Kerala High Court
Xxxx vs State Of Kerala on 6 November, 2024
2024:KER:82706
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
CRL.MC NO. 9251 OF 2024
CRIME NO.7/2024 OF MANNAR POLICE STATION, ALAPPUZHA
SC NO.347 OF 2024 OF FAST TRACK SPECIAL COURT, CHENGANNUR
PETITIONERS/3RD WITNESSES/VICTIM:
1 XXXX
AGED 47 YEARS
XXXXXXXXXX, PIN - 689510
2 XXXX
AGED 16 YEARS
XXXXXXX, PIN - 689510
BY ADV.SRI. SRAYAS JOSEPH
RESPONDENTS/STATE/ACCUSED:
1 STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 MANOJ
AGED 45 YEARS
S/O SUKUMARAN RESIDING AT MANOJ BHAVANAM HOUSE, BUDHANOOR EAST
MURI, ENNACKADU VILLAGE, CHENGANNUR, ALAPPUZHA, PIN - 690101
R1 BY PUBLIC PROSECUTOR SRI.M P PRASANTH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.11.2024, THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.9251 of 2024
2
2024:KER:82706
ORDER
Dated this the 6th day of November, 2024
This Criminal Miscellaneous Case has been filed under
Section 528 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (for short 'the BNSS') at the instance of the victim
through her father with a prayer to quash Annexure-A1
FIR, Annexure-A2 Final report and all further proceedings in
SC No.347/2024 on the files of Fast Track Court-III,
Chengannur arose out of Crime No.0007/2024 of Mannar
Police Station, Alappuzha.
2. In fact quashment already sought for at the
instance of the accused/2 nd respondent herein was
dismissed by this Court as per Annexure-A3 order in
Criminal M.C.No.7350 of 2024 dated 22.10.2024.
3. The relevant paragraphs are 3 to 6 in the order
and the same read as under:
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"3. Here the prosecution alleges commission of
offences punishable under Sections 363, 342, 506(i),
354, 354B, 354D, 506(i) of the Indian Penal Code
(`IPC' for short) and Section 119(b) of the Kerala Police
Act (`K.P Act' for short) as well as Section 8 r/w 7,
11(iv) r/w 12 of the Protection of Children from Sexual
Offences Act (`POCSO Act' for short). The prosecution
case is that the accused herein with intention to subject
the minor victim, aged 16 years, to sexual assault,
forcefully took the minor to his house during a day in
between 11.12.2023 and 15.12.2023 and took
photograph of the victim along with the accused after
placing the victim so closely, in the presence of mother
of the accused, and forwarded the same to the victim
through WhatsApp. Later, on another day in between
11.12.2023 and 15.12.2023, the accused again taken
the victim forcefully to another house of his and
removed the dress worn by the victim and the accused,
and forcefully laid the victim on his body and thereby
sexually harassed her. When the victim attempted to
inform the same to her family members, he picked up
and thrown away her mobile phone and also threatened
her to kill. The further allegation is that thereafter also
the accused followed the victim through social media
and disturbed her. This is the base on which the
prosecution alleges commission of the above offences.
4. While seeking quashment of this crime, it is
submitted by the learned counsel for the petitioner that
none of the offences under the POCSO Act is made out,
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prima facie, on the allegation that the accused took the
photograph along with the victim placing her so close to
him. The learned counsel for the petitioner further
submitted that now the father of the victim has filed an
affidavit stating that he has no grievance in this matter.
Therefore, the matter is liable to be quashed.
5. The learned Public Prosecutor strongly
opposed quashment of this crime involving POCSO
offences, on the submission that the offences are well
made out, prima facie, and in such a case merely acting
on the affidavit, quashment could not be considered.
6. On scanning, the prosecution allegation is
that the accused herein with intention to subject the
minor victim, aged 16 years, to sexual assault,
forcefully taken the minor to his house during a day in
between 11.12.2023 and 15.12.2023 and taken
photograph of the victim along with the accused after
placing the victim so closely, in the presence of mother
of the accused, and forwarded the same to the victim
through WhatsApp. Later on another day in between
11.12.2023 and 15.12.2023, the accused again taken
the victim forcefully to another house of his and
removed the dress worn by the victim and the accused
and forcefully laid the victim on his body and thereby
sexually harassed her. When the victim attempted to
inform the same to her family members, he picked up
and thrown away her mobile phone and also threatened
her to kill. The further allegation is that thereafter also
the accused followed the victim through social media
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and disturbed her. Even though the learned counsel for
the petitioner attempted to make the offences so lighter
or to substantiate that no ingredients to constitute
offences under the POCSO Act are made out, the
prosecution records would show that the allegations are
made out, prima facie, warranting trial. Settlement of
POCSO cases acting on the affidavit could not be
considered since the offences are against minors.
Therefore, on the affidvit of the father of the victim,
quashment cannot be acted upon. Hence this Criminal
Miscellaneous Case is only liable to fail."
Now the same relief is sought for by the victim.
Therefore, the same could not be considered. Hence the
petition is liable to fail. Accordingly, this petition stands
dismissed.
Sd/-
A. BADHARUDEEN
JUDGE
MJL
2024:KER:82706
PETITIONERS' ANNEXURES:
Annexure A1 THE TRUE COPY OF FIR DATED 10.01.2024 IN CRIME
NO.0007/2024 OF MANNAR POLICE STATION
Annexure A2 THE TRUE COPY OF FIANL CHARGE DATED 29.02.2024
IN CRIME NO.0007/2024 OF MANNAR POLICE STATION
ON THE FILE OF SC NO.347/2024 OF HON'BLE FAST
TRACK SPECIAL COURT, CHENGANNUR
Annexure A3 THE TRUE COPY OF THE JUDGMENT IN
CRL.M.C.NO.7350/2024 DATED 22.10.2024 OF THE
HON'BLE HIGH COURT OF KERALA
Annexure A4 THE TRUE COPY OF THE JUDGMENT OF O.P.(HMA)
436/2017 DATED 19.12.2017 OF HON'BLE FAMILY
COURT, MAVELIKKARA
Annexure A5 THE ORIGINAL OF THE AFFIDAVIT EXECUTED BY 1ST
PETITIONER HEREIN FOR AND ON BEHALF OF 2ND
PETITIONER WHO IS THE VICTIM DATED 01.11.2024
RESPONDENTS' ANNEXURES: NIL
/TRUE COPY/
PA TO JUDGE
