Kerala High Court
Babu @ Shibu vs State Of Kerala on 24 October, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
OP(CRL.) NO. 640 OF 2024
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2024:KER:79610
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
OP(CRL.) NO. 640 OF 2024
CRIME NO.102/2020 OF Kottarakkara Police Station, Kollam
AGAINST THE ORDER DATED 06.09.2024 IN SC NO.815 OF 2020
OF FAST TRACK SPECIAL COURT, KOTTARAKKARA
PETITIONER/ PETITIONER/ ACCUSED :
BABU @ SHIBU,
AGED 54 YEARS
S/O RAJAN, REVATHY BHAVAN,
AMBEDKAR COLONY, CHENGAMANADU SOUTH WARD,
CHENGAMANADU, MELILA VILLAGE,
KOLLAM DISTRICT, PIN - 683 578
BY ADV H.PRAVEEN (KOTTARAKARA)
RESPONDENT/ RESPONDENT/ STATE :
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682 031
SMT. SREEJA V., PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
24.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CRL.) NO. 640 OF 2024
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BECHU KURIAN THOMAS, J.
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O.P.(Crl.) No.640 of 2024
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Dated this the 24th day of October, 2024
JUDGMENT
Petitioner challenges an order dismissing his application filed
under section 311 Cr.P.C.
2. Petitioner is the accused in S.C.No.815 of 2020 on the files of
the Fast Track Special Court, Kottarakkara. He faces prosecution for
various offences under the Indian Penal Code, 1860 (for short, 'IPC')
including Section 377, apart from the offences under the Protection of
Children from Sexual Offences Act, 2012 (for short, 'POCSO'). Initially
the court had framed a charge under Section 107 IPC for abetment and
the trial proceeded on the said basis. When the evidence was completed
and the case was posted for orders, the trial court noticed that the
offence under Section 17 of the POCSO Act had been omitted to be
incorporated. Therefore, the trial court altered the charge from Section
107 IPC to Section 17 of the POCSO Act. Thereafter, petitioner filed the
application under Section 311 Cr.P.C to recall the witnesses already
examined by the prosecution for cross-examination. The learned Sessions
Judge by the impugned order dated 06.09.2024 dismissed the said
application after observing that recalling of witnesses can only be seen to
be a delay in tactic and no new aspect need to be brought in by the
OP(CRL.) NO. 640 OF 2024
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alteration of charge.
3. I have heard Sri.H.Praveen Kottarakkara, the learned counsel
for the petitioner as well as Smt.Sreeja V., the learned Public Prosecutor.
4. By altering the charge from Section 107 IPC to Section 17 of
POCSO, no new ingredient is brought in, since both have the same
ingredients of the offence of abetment. Though the ingredients of Section
107 IPC and Section 17 of the POCSO Act are the same, and the
prosecution did not seek to adduce any evidence, still, the petitioner
wanted to cross-examine all the witnesses mentioned in Ext.P6. In this
context, it is essential to note that by altering the charge from 107 IPC to
section 17 of POCSO Act, the burden of proof has shifted. Under the IPC,
the burden of proof is on the prosecution to prove the guilt of the accused
beyond reasonable doubt, while under the POCSO Act, the burden is on
the accused. Section 30 of the POCSO Act states that, in a prosecution for
an offence under the said Act, the culpable mental state of the accused
will be presumed to be in existence.
5. The nature of defence the accused has to adopt when the
prosecution is under a POCSO Act will be different from the defence to be
adopted in a prosecution under the Indian Penal Code. Since the court
had altered the charge after the trial was completed, petitioner's defence
can be prejudiced if he is not given an opportunity to cross-examine the
witnesses already examined by the prosecution. The reasoning that the
application is intended to delay the conclusion of the trial is, according to
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me, in the circumstances of the case, not legally justified, since the
situation arose only because of the court altering the charge. Hence,
petitioner cannot be attributed with any attempt to delay the trial.
In view of the above, the impugned order dated 06.09.2024 in
Crl.M.P. No.592 of 2024 in S.C. No.815 of 2020 on the files of the Fast
Track Special Court, Kottarakkara is hereby set aside. The application
filed by the petitioner under Section 311 of Cr.P.C. is allowed. Petitioner
is permitted to cross-examine the ten witnesses mentioned in the list of
witnesses dated 29.08.2024, produced as Ext.P6 in this original petition.
The original petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
OP(CRL.) NO. 640 OF 2024
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APPENDIX OF OP(CRL.) 640/2024
PETITIONER'S EXHIBITS :
Exhibit P3 TRUE COPY OF THE PRINT OUT OF THE
PROCEEDINGS OF THE COURT BELOW DATED 26-
6-2024
Exhibit P4 TRUE COPY OF THE PRINT OUT OF THE COURT
PROCEEDINGS IN SC 815/2020 ON THE FILES
OF THE COURT OF THE SPECIAL JUDGE, FAST
TRACK SPECIAL COURT, KOTTARAKARA DATED
21-8-2024
Exhibit P5 TRUE COPY OF THE AFFIDAVIT AND PETITION
FILED BY THE COUNSEL FOR THE ACCUSED AS
CRL.M.P 592/2024 IN SC 815/2020 BEFORE
THE COURT BELOW DATED 23-8-2024
Exhibit P7 TRUE COPY OF THE ORDER PASSED BY THE
COURT BELOW IN CRL.M.P 592/2024 IN SC
815/2020 DATED 6-9-2024
