Anas vs The Director General Of Police
2024 Latest Caselaw 28695 Ker

Kerala High Court

Anas vs The Director General Of Police on 3 October, 2024

                                                       2024:KER:73540
W.P(Crl.)No.933/2024               1


                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

      THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946

                        WP(CRL.) NO. 933 OF 2024

PETITIONER:
           ANAS, AGED 30 YEARS
           S/O. AURANGAZEB, RESIDING AT TC 8/1107-5, MAITRI NAGAR,
           B-25, VALIYAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM
           DISTRICT, PIN - 695006.

             BY ADVS.
             M.KIRANLAL
             MANU RAMACHANDRAN
             R.RAJESH (VARKALA)
             T.S.SARATH
             SAMEER M NAIR
             SMT.AKHILA B.
             SAILAKSHMI MENON
RESPONDENTS:
     1     THE DIRECTOR GENERAL OF POLICE
           POLICE HEAD QUARTERS, VELLAYAMBALAM,
           THIRUVANANTHAPURAM, PIN - 695010.
     2     THE CITY POLICE COMMISSIONER, THIRUVANANTHAPURAM,
           POLICE GROUND, CV RAMAN PILLAI ROAD, PANAVILA, THYCAUD,
           THIRUVANANTHAPURAM, KERALA, PIN - 695014.
     3     THE COMMISSIONER OF POLICE, KOZHIKODE CITY,
           PALAYAM, KOZHIKODE, KERALA, PIN - 673004.
     4     THE SUPERINTENDENT OF POLICE
           DISTRICT CRIME BRANCH, RAM MOHAN ROAD,
           KOZHIKODE, PIN - 673004.

             BY ADVS.
             GOVERNMENT PLEADER SRI M.P.PRASANTH
             ADVOCATE GENERAL OFFICE KERALA
             DIRECTOR GENERAL OF PROSECUTION(AG-10)
             SHRI.P.NARAYANAN, SPL. G.P. TO DGP AND ADDL. P.P. ()
             SHRI.SAJJU.S., SENIOR G.P.()
      THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
11.09.2024, THE COURT ON 03.10.2024 DELIVERED THE FOLLOWING:
                                                                    2024:KER:73540
W.P(Crl.)No.933/2024                     2




                     A. BADHARUDEEN, J.
             ================================
                     W.P(Crl.) No.933 of 2024
           ================================
               Dated this the 3rd day of October, 2024


                                 JUDGMENT

This Writ Petition has been filed by the sole accused in Crime

No.35/2024 of Cusba Police Station, Kozhikode, (originally crime was

registered by the Medical College Police Station, Thiruvananthapuram

City, later transferred to Cusba Police Station, Kozhikode) alleging

commission of offences punishable under Section 354A(1)(i), 354A(2),

342 and 509 of the Indian Penal Code (`IPC' for short); Sections 8, 7 and

10 r/w Section 9(p) of Protection of Children from Sexual Offences Act

(`POCSO Act' for short) and Sections 3(2)(va) and 3(1)(w)(i) of

Scheduled Case/Scheduled Tribe (Prevention of Atrocities) Act, 1989

(`SC/ST Act' for short. The prayers in the Writ Petition are as under:

"1. To issue such other appropriate writ, order or direction in the form of certiorari, call for the documents leading to the final report in this case and to set aside the same.

2024:KER:73540

2. To issue such other writ, order or direction in the form of mandamus directing the State Police Chief to issue orders to form appropriate team by the District Crime Branch and make a fair investigation in the Crime No.35/2024 registered by Kozhikode Cusba Police.

3. To issue such other writ, order or direction to stay the further trial of SC.370/2024 on the files of Fast Track Special Court, Kozhikode."

2. Heard the learned counsel for the petitioner and the

learned Public Prosecutor in detail. Scrutinised the records.

3. The prosecution allegation herein is that on 11.11.2023

when the victim and other students went for Karate Championship held in

Kozhikode, the petitioner, who is their Karate Instructor, sexually harassed

the victim after taking her to a room knowing that the victim belonged to

Scheduled Caste community. The specific allegation is that the accused

herein, who doesn't belong either to Scheduled Caste or Scheduled Tribe

community, knowing that the victim is a member of Scheduled Caste

community, forcefully took the victim to a room while they were staying

at a hotel in connection with Karate Championship and kissed her on lips

repeatedly with sexual intent and thereby committed the above offences.

4. At the time of hearing, the learned counsel for the 2024:KER:73540

petitioner specifically pointed out Grounds J, O, P, Q, R and S as reasons

to seek the reliefs in this Writ Petition. The same are as under:

"J. Petitioner submits that the allegations levelled in the complaint against the petitioner are concocted and this is done on the basis of a severe criminal conspiracy that have been hatched by few Karate instructors who are inimical terms with the petitioner. The petitioner submits that the victim girl was in continuous touch with the petitioner during the period between 11.11.2023 and 28.12.2023, the petitioner had handed over their mobile phone to the investigation officer and the police was convinced that the facts narrated by the petitioner was convincing and believable.

O. The petitioner submits that the victim had a love affair with one of the students in the Karate class named as Adithyan, when the petitioner had warned them for not having, such relationship at Karate classes, the victim girl as well as the above mentioned Adithyan were not in good terms with the petitioner. This difference of opinion between the petitioner as well as the victim, was mis utilized by certain people who wanted to have an unfair victory over the petitioner.

P. The petitioner had interacted with Mr.Adithyan who was in affair with the victim girl and the above said Adithyan had divulged to the petitioner that, he had asked the victim to give a voice message to Mr. Rishikesh at the Karate school. This Adithyan also acts that he had instructed Rishikesh to record a voice message of the victim on the instruction of Mr.Ajith and Joy Varghese. This disclosure of Mr. Adithyan was recorded by the petitioner in his 2024:KER:73540

mobile phone and the said recording was also handed over to the police during the course of investigation which the police conveniently discarded.

Q. The continuous chats between the petitioner and the victim and the petitioner having handed over the mobile phone to the Cyber police during the course of investigation and when the petitioner participated for the interrogation would reveal that the petitioner falsely implicated in a criminal case without any bonafide and the police have failed thoroughly to make a proper investigation in a matter which has got serious allegation against the petitioner.

R. The petitioner submits that without making a proper investigation the police have filed a final report before the jurisdictional court. The opportunity of the petitioner to produce defense evidence at the time of trial and having the matter investigated in a fair manner protecting the right of fair investigation, of the petitioner are two distinct things. Suffering the trauma of passing through the stages of trial, is by itself a punishment for a common man who has never experienced any proceedings in a court. The right of fair investigation is an integral part of the fair trial and it cannot be separated from each other. A fair trial can be ensured only if there is a fair investigation. A faulty investigation which has falsely implicated an innocent man straight away curtails the right guaranteed to the person Article 21 of the Constitution of India."

5. Opposing interference in the final report and also

opposing any sort of further investigation in this matter, the learned Public

prosecutor would submit that going by the statement given by the victim 2024:KER:73540

recorded as on 27.12.2023, without much delay, the allegation of sexual

assault has been stated specifically and on investigation also, the same was

found in the affirmative. Accordingly, final report was filed alleging

commission of the said offences. Now the attempt of the petitioner is to

stall the trial in a case which has been pending as S.C.No.370/2024 before

the Fast Track Special Court, Kozhikode.

6. Coming to the grounds specifically pointed out by the

learned counsel for the petitioner to grant the reliefs, it is to be noted that

the same are to the effect that there was criminal conspiracy hatched

between a few Karate Instructors, who were in inimical terms with the

petitioner, and the victim, who was in continuous touch with them, and as

the outcome of the same, a false complaint against the petitioner had been

lodged. Further the victim had a love affair with one An (pseudonym),

one of the students in the Karate class, and when the petitioner warned the

victim and An, not to maintain the relationship, the victim and An, were

not in good terms with the petitioner and this difference of opinion

between the petitioner and the victim is the reason to lodge this complaint.

Another contention is that the continuous chats between the petitioner and 2024:KER:73540

the victim were handed over to the Cyber police. During the course of

investigation a thorough investigation was not conducted. It is submitted

further that there was no fair investigation and fair investigation is the

integral part of a fair trial guaranteed by the Constitution of India.

Therefore, reliefs sought for are liable to be granted.

7. While considering the rival submissions, I have gone

through the FIS recorded by the Women Cell, Thiruvananthapuram City,

dated 26.12.2023. As per the FIS participation of the victim in the Karate

Championship held on 11.11.2023 along with other students and the

accused were disclosed. Their journey to Kozhikode on 09.11.2023 in an

Alto car their arrival in Kozhikode at 1 a.m on 10.11.2023 and their stay at

a hotel therein were disclosed. The specific allegation is that, on

11.11.2023, when the victim along with her friend At (pseudonym)

reached the room, in order to take the guards the accused was standing in

front of the room. When she came out with At with guards, the accused

sent out At and caught hold on the victim's hand and brought her inside

the room and locked the room. Thereafter he moved the victim abutting

the wall and kissed on her lips repeatedly with sexual intent. She could 2024:KER:73540

not even make a loud cry and she pushed him back. Soon the mobile

phone of the accused rang, immediately he attended the same and left the

place. She laid up in the room and thereafter returned to home on

12.11.2023. This incident made her mentally weak and she refused to go

to attend the Karate class. She also stated that though her father also

accompanied them to Kozhikode, she did not disclose the same because of

the mental strain and to avoid quarrel between her father and the accused.

Later, when R (pseudonym) Master enquired about her absence in the

Karate classes, she disclosed the occurrence and in turn R Master

instructed her to disclose the same to her family and accordingly she

disclosed the same to her mother. Going by the final report it is

discernible that in the 164 statement also, the victim disclosed the sexual

molestation in terms of the 161 statement.

8. However, it is argued by the learned counsel for the

petitioner that statements of none of the occurrence witnesses recorded by

the Investigating Officer and thus the investigation is not fair. Addressing

this contention, when the prosecution records are perused with reference to

the statements of the victim, it is discernible that the act of molestation was 2024:KER:73540

inside a room and the persons present in the room at the time of occurrence

were the victim and the accused, and no others present therein. Therefore

no possibility for any eye witness/es to the occurrence and therefore this

challenge is found to be not acceptable to prudence. That apart, the

contention raised by the petitioner that this case is outcome of conspiracy

hatched between some other Karate trainees at one end and the same is the

result of his warning to the victim and An to stop the relationship seem to

be contradictory. In fact, the final report would show that the police

effectively investigated the crime and on finding that the allegations are

true, final report was filed. Thus it appears that the police effectively

investigated the crime and the entire prosecution case solely rests on the

statements of the victim disclosing the ingredients to attract the offences

alleged against the petitioner and it could not be held that final report

suffers from any illegality. Similarly it could not be held that the

investigation which led to filing of final report is in any way vitiated and

further investigation as sought for herein is necessary. Therefore, this

petition filed with a view to stall the trial unnecessarily must fail and is

accordingly dismissed.

2024:KER:73540

Registry shall forward a copy of this judgment to the

jurisdictional court for information and further steps.

Sd/-

A. BADHARUDEEN, JUDGE rtr/ 2024:KER:73540

APPENDIX OF WP(CRL.) 933/2024

PETITIONER'S EXHIBITS

Exhibit P1 A TRUE COPY OF THE FIR IN CRIME NO.35/2024 REGISTERED BY KOZHIKODE CUSBA POLICE STATION.

Exhibit P2 THE TRUE COPY OF THE FIR IN CRIME NO.1754/2023 REGISTERED BY MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM CITY.

Exhibit P3 A TRUE COPY OF THE COMPLAINT GIVEN BY THE PETITIONER'S WIFE TO THE DIRECTOR GENERAL OF POLICE DATED 08.01.2024.

Exhibit P4 A TRUE COPY OF THE POSTAL RECEIPT EVIDENCING THE DISPATCH OF THE COMPLAINT DATED 08.01.2024.

Exhibit P5               A   TRUE  COPY   OF  THE   BAIL   APPLICATION   IN
                         B.A.433/2024 BEFORE THIS HON'BLE COURT.

Exhibit P6               A TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN

BAIL APPLICATION NO.433/2024 DATED 24.01.2024.

Exhibit P7 THE TRUE COPY OF THE WHATSAPP CHAT BETWEEN THE PETITIONER AND THE VICTIM GIRL.

Exhibit P8 THE PHOTOGRAPH, TAKEN BY THE INSTRUCTORS, OF THE PARTICIPANTS IN THE SAID COMPETITION.

Exhibit P9 A TRUE COPY OF THE SCREENSHOT EVIDENCING THE TRANSFER OF RS.3000/- FROM THE ACCOUNT OF THE PETITIONER TO THE ACCOUNT OF THE FATHER OF THE VICTIM.

Exhibit P10 A TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER TO THE DIRECTOR GENERAL OF POLICE DATED 07.02.2024.

Exhibit P11 A TRUE COPY OF THE PETITION SENT BY THE PETITIONER TO THE HON'BLE CHIEF MINISTER OF KERALA DATED 02.06.2024.

Exhibit P12 A TRUE COPY OF THE FINAL REPORT IN CRIME NO.35/2024 REGISTERED BY CUSBA POLICE, KOZHIKODE.