Kerala High Court
Fathima vs State Of Kerala on 14 November, 2024
2024:KER:85371
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY,THE 14TH DAY OF NOVEMBER 2024/23RD KARTHIKA,1946
CRL.REV.PET NO. 1450 OF 2012
AGAINST THE ORDER/JUDGMENT DATED 27.04.2012 IN CRA NO.288
OF 2010 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA
ARISING OUT OF THE ORDER/JUDGMENT DATED 30.04.2010 IN CC
NO.216 OF 2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
NADAPURAM
REVISION PETITIONER/DEFACTO COMPLAINANT:
SHAHABANATH
D/O.NAFEESA,REPRESENTED BY
NAFEESA,MEETHALARIYATHHOUSE,CHEKKIYAD
AMSOM,PULIYAVU DESOM,VATAKARA TALUK,KOZHIKODE
DISTRICT.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENTS/APPELLANT/ACCUSED/STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM-682031,(CRIME NO.44/2007 OF
VALAYAMPOLICE STATION,KOZHIKODE).
2024:KER:85371
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Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
2 A.K.HARIDASAN
S/O.CHATHU,PATTANINTEVIDA HOUSE,NADAPURAM
AMSOM,KUMMANGODE AMSOM,VATAKARA TALUK-673101.
SRI.NOUSHAD K.A., PUBLIC PROSECUTOR
SRI.P.A.HARISH
SRI.V.V.SURENDRAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 04.11.2024, ALONG WITH
Crl.Rev.Pet.1490/2012, 1491/2012 AND CONNECTED CASES, THE
COURT ON 14.11.2024 DELIVERED THE FOLLOWING:
2024:KER:85371
3
Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY,THE 14TH DAY OF NOVEMBER 2024/23RD KARTHIKA,1946
CRL.REV.PET NO. 1490 OF 2012
AGAINST THE ORDER/JUDGMENT DATED 27.04.2012 IN CRA
NO.287 OF 2010 OF ADDITIONAL DISTRICT & SESSIONS COURT,
VADAKARA ARISING OUT OF THE ORDER/JUDGMENT DATED IN CC
NO.215 OF 2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS
NADAPURAM
REVISION PETITIONER/DEFACTO COMPLAINANT:
ASNA
D/O. RABIA, KODAKKAT HOUSE, CHEKIA AMSOM,
PULIYAVU DESOM, VATAKARA TALUK, KOZHIKODE.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENTS/APPELLANT/ACCUSED/STATE:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031.
2024:KER:85371
4
Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
2 A.K. HARIDASAN
AGED 43 YEARS, S/O. CHATHU, PATTANINTEVIDA
HOUSE, NADAPURAM AMSOM, KUMMANGODE DESOM,
VATAKARA TALUK - 673 101.
SRI.NOUSHAD K.A., PUBLIC PROSECUTOR
ADV SRI.V.V.SURENDRAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 04.11.2024, ALONG WITH
Crl.Rev.Pet.1450/2012 AND CONNECTED CASES, THE COURT ON
14.11.2024 DELIVERED THE FOLLOWING:
2024:KER:85371
5
Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY,THE 14TH DAY OF NOVEMBER 2024/23RD KARTHIKA,1946
CRL.REV.PET NO. 1491 OF 2012
AGAINST THE ORDER/JUDGMENT DATED 27.04.2012 IN CRA
NO.286 OF 2010 OF ADDITIONAL DISTRICT & SESSIONS COURT,
VADAKARA ARISING OUT OF THE ORDER/JUDGMENT DATED
30.04.2010 IN CC NO.214 OF 2007 OF JUDICIAL MAGISTRATE OF
FIRST CLASS , NADAPURAM
REVISION PETITIONER/S:
SHARBINA
D/O.SHAREEFA, KODAKKATT HOUSE, VALIYA
THAYALLATHIL HOUSE, CHEKIAD AMSOM, PULIYAVU
DESOM, VATAKARA TALUK, KOZHIKODE.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENT/S:
1 STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.
2024:KER:85371
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Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
2 A.K.HARIDASAN
AGED 43 YEARS
S/O.CHATHU, PATTANINTEVIDA HOUSE, NADAPURAM
AMSOM, KUMMANGODE DESOM, VATAKARA TALUK-673103.
SRI.NOUSHAD K.A., PUBLIC PROSECUTOR
SRI.P.A.HARISH
SRI.V.V.SURENDRAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 04.11.2024, ALONG WITH
Crl.Rev.Pet.1450/2012 AND CONNECTED CASES, THE COURT ON
14.11.2024 DELIVERED THE FOLLOWING:
2024:KER:85371
7
Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY,THE 14TH DAY OF NOVEMBER 2024/23RD KARTHIKA,1946
CRL.REV.PET NO. 1492 OF 2012
AGAINST THE ORDER/JUDGMENT DATED 27.04.2012 IN CRA NO.285
OF 2010 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA
ARISING OUT OF THE ORDER/JUDGMENT DATED IN CC NO.213 OF
2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, VADAKARA
REVISION PETITIONER/S:
AFSATH
D/O.MAIMOONATH, CHERIYA VAYALOLI, PULIYAVU
P.O., PARAKKADAVU (VIA), KOZHIKODE.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENT/S:
1 STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.
2 A.K.HARIDASAN
AGED 43 YEARS
S/O.CHATHU, PATTANINTEVIDA HOUSE, NADAPURAM
AMSOM, KUMMANGODE DESOM, VATAKARA TALUK-673103.
2024:KER:85371
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Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
SRI.NOUSHAD K.A., PUBLIC PROSECUTOR
SRI.P.A.HARISH
SRI.V.V.SURENDRAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 04.11.2024, ALONG WITH
Crl.Rev.Pet.1450/2012 AND CONNECTED CASES, THE COURT ON
14.11.2024 DELIVERED THE FOLLOWING:
2024:KER:85371
9
Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY,THE 14TH DAY OF NOVEMBER 2024/23RD KARTHIKA,1946
CRL.REV.PET NO. 1493 OF 2012
AGAINST THE ORDER/JUDGMENT DATED 27.04.2012 IN CRA NO.283
OF 2010 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA
ARISING OUT OF THE ORDER/JUDGMENT DATED 30.04.2010 IN CC
NO.167 OF 2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS
NADAPURAM
REVISION PETITIONER/DEFACTO COMPLAINANT:
MUFEEDA
D/O.SAFIYA, KODAKKATT HOUSE, PULIYAVU P.O.,
PARAKKADAVU (VIA), KOZHIKODE.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENTS/APPELLANT/ACCUSED/STATE:
1 STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.
2024:KER:85371
10
Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
2 A.K.HARIDASAN
S/O.CHATHU, PATTANINTEVIDA HOUSE, NADAPURAM
AMSOM, KUMMANGODE DESOM, VATAKARA TALUK-673101.
SRI.NOUSHAD K.A., PUBLIC PROSECUTOR
SRI.P.A.HARISH
SRI.V.V.SURENDRAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 04.11.2024, ALONG WITH
Crl.Rev.Pet.1450/2012 AND CONNECTED CASES, THE COURT ON
14.11.2024 DELIVERED THE FOLLOWING:
2024:KER:85371
11
Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY,THE 14TH DAY OF NOVEMBER 2024/23RD KARTHIKA,1946
CRL.REV.PET NO. 1494 OF 2012
AGAINST THE ORDER/JUDGMENT DATED IN CRA NO.284 OF 2010 OF
ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA ARISING
OUT OF THE ORDER/JUDGMENT DATED 30.04.2010 IN CC NO.212
OF 2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NADAPURAM
REVISION PETITIONER/S:
FATHIMA
D/O.SOUDA, CHERUVATHUKAL HOUSE, PULIYAVU P.O.,
PARAKKADAVU (VIA), KOZHIKODE.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENT/S:
1 STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.
2 A.K.HARIDASAN
AGED 43 YEARS
S/O.CHATHU, PATTANINTEVIDA HOUSE, NADAPURAM
AMSOM, KUMMANGODE DESOM, VATAKARA TALUK-673101.
2024:KER:85371
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Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
SRI.NOUSHAD K.A., PUBLIC PROSECUTOR
SRI.P.A.HARISH
SRI.V.V.SURENDRAN
THIS CRIMINAL REVISION PETITION HAVING COME UP
FOR FINAL HEARING ON 04.11.2024, ALONG WITH
Crl.Rev.Pet.1450/2012 AND CONNECTED CASES, THE COURT
ON 14.11.2024 DELIVERED THE FOLLOWING:
2024:KER:85371
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Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
P.G. AJITHKUMAR, J. "C.R."
-----------------------------------------------------------
Crl.R.P.Nos.1450, 1490, 1491, 1492,
1493 and 1494 of 2012
-----------------------------------------------------------
Dated this the 14th day of November, 2024
ORDER
The victims of the offence respectively in C.C.Nos.167,
212, 213, 214, 215 and 216 of 2007 on the files of the
Judicial Magistrate of the First Class, Nadapuram have filed
these revision petitions invoking the provision of Sections 397
read 401 of the Code of Criminal Procedure, 1973 (Code).
They challenge the common judgment of the Additional
Sessions Judge, Vatakara in Crl.Appeal Nos.283, 284 285,
286, 287 and 288 of 2010 dated 27.04.2012, by which the
judgments of conviction and the orders of sentence rendered
by the learned Magistrate in the aforesaid calendar cases were
set aside. The learned Sessions Judge remanded the matter to
the trial court for a fresh trial in accordance with law.
2. The judgments of the trial court were set aside on
the sole ground that before pronouncing the said judgments,
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Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
children's court was notified under Section 25 of the
Commissions for Protection for Child Rights Act, 2005 (for
short "the Child Rights Act"). The petitioners would contend
that having trial before the Magistrate already begun and the
children's court notified for the purpose of speedy trial alone,
the appellate court ought not to have set aside the judgments
of the trial court.
3. Heard the learned counsel for the revision
petitioners, the learned Public Prosecutor and the learned
counsel for the common 2nd respondent.
4. Common are the offences alleged in all the said
cases. Offences under Section 354, 377 and 506(i) of the
Indian Penal Code, 1860 (IPC) were the offences. The 2 nd
respondent was the common accused. The allegations were
also similar. That, the 2 nd respondent, on various days in
2007, subjected respective victims aged around 10 years to
sexual assault, unnatural offence and put to threat. The 2 nd
respondent was their teacher in Std.IV.
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Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
5. On the 2nd respondent denying the charge, the
learned Magistrate commenced trial. Pending trial in all the
cases, the Government of Kerala issued G.O.(P)
No.22/2009/SWD dated 03.06.2009 notifying the Sessions
Courts in the State as Children's' Court for the purpose of
Section 25 of the Child Rights Act. Trial was concluded
thereafter and the proceedings terminated in the judgment of
conviction dated 30.04.2010 in all the cases. The appellate
court took the view that having the children's court being the
specified court, been notified on 03.06.2009, the learned
Magistrate lost jurisdiction and the cases should have been
committed to the children's court, invoking the provisions of
Section 323 of the Code. The decision of this Court in Abdul
Aziz v. Circle Inspector of Police [2011 (4) KLT 1003]
was placed reliance on in that regard.
6. Section 25 of the Child Rights Act reads as
follows:
"25. Children's Courts.- For the purpose of providing
speedy trial of offences against children or of violation
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Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
of child rights, the State Government may, with the
concurrence of the Chief Justice of the High Court, by
notification, specify at least a court in the State or
specify, for each district, a Court of Session to be a
Children's Court to try the said offences:Provided that
nothing in this section shall apply if-
(a) a Court of Session is already specified as a special
court; or
(b) a special court is already constituted,
for such offences under any other law for the time being
in force."
7. The purpose of notifying children's courts was for
the specific purpose of speedy trial of offences against
children or of violation of child rights. Either in Section 25 or
in any other provision in the Child Rights Act, no exclusivity
for the children's court in the matter of trial of such offences
has been created. Therefore, the question is by notification of
children's court, whether an ordinary criminal court having
jurisdiction to try an offence in terms of the first schedule to
the Code, lost the jurisdiction altogether. A further question to
be considered is, keeping in mind the purpose for which
Section 25 of the Child Rights Act was enacted, can a trial
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Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
concluded before an ordinary criminal court after specifying a
children's court be set aside?
8. This Court in Jijimon v. state of kerala [2024
(5) KLT 279] held that in cases where the offences triable by
a Magistrate are concerning an offence against a child or of
violation of a child right, the court of the Magistrate becomes
only a wrong forum and not a court of inherent lack of
jurisdiction after the date of notification specifying a children's
court.
9. The learned counsel for the petitioner place
reliance on Rattiram v. State of M.P. [(2012) 4 SCC 516]
to fortify his contention that the trial held by the Magistrate
are not vitiated. That was a case where the special court
constituted under the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989 took cognisance of the
offence without the case being committed and held trial. The
contention was that for non-compliance of the mandatory
provision of Section 193 of the Code, the trial held by the
2024:KER:85371
Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
special court, which being a sessions court, was invalid.
Conflicting views taken in that regard were considered by a
three Judge Bench of the Apex Court and held that the trial
was not vitiated only for the reason of such a procedural
infraction. The said decision has no direct application here.
However, the following principles laid down by the Apex Court
have relevance,-
i) When the special court is constituted for speedy trial,
the procedural errors, omissions or irregularities which
did not result in a failure of justice are not reasons for
setting aside the judgment.
ii) If the court which held the trial is a court of competent
jurisdiction, the superior court shall be slow in
interfering with the judgment of the trial court on the
ground of procedural infraction.
iii) Speedy trial and fair treatment of a victim based on the
constitutional paradigm and principles are two essential
requirements of criminal trial.
iv) It is the sacrosanct obligation of all concerned to see
that the administration of criminal justice is not
protracted thereby resulting in oppression and denial of
rights of not only the accused but also the victim.
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Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
10. The aforesaid principles can have no application if
the judgment in question was rendered by a court having
inherent lack of jurisdiction. The Magistrate who held trial in
these cases, is the forum competent ordinarily to try such
offences. For the purpose of speedy trial only, the children's
courts were specified. By such notification, jurisdiction was
conferred upon the children's court in respect of offences
against children or of violation of child rights. It cannot be
said as result of such an interdiction, jurisdiction of the
Magistrate to try the offences was taken away. But propriety
demands that such offence should be tried by the children's
courts.
11. Be that as it may, if the judgments of the trial
courts in these cases are set aside, the result would be a
second trial which has the devastating effect of causing
inordinate delay, asking the 2nd respondent to stand trial anew
and compelling the victims to give evidence again, which is
against the jurisprudential principle underlying the provisions
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Crl.R.P.Nos.1450, 1490, 1491,
1492, 1493 and 1494 of 2012
of the Protection of Children from Sexual Offences Act, 2012
(PoCSO Act). Although the provisions of the PoCSO Act have
no application in these matters, the spirit of incorporating
provision for a speedy trial in the cases under the PoCSO Act;
similar are the cases here, shall be borne in mind.
12. Having regard to the aforesaid aspects in the light
of the principle laid down by the Apex Court in Rattiram
[(2012) 4 SCC 516], I am of the view that the learned
Additional Sessions Judge went wrong in setting aside the
judgments of the learned Magistrate dated 30.04.2010. What
was held in Abdul Azeez (2011 (4) KLT 1003] is the
parameters for deciding what kind of cases are liable to be
tried by the children's court and the proper procedure for
committing such a case to the children's court. That decision
did not lay down a proposition that the judgment rendered by
a Magistrate after notifying children's court is invalidate. So
the view taken by the appellate court relying on that decision
is untenable.
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1492, 1493 and 1494 of 2012
13. In the circumstances, the judgments dated
27.04.2012 in Crl.Appeal Nos.283, 284 285, 286, 287 and
288 of 2010 of the Additional Sessions Judge, Vatakara are
set aside. The appeals are remitted to that court. The 2 nd
respondent in person or through counsel shall appear before
the appellate court on 09.12.2024. The learned Sessions
Judge shall restore the appeals on file and proceed to dispose
of the same in accordance with law.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
