

submitted that on 30.11.2014, a 4 year old girl child, an LKG student

of the 'Darul Huda English Medium School', Parakkadavu of the 5 th

respondent, was sexually assaulted by persons associated with the said

school. Petitioner has also submitted that the school is run by the

powerful Muslim religious organization and the investigation of 4 th

respondent in the said incident is not proper. Therefore, petitioner

prays that the investigation must be done by a special team of senior

police officers trained to deal with the issues, which includes a woman

IPS officer and that this Court may monitor the investigation.

3. Earlier, when W. P. (C) No. 16773 of 2020 was filed for a

mandamus directing the 1st respondent to take all steps necessary for

filling up of posts of Special Prosecutors in all the POCSO Special

Courts of the State in a time bound manner and to ensure effective

functioning of the Special Courts, Mr. N. Manojkumar, learned

Special Government Pleader submitted that 27 Special Public

Prosecutors have been appointed for the courts designated as POCSO

courts for trial of offences against women and children,except in

Palakkad District. Orders passed in the said W. P. (C) No. 16773 of

2020 are reproduced hereunder:-

"On this day, when the matter came up for further hearing, out of 28 POCSO courts sanctioned, 23 have become functional. Works are in progress in respect of other courts. 27 Special Public Prosecutors have been appointed. As regards Palakkad District, court is yet to become functional. As regards filling up of the posts of Scientific Officers in Forensic Science Laboratories in Thiruvananthapuram and three Regional Forensic Science Laboratories at Ernakulam, Thrissur and Kannur respectively, Mr. N. Manojkumar, learned Special Public Prosecutor submitted that for filling up of 62 vacancies, a list was submitted by the Employment Exchange and letters were sent to 388 aspiring candidates to appear for the written test. Only 134 appeared and after interview, 46 were selected. He further submitted that the orders of appointment to the above said 46 persons would be sent. In respect of the remaining 16 vacancies, Employment Exchange would be addressed to send a list of

eligible candidates and on receipt of the same, the process of selection and appointment to the remaining vacancies will be done.

2. In the light of the decision of Hon'ble Supreme Court in the matter of appointment of Special Public Prosecutor to POCSO courts, filling up of vacancies for the purpose of expediting trial of rape and POCSO cases Government is expected to act promptly and finalise the process of appointment/filling up of posts of Special Public Prosecutor and Scientific Officers in the laboratories. Appointment to the post of Forensic Science Officers in the laboratories should be completed within one month from today.

3. Kerala Legal Services Authority is directed to inform this Court the details of the steps taken for imparting training to the Special Public Prosecutors already appointed and also state as to whether training can be given to Special Public Prosecutors selected for appointment, pending issuance of appointment letters."

4. Thus the first prayer sought for in the instant writ petition has

already been answered. Prayers No. 2, 3, and 4 directing respondents 1

to 3 to constitute a specially trained investigation team, which

includes a woman IPS officer to investigate offences under the

POCSO Act, cannot be granted as it has no statutory backing.

5. In so far as monitoring of investigation of the cases referred to

in Ext. P4 and P5 is concerned, on the basis of the instructions

furnished by the Deputy Superintendent of Police - III, Crime Branch,

Kozhikode, Mr. N. Manojkumar, learned Special Government Pleader

submitted that investigation into the offences stated in the writ petition

has already been completed. However, inadvertently, taking note of

the fact that the instant writ petition is pending before this Court, final

report has not been filed to the court of competent criminal

jurisdiction. From the instructions furnished by the Deputy

Superintendent of Police - III, Crime Branch, Kozhikode, the

following facts are reproduced:-

"Brief of the case is that on 30.10.2014 noon, two identifiable students residing at Darul Huda School Hostel, Parakkadavu committed aggrevated penetrative sexual assault on the victim aged 4 ½ years, who was studying in LKG standard of the same school, by bringing her in to their hostel room etc. facts.

In this connection a case in Cr. No. 512/14 U/s. 376 IPC and Sec. 4 of POCSO Act had been registered at Valayam Police Station upon the statement of victim's mother Raseena, age. 26/14 W/o. Ismail, Valiyaparambathu House, Thanakkottur on 11.11.2014. The initial investigation was conducted by Circle Inspector of Police, Nadapuram and he arrested two accused

persons namely Shamsudeen S/o. Siraj, 19/14, Baharan Quarters, Punnol, Kurichiyil Post and Mubasheer S/o. Muthalib Sakkafi, 20/14, Kundacherintida, Kakkadu Vayal, Cheruparamba, Parad.P.O. on 14.11.2014

The case was transferred to Crime Branch vide Order No.D3-13476/14/PHQ dtd. 27.11.2014 and re-numbered as CBCID Cr.No. 212/CR/HHW-III/KKD/2014. The investigation could not find any incriminating evidence against the two persons already arrested and consequently they were excluded from the accused list. It was also revealed that no such incident was taken place as stated in the allegation.

As part of re-organization of CBCID the above case was transferred to DYSP-III, Crime Branch, Kozhikode Unit, Vide Order No. D1-4072/CB/KKD/2014 dtd. 07.12.2018 and now I am the investigating officer of in this case.

On 01.12.2014 Smt. P. Vasantham W/o. Sathyan Mokeri, Sree Achutham, Mokeri.P.O., Vadakara, Kozhikode, The Chairperson, Women Sub Committy of Indian Association of Lawyers had filed a writ petition as WP( C ) 32323/14 seeking appropriate steps for the appointment of special public prosecutors in each special courts as mandated under section 32 of POCSO Act and to conduct the investigation of the above case by a special team of Senior Police Officers, which includes Woman IPS Officer trained to deal with issues involved in the POCSO Act.

On 07.04.2015, the father of the victim Sri. Ismail S/o. Moidu, 33/14, Valiyaparambathu House, Thanakkottur, Parakkadavu, had filed a writ petition as WP ( C ) 11719/2015 to issue orders to investigate the above case by a special team headed by a Woman Police Officer of IPS Rank."