Kerala High Court
Mini Mathew vs State Of Kerala on 15 November, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY,THE 15TH DAY OF NOVEMBER 2024/24TH KARTHIKA, 1946
CRL.MC NO. 9125 OF 2024
CRIME NO.930/2017 OF Palarivattom Police Station,
Ernakulam
AGAINST THE ORDER DATED 10.09.2024 IN
CRMP.NO.1099/2024 IN SC NO.480 OF 2024 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST
WOMEN & CHILDREN), ERNAKULAM
PETITIONER/ACCUSED:
MINI MATHEW, AGED 56 YEARS
WIFE OF MATHEW JACOB, PUTHUPARAMBU VEEDU,
NOCHIMA KARA, NEAR GOVERNMENT SCHOOL, INDIRA
NAGAR ROAD, ALUVA EAST VILLAGE, ALUVA,
ERNAKULAM DISTRICT, PIN - 683563.
BY ADVS.
T.RAMPRASAD UNNI
K.RAMAKUMAR (SR.)
S.M.PRASANTH
SHEHIN S.
DEVIKA S.
RESHMA DAS P.
RESPONDENTS/STATE, COMPLAINANT & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
2 THE STATION HOUSE OFFICER, PALARIVATTOM
POLICE STATION, PALARIVATTOM, ERNAKULAM
DISTRICT, PIN - 682025.
3 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
PUBLIC PROSECUTOR SRI M P PRASANTH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 04.11.2024, THE COURT ON 15.11.2024
PASSED THE FOLLOWING:
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Crl.M.C.No.9125/2024 2
"C.R"
A. BADHARUDEEN, J.
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Crl.M.C.No.9125 of 2024-A
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Dated this the 15th day of November, 2024
ORDER
Order dated 10.09.2024 in Crl.M.P.No.1099/2024 in
S.C.No.480/2024 on the files of the Special Court for trial of cases relating
to Atrocities and Sexual Violence against Women and Children
(Protection of Children from Sexual Offences Act `POCSO Act' for short),
is under challenge in this petition filed under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (`BNSS' for short).
2. Heard the learned counsel for the petitioner and the
learned Public Prosecutor in detail. Perused the impugned order.
3. In this matter prosecution alleges commission of
offences punishable under Section 323 of the Indian Penal Code (`IPC' for
short) as well as Section 75 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (`JJ Act' for short). Prosecution case is that the
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accused, who was the manager of 'Kaliveedu Day Care' physically
assaulted the victim child, aged 1 ½ years, of the defacto complainant from
05.12.2016 to 23.05.2017 and thereby caused mental and physical
suffering to the child. Initially, the case was numbered as
C.C.No.1317/2017 and charge was framed and trial proceeded. Thereafter
it was brought to the notice of the learned Magistrate that since offence
under Section 75 of the JJ Act is involved, the case shall be tried by the
Children's Court. Accordingly, the learned Magistrate, as per the
impugned order, committed the case under Section 207 of Cr.P.C to the
Children's Court.
4. While assailing the order it is pointed out by the learned
counsel for the petitioner that in this matter since trial has already
commenced and substantially progressed, whether the committal thereafter
is legally sustainable, is the question to be decided. He also pointed out
that, if so, what is the fate of the evidence recorded by the learned
Magistrate?
5. According to the learned counsel for the petitioner, since
the trial has commenced and substantially progressed, committal of the
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case to Children's Court is illegal and the same would require interference.
6. Whereas the learned Public Prosecutor strongly opposed
the contentions on the submission that as per Section 86 of the JJ Act,
2015, Children's Court alone has the jurisdiction to try offences under the
JJ Act and, therefore, the learned Magistrate rightly committed the case
before the Children's Court, and therefore, the impugned order is only to
be justified.
7. In the decision reported in [2024 KHC 474], Anil
Kumar M.R v. State of Kerala this Court held as under in paragraphs 5, 6,
7, 8, 12 and 13:
"5. In this matter, the point argued by the learned counsel
for the petitioner is that this crime was registered for an occurrence on
04/12/2018. During the time of occurrence, S.86(4) of the JJ Act, a
new provision introduced as per the amendment, came into force from
01/09/2022, was not in force. Since the amendment has no
retrospective operation, the present case cannot be transferred in tune
with the mandate of S.86(4) of the JJ Act and the Magistrate alone has
jurisdiction to try the case. Accordingly, he prays for setting aside the
order impugned.
6. Whereas it is submitted by the learned Public Prosecutor
that S.86(4) of the JJ Act has application in the pending cases also and
therefore, the learned Magistrate rightly passed Annexure A3 order
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and the order impugned does not require any interference.
7. Extracting the legal provisions prior to amendment with
effect from 01/09/2022, S.86 of the JJ Act provided as under:
"S.86. (1) Where an offence under this Act is punishable with
imprisonment for a term more than seven years, then, such offence
shall be cognizable, non - bailable and triable by a Children's Court.
(2) Where an offence under this Act is punishable with imprisonment
for a term of three years and above, but not more than seven years,
then, such offence shall be cognizable, non - bailable and triable by a
Magistrate of First Class. (3) Where an offence, under this Act, is
punishable with imprisonment for less than three years or with fine
only, then, such offence shall be non - cognizable, bailable and triable
by any Magistrate"
8. After the amendment, S.86(4) of the JJ Act has been
introduced and the same reads as under:
"86(4) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 or the Commission of protection of Child
Rights Act, 2005 or the Protection of Children from Sexual Offences
Act, 2012, offences under this Act shall be triable by the Children's
Court."
xxxx xxxx xxxx xxxx
12. Thus the legal position as regards operation of the
procedural law, which would decide the forum in legal proceedings,
unless expressly or impliedly provides otherwise, the same is
retrospective in operation and the new forum could have jurisdiction to
consider the cases pending before the introduction of the amendment
and in relation to occurrence before the amendment.
13. Having scrutinized the legal position in this frame, in
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view of the introduction of S.86(4) of the JJ Act, all offences covered by
S.86(4) of the JJ Act shall be triable by the Children's Court and not by
the Magistrate Court. Thus, the impugned order, holding the said view,
is perfectly justifiable and accordingly, Annexure A3 order in CMP
No.16060/2023 in C.P.No.94/2023 on the files of the Judicial First
Class Magistrate Court - I, Nedumangad, stands confirmed."
8. It is pointed out by the learned counsel for the petitioner
that, recently the Apex Court has examined the issue of fair trial in the
decision Amandeep Singh Saran v. State of Chhattisgarh, [(2024) 6 SCC
541], and the same has application in the present case.
9. On reading the decision in Amandeep Singh Saran v.
State of Chhattisgarh's case (supra), the Apex Court considered a case
where 10 out of 86 witnesses were examined by the Chief Judicial
Magistrate in a case involving offence under Section 409 of IPC and other
Magisterial offences, where the Apex Court invoked power under Section
323 of CRPC to commit the case to the Sessions Court and in paragraph
No.39 it was held as under:
"39. A scanning of the provisions under Section 323
CrPC would show that in any inquiry or trial before a Magistrate,
"which expression would take in the Chief Judicial Magistrate as
well", it appears to him at any stage of the proceedings before
signing the judgment that the case is one which ought to be tried by
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the Court of Session, it should commit to that court. Thus, it is
evident that before signing the judgment, the power under Section
323 CrPC is available to be exercised. Certainly, the sine qua non
for exercise of the power under Section 323 is the opinion of the
Magistrate concerned that it is a case which ought to be tried by the
Court of Session. In view of the provision, under normal
circumstances, it is desirable to direct the Court of the Magistrate
concerned to exercise the power after due consideration. However,
in view of the peculiar circumstances of this case which we have
already taken into account, id est that the maximum penalty
imposable by the Court of Chief Judicial Magistrate is imprisonment
not exceeding 7 years, that taking into account the fact that the
appellant herein had already undergone incarceration for a period
of more than only 10 out of 86 witnesses on the side of the
prosecution have been examined, we direct the Court of the Chief
Judicial Magistrate, Raipur to commit the case under trial against
the appellant herein, arising out of FIR No.22 of 2015 of Police
Station New Rajendra Nagar, Raipur in the State of Chhattisgarh, to
the Court of Session to which he is subordinate, to enable that court
to conduct the trial in the said case. This shall be done within a
period of three weeks from the date of the receipt of the copy of this
judgment. Upon such committal and receipt of the case, the Court
of Session concerned shall proceed with the trial of the case in
accordance with law under Chapter XVIII CrPC. The Court of
Session concerned shall make an endeavour to conduct and
conclude the trial expeditiously."
On reading the ratio of the case, the same has no bearing on the facts of
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this case.
10. As far as the question raised by the learned counsel for
the petitioner is concerned, when a court which lacks inherent jurisdiction
to try the case or to record evidence, proceeds on the wrong premise that
such power is available, the said proceedings are indubitably non-est and
the same have no legal base to withstand. Therefore, the trial proceedings
carried out by the Magistrate in the instant case is non-est in the eye of law
and the same to be reckoned as effaced. In the instant case, no doubt,
offence under Section 75 of the JJ Act is alleged and therefore the same
shall be triable by the Children's Court, established under the JJ Act in
view of the mandate under Section 86(4) of JJ Act as held in Anil Kumar
M.R v. State of Kerala's case (supra) and not by any other courts.
Therefore, the order passed by the learned Magistrate committing the case
is perfectly justifiable and therefore there is no need to interfere with the
order impugned.
11. Therefore, this petition is liable to fail and is accordingly
dismissed.
12. Interim order shall stand vacated.
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Registry is directed to forward a copy of this order to the
jurisdictional court for information and further steps.
Sd/-
A. BADHARUDEEN, JUDGE
rtr
PETITIONER'S ANNEXURES
ANNEXURE A TRUE COPY OF FIRST INFORMATION
REPORT DATED 23.05.2017 IN CRIME
NO.930/2017 OF THE PALARIVATTOM
POLICE STATION.
ANNEXURE B CERTIFIED COPY OF FINAL REPORT DATED
15.06.2017 IN CRIME NO.930/2017 OF
THE PALARIVATTOM POLICE STATION.
ANNEXURE C CERTIFIED COPY OF COURT CHARGE DATED
16.05.2018 IN C.C.NO.1317/2017 ON
THE FILE OF THE JUDICIAL FIRST CLASS
MAGISTRATE'S COURT-IX, ERNAKULAM.
Annexure D CERTIFIED COPY OF ORDER DATED
18..03..2024 IN C.P. NO. 9 OF 2024
ON THE FILE OF THE JUDICIAL FIRST
CLASS MAGISTRATE'S COURT-IX,
ERNAKULAM.
Annexure E TRUE COPY OF SUMMONS DATED
06..06..2024 ISSUED TO THE
PETITIONER BY THE ADDITIONAL
DISTRICT AND SESSIONS COURT,
ERNAKULAM (FOR THE TRIAL OF CASES
RELATING TO ATROCITIES & SEXUAL
VIOLENCE AGAINST WOMEN AND CHILDREN)
Annexure F TRUE COPY OF PETITION NUMBERED AS
CRL. M.P. NO. 1099 OF 2024 IN S.C.
NO. 480 OF 2024 BEFORE THE
ADDITIONAL DISTRICT AND SESSIONS
JUDGE'S COURT, ERNAKULAM (POCSO
COURT) ON 25..06..2024.
Annexure G CERTIFIED COPY OF ORDER DATED
10..09..2024 IN CRL. M.P. NO. 1099
OF 2024 IN SC NO. 480 OF 2024 ON THE
FILE OF THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE'S COURT, ERNAKULAM
(POCSO).
