Xxxx vs State Of Kerala
2023 Latest Caselaw 10176 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
 THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA,
                                    1945
                        CRL.MC NO. 7001 OF 2023
 AGAINST THE ORDER/JUDGMENT SC 1786/2021 OF FAST TRACK
                     SPECIAL COURT I, NEYYATTINKARA
PETITIONERS/ACCUSED 1 AND 2:

    1          XXXX
               XXXX
    2          XXXX
               XXXX
               BY ADVS.
                    G.SUDHEER
                    R.HARIKRISHNAN (H-308)
                    SMRITHI S.S.

RESPONDENT/COMPLAINANT:

               STATE OF KERALA
               REPRESENTED BY PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA, PIN - 682 031.

               BY ADV
                    SRI. VIPIN NARAYAN-PUBLIC PROSECUTOR


        THIS     CRIMINAL    MISC.    CASE   HAVING     COME    UP    FOR
ADMISSION       ON    21.09.2023,    THE   COURT   ON   THE    SAME   DAY
PASSED THE FOLLOWING:
 Crl.M.C No.7001 of 2023
                            :2:



                          ORDER

Dated this the 21st day of September, 2023

The petitioners in this case are brothers. They

are accused in S.C Nos.1786/2021 and 276/2022, both of

which are pending before the Special Judge, Fast Track

Special Court (POCSO), Neyyattinkara. Both the

petitioners face allegations of having committed offences

under Section 354A(1)(i) of the Indian Penal Code,

Sections 8 r/w 7, 10 r/w 9(I)(m)(n)(p) and Section 12 r/w

11(i) of the protection of Children from sexual Offences

Act and Section 75 of Juvenile Justice Act and Sections

376AB and 376(2)(f) of the Indian Penal Code, Sections 4

r/w 3(b), 6 r/w 5(m)(n)(p), 8 r/w 7, 10 r/w 9(I)(m)(n)(p)

and Section 12 r/w 11(i) of the protection of Children

from sexual Offences Act and Section 75 of the Juvenile

Justice Act. The petitioners are alleged to have committed

the afore said offences in respect of two victims ( in each

case). The victims in these cases are sisters. In S.C. Crl.M.C No.7001 of 2023

No.1786/2021, the petitioners are alleged to have abused

the younger sister, while in S.C. No.276/2022, the

petitioners are alleged to have abused the elder sister.

2. The learned Counsel appearing for the

petitioners would submit that the trial has commenced in

S.C No.1786/2021, while charges are yet to be framed in

S.C No.276/2022. It is submitted that considering the

nature of the allegations, apart from the victims, the

other sister is also being examined by the prosecution,

where evidence is being tendered regarding the

allegations in the other case as well causing prejudice to

the petitioners. It is submitted that in such

circumstances, it is only appropriate that both the cases

are tried one after the other and arguments considered

and judgments pronounced on the same day. It is

submitted that if the trial of one case alone is concluded

and judgment is pronounced, the findings in that case

may have a bearing on the other case as well. Crl.M.C No.7001 of 2023

3. The learned Public Prosecutor referred to the

facts of the case before the trial court and has submitted

that both the cases are distinct though the accused may

be common. It is submitted that while in S.C.

No.1786/2021, the allegation is that the younger sister

was abused, the allegation in S.C. No.276/2022 is that the

elder sister was abused. It is submitted that in such

circumstances, there cannot be a joint trial as the

offences are distinct and relate to two different victims.

4. Having heard the learned Counsel appearing

for the petitioners and the learned Public Prosecutor, I

am clear in my mind that the learned Public Prosecutor is

right in contending that there is no scope for trying both

the cases together as the victims are different and the

cases do not fall within the category of cases which can

be tried together in terms of the provisions contained in

Section 220 of Cr.P.C. However, to allay the fear

expressed by the learned counsel for the petitioners that

the findings that may be rendered by the court or the Crl.M.C No.7001 of 2023

evidence tendered in one case may have a bearing on the

other case as well, I am of the opinion that the Crl.M.C

can be disposed of directing that while S.C No.1786/2021

and S.C.No.276/2022 shall be tried as separate cases, the

Special Court shall also take up S.C No.276/2022( where

charges have not been framed) and proceed to decide

both cases one after the other, treating them as separate

cases for all purposes. However, judgment in both cases

shall be pronounced on the same day. In the peculiar

facts and circumstances of this case, I am of the opinion

that the petitioners may suffer prejudice if the cases are

not taken up and disposed of as directed above.

5. Therefore the Crl.M.C is allowed and the Fast

Track Special Court (POCSO), Neyyattinkara is directed

to take up S.C. No.1786/2021 first and thereafter take up

S.C.No.276/2022 for trial. The judgments to be

pronounced in S.C Nos.1786/2021 and 276/2022 shall

however be pronounced on the same day. At the risk of

reiteration, it may be stated that it is not the finding of Crl.M.C No.7001 of 2023

this Court that both cases must be tried together jointly.

The Crl.M.C is disposed of with the above

direction. In the light of the view that I have taken, there

is no legal infirmity in Annexure-A8 order of the trial

court, refusing to try the cases jointly, as I have found

that the cases cannot be tried jointly and have to be tried

separately.

Sd/-

GOPINATH P.

JUDGE AMR Crl.M.C No.7001 of 2023

APPENDIX OF CRL.MC 7001/2020

PETITIONERS' ANNEXURES

ANNEXURE A1 COPY OF THE FIR AND FIS IN CRIME NO.1173/2020 OF THIRUVALLOM POLICE STATION.

ANNEXURE A2 COPY OF THE FINAL REPORT IN S.C.NO.1786/2021 PENDING BEFORE THE FAST TRACK SPECIAL COURT(POCSO), NEYYATTINKARA.

ANNEXURE A3 COPY OF THE FIR AND FIS IN CRIME NO.1172/2020 OF THIRUVALLOM POLICE STATION.

ANNEXURE A4 COPY OF THE FINAL REPORT IN S.C NO.276/2022 ON THE FILE OF FAST TRACK SPECIAL COURT(POCSO), NEYYATTINKARA.

ANNEXURE A5 COPY OF STATEMENT OF CW2/PW2 RECORDED UNDER SECTION 164 Cr.P.C IN CRIME NO.1173/2020 OF THIRUVALLOM POLICE STATION.

ANNEXURE A6 COPY OF THE CMP NO.166/2023 IN SC No.1786/2021 ON THE FILE OF THE FAST TRACK SPECIAL COURT(POCSO), NEYYATTINKARA.

ANNEXURE A7 COPY OF THE CMP NO.165/2023 IN SC No.276/2022 ON THE FILE OF THE FAST TRACK SPECIAL COURT(POCSO), NEYYATTINKARA.

ANNEXURE A8 COPY OF THE ORDER IN CMP NO.166/2023 IN S.C NO.1786/2021 DATED 7.8.2023 ON THE FILE OF THE FAST TRACK SPECIAL COURT(POCSO), NEYYATTINKARA.

ANNEXURE A9 COPY OF THE ORDER IN CMP NO.165/2023 IN S.C No.276/2022 DATED 07.08.2023 Crl.M.C No.7001 of 2023

ANNEXURE A10 COPY OF THE DEPOSITION IN CHIEF OF PW1 IN ANNEXURE A2 CASE BEFORE THE FAST TRACK SPECIAL COURT(POCSO), NEYYATTINKARA.

ANNEXURE A11 COPY OF THE DEPOSITION IN CHIEF OF PW2(WHO IS CW12 IN ANNEXURE A4) IN ANNEXURE A2 CASE BEFORE THE FAST TRACK SPECIAL COURT(POCSO), NEYYATTINKARA.

ANNEXURE A12 COPY OF THE PETITION FILED UNDER SECTION 309 Cr.P.C DATED 08.08.2023.