Kerala High Court
Aneesh P vs State Of Kerala on 30 October, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
Crl.M.C No.4535 & 4528/2024 1
2024:KER:80931
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
CRL.MC NO. 4535 OF 2024
CRIME NO.32/2023 OF Neyyardam Police Station, Thiruvananthapuram
AGAINST CP NO.56 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST
CLASS, KATTAKADA
PETITIONER/DEFACTO COMPLAINANT:
ANEESH P.
AGED 38 YEARS,S/O PADMANABHAN ASARI,
ANEESH BHAVAN,
PARAKONAM, KOTTOOR,
MANNOORKARA VILLAGE, MANNOORKARA P.O.,
THIRUVANANTHAPURAM, PIN - 695542
BY ADVS.
SRI.ARUN CHAND
SRI.PRAMOD S.K.
SRI.VINAYAK G MENON
SRI.BHARAT VIJAY P.
SRI.THAREEQ ANVER K.
SMT.K.SALMA JENNATH
ADV.MINU VITTORRIA PAULSON
SMT.NEETHU S.
SMT.ARCHANA P.P.
RESPONDENTS/STATE/ACCUSED:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 SUB INSPECTOR OF POLICE
NEYYARDAM POLICE STATION,
NEYYARDAM ROAD, NEYYARDAM P.O.,
THIRUVANANTHAPURAM, PIN - 695572
Crl.M.C No.4535 & 4528/2024 2
2024:KER:80931
3 SHIJU S.
AGED 36 YEARS, S/O SASI,
PARAKONATHU HOUSE,
PARAKONAM, KOTTOOR,
MANNOORKARA VILLAGE, MANNOORKARA P.O.,
THIRUVANANTHAPURAM, PIN - 695542
4 GOPI
AGED 60 YEARS, S/O APPICHERUKAN,
PARAKONATHU HOUSE,
PARAKONAM, KOTTOOR,
MANNOORKARA VILLAGE, MANNOORKARA P.O.,
THIRUVANANTHAPURAM, PIN - 695542
5 SOMAN
AGED 50 YEARS, S/O APPICHERUKAN,
PARAKONATHU HOUSE,
PARAKONAM, KOTTOOR,
MANNOORKARA VILLAGE, MANNOORKARA P.O.,
THIRUVANANTHAPURAM, PIN - 695542
6 RAJESH
AGED 36 YEARS, S/O CHELLAPPAN,
PARAKONATHU HOUSE,
PARAKONAM, KOTTOOR,
MANNOORKARA VILLAGE, MANNOORKARA P.O.,
THIRUVANANTHAPURAM, PIN - 695542
7 VINOD
AGED 30 YEARS, S/O REGHU,
PARAKONATHU HOUSE,
PARAKONAM, KOTTOOR,
MANNOORKARA VILLAGE, MANNOORKARA P.O.,
THIRUVANANTHAPURAM, PIN - 695542
8 SHIJU @ PAPPU
AGED 33 YEARS, S/O GOPI,
PARAKONATHU HOUSE,
PARAKONAM, KOTTOOR,
MANNOORKARA VILLAGE, MANNOORKARA P.O.,
THIRUVANANTHAPURAM, PIN - 695542
BY ADVS.
SHRI.P.NARAYANAN, PUBLIC PROSECUTOR
Crl.M.C No.4535 & 4528/2024 3
2024:KER:80931
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
16.10.2024, ALONG WITH Crl.MC.4528/2024, THE COURT ON 30.10.2024
PASSED THE FOLLOWING:
Crl.M.C No.4535 & 4528/2024 4
2024:KER:80931
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
CRL.MC NO. 4528 OF 2024
CRIME NO.34/2023 OF Neyyardam Police Station, Thiruvananthapuram
AGAINST SC NO.1732 OF 2024 OF SPECIAL COURT-TRIAL OF OFFENCE
UNDER SC/ST(POA)ACT 1989, NEDUMANGAD
PETITIONER/ACCUSED:
ANEESH P.,
AGED 38 YEARS,S/O PADMANABHAN ASARI,
ANEESH BHAVAN,
PARAKONAM, KOTTOOR,
MANNOORKARA VILLAGE, MANNOORKARA P.O.,
THIRUVANANTHAPURAM, PIN - 695542
BY ADVS.
SRI.ARUN CHAND
SRI.PRAMOD S.K.
SRI.VINAYAK G MENON
SRI.BHARAT VIJAY P.
SRI.THAREEQ ANVER K.
SMT.K.SALMA JENNATH
ADV.MINU VITTORRIA PAULSON
SMT.NEETHU S.
SMT.ARCHANA P.P.
RESPONDENTS/STATE/DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE DEPUTY SUPERINTENDENT OF POLICE
KATTAKADA,
THIRUVANANTHAPURAM, PIN - 695572
Crl.M.C No.4535 & 4528/2024 5
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3 SUB INSPECTOR OF POLICE
NEYYARDAM POLICE STATION,
NEYYARDAM ROAD, NEYYARDAM P.O.,
THIRUVANANTHAPURAM, PIN - 695572
4 XXXX
XXXX
BY ADVS.
SHRI.P.NARAYANAN, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
16.10.2024, ALONG WITH Crl.MC.4535/2024, THE COURT ON 30.10.2024,
PASSED THE FOLLOWING:
Crl.M.C No.4535 & 4528/2024 6
2024:KER:80931
"C.R."
BECHU KURIAN THOMAS, J.
---------------------------------------
Crl.M.C Nos.4535 & 4528 of 2024
----------------------------------------
Dated this the 30th day of October, 2024
ORDER
Petitioner seeks joint trial of three cases in these two petitions filed under
section 482 of the Code of Criminal Procedure,1973 (for short 'Cr.P.C'). Though
the prayer is only for joint trial, a question arises whether the trial of offences
under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 can be directed to be conducted before the Special Court constituted
under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Since one of the three cases claimed to be tried jointly is common to both
these petitions, they are disposed of by this common order.
2. Crl.M.C No.4528 of 2024 seeks joint trial of S.C. No.1732/2023 pending
before the Special Court for Trial of Offences under SC/ST (Prevention of
Atrocities) Act, Nedumangad (hereafter referred to as 'SC/ST case'), and S.C.
No.1435/2023 before the Fast Track Special Court, Kattakada,
Thiruvananthapuram, (hereafter referred to as 'POCSO case'). Crl.M.C No.4535
of 2024 seeks a joint trial of the case pending as C.P. No.56/2023 before the
Judicial First Class Magistrate Court, Kattakada, Thiruvananthapuram
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(hereafter referred to as 'IPC Case') along with POCSO case. Petitioner
contends that the aforesaid three cases fall within the category of cross-cases
and are hence required to be jointly tried or at least consecutively tried by the
same court.
3. Petitioner is the defacto complainant in Crime No.32/2023 of
Neyyardam Police Station - the IPC case, which is now pending, awaiting
committal to the Sessions Court. Prosecution alleges that in the said crime on
15.01.2023, at around 9.30 pm, the accused had, due to a property dispute,
formed themselves into an unlawful assembly and assaulted the defacto
complainant with an iron hammer, causing a fracture of his left eye, thereby
committing the offences under Sections 143 147, 148, 294(b), 341, 323, 324,
326 and 307 r/w Section 149 of the Indian Penal Code, 1860. The said case is
now under further investigation.
4. Petitioner is the accused in the SC/ST case, which arises out of Crime
No.34/2023 of Neyyardam Police Station. The said crime is initiated pursuant
to a complaint filed by the wife of the first accused in the IPC case. The crime
was registered on 18.01.2023 alleging that petitioner, as accused, had, on
15-01-2023 at 10 PM, trespassed into the defacto complainant's house and
after assaulting her on the head, caught hold of her hair and breast and even
tore her night dress and thereby committed the offences under Sections
294(b), 451, 506, 323, 354B and 354 of the Indian Penal Code, 1860 (for
short 'IPC'), apart from sections 3(1)(s) & (r) and 3(V)(a), of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short
'the SC/ST Act').
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5. Petitioner is also the accused in the POCSO case. The said crime is
initiated at the behest of the wife of the fifth accused in the IPC case alleging
that the accused had on 15.01.2023 at 10.30 PM, trespassed into the house of
the defacto complainant, and knowing that she is a Scheduled Caste, called her
by the caste name and thereafter wore his mundu in a manner revealing his
undergarments, and also caught hold of the defacto complainant's daughter
aged 12 years on her hands, and thereby outraged her modesty and sexually
assaulted the minor, thus committing the offences under Sections 451, 354,
509 and 294(b) of IPC apart from Section 7 r/w Section 8 of the Protection of
Children from Sexual Offences Act, 2012 (for short 'POCSO Act'), apart from
sections 3(1)(s), 3(1)(w)(i and section 3(1)(w)(ii) of the SC/ST Act.
6. Petitioner, who is the defacto complainant in the IPC case and the
accused in the SC/ST and POCSO cases allege that the cases registered against
him are all false and are only counterblast to the IPC case, registered on his
behalf. According to the petitioner, since the cases have all allegedly occurred
within half an hour, in order to properly appreciate the defences raised in all
three cases, it is essential to have them jointly tried or at least tried
consecutively, one after the other.
7. Sri. Arun Chand, the learned counsel for the petitioner, submitted
that unless the cases are permitted to be jointly tried, the petitioner would be
put to serious prejudice, especially considering that the FIR in the POCSO case
was filed 26 days after registration of the IPC case.
8. Sri. P.Narayanan, the learned Public Prosecutor, on the other hand,
contended that the offence in the IPC case is now subject to further
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investigation and has not even been committed to the Sessions Court, and
therefore the said case cannot be tried jointly with other cases. However, he
fairly conceded that the IPC case and the SC/ST case ought to be consecutively
tried as both are cross-cases. However, it was submitted that the POCSO case
cannot be directed to be jointly or consecutively tried with other cases in view
of the legal provisions of the Act. The learned Public Prosecutor further pointed
out that since the POCSO court is a Special Court created for the purpose of
dealing with sexual offences against minors, transferring other SC/ST offences
to be tried before the POCSO court is not legally permissible, as both are to be
separately tried by the Special Courts created for the purpose.
9. I have considered the rival contentions.
10. Different versions of an incident may be the basis of different crimes.
These are generally regarded as 'cross-cases' or 'case and counter case'. The
Cr.P.C and even the BNSS are silent on how to deal with cross-cases.
However, in the decision in Nathi Lal and Others vs. State of Uttar
Pradesh and Another (1990 Suppl. SCC 145/1990 SCC (Cri) 638), the
Supreme Court laid down the procedure to be adopted when cross-cases arise.
It was observed that the fair procedure to be adopted in such instances is to
direct the same learned Judge to try both cases one after the other. It was
further observed that after recording evidence in one case, the Judge must
hear the arguments, reserve the judgment and thereafter proceed to hear the
counter-case and after recording all the evidence, he must hear the arguments
and reserve the judgment in that case also. The same learned Judge must
thereafter dispose of the matters by separate judgments. It was also observed
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that in deciding each of the cases, the Judge should rely only on the evidence
recorded in that particular case, without being influenced in any manner by the
evidence or arguments urged in the counter-case. Nonetheless, it was
observed that judgments in the cross cases must be pronounced by the same
learned Judge one after the other. The aforesaid proposition was reiterated by
the Supreme Court in Sudir and Others v. State of M.P [(2001) 2 SCC 688].
11. Apart from the above, in the decision in State of Madhya Pradesh
v. Mishrilal and Others [(2003) 9 SCC 426], the Supreme Court made
observations as to the procedure to be adopted in respect of cross-cases and
held that such cases should be tried together by the same court irrespective of
the nature of the offence involved. The rationale behind this principle is to
avoid conflicting judgments over the same incident. Thus, it is evident that,
irrespective of the nature of the offence, cross-cases must be tried
simultaneously.
12. In Faizal v. State of Kerala (2024 (3) KHC 322) it was observed,
after referring to the precedents on the issue, that the reason for adopting
such a procedure for cross-cases is that; (a) it prevents the danger of an
accused being convicted before his whole case is before the court, (b) it deters
conflicting judgments being delivered upon similar facts and (c) in reality, the
case and the counter - case are different or conflicting versions of one incident
for all intents and purposes.
13. In Miss. Pxxx vs. State of Uttarakhand and Another (AIR 2022
SC 2885) the Supreme Court had observed that the criteria for determining
whether two or more acts constitute the same transaction in a given case are
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the proximity of time, unity or proximity of place, continuity of action and
community of purpose or design. It was further observed that whether a series
of acts are so connected to form the same transaction is a pure question of
fact to be decided on the basis of the aforementioned criteria. In the decision
in Tony K.M. v. State of Kerala [2023 KHC Online 9341] a learned Single
Judge of this Court had transferred a case alleging offences under the IPC to
be tried along with a case arising under the POCSO Act.
14. While considering whether joint trial of the three cases should be
ordered or at least the principle of cross cases ought to be applied to have
them tried simultaneously, the above decisions are required to be borne in
mind.
15. In the instant case, offences arise under the IPC, the SC/ST Act and
the POCSO Act. The offences alleged under the IPC are triable exclusively by
the Sessions Court and committal proceedings are pending. The offences under
the SC/ST Act are triable by a Special Court constituted under the said Act
while the offences under the POCSO Act are also to be tried by a Special Court
created under the POCSO Act. Under section 31 of the POCSO Act, the
provisions of Cr.P.C are made applicable and the Special Court is deemed to be
a Court of Sessions. In Kerala, the Courts of Sessions have been notified as
Special Courts under the POCSO Act and under section 28, the said court is
entitled to try any other offence under any other statute if charged at the same
trial. Under section 14 of the SC/ST Act, the Court of Sessions can be
designated as a Special Court to try the offences under the said Act. The
Special Court constituted under the SC/ST Act is also a Court of Sessions. It is
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thus evident that, once the case under the IPC registered at the behest of the
petitioner is committed to the Court of Sessions, all three cases are to be tried
by Sessions Court.
16. The incident in the IPC case is alleged to have taken place on 15-
01-2023 at 9.30 PM in front of the house of the accused therein while the
incident in the SC/ST case is alleged to have occurred on the same day at 10
PM in front of the house of the defacto complainant therein (who is the wife of
one of the accused in the IPC case) and the incident in the POCSO case is
alleged to have occurred again on the same day at 10.30 PM in the house of
the defacto complainant (again the wife of another accused in the IPC case).
Having regard to the proximity in time between the three offences and also the
proximity of the places where the three incidents are alleged to have taken
place and the persons involved in the three crimes, this Court is of the view
that the three cases in effect arise out of the same transaction. The continuity
of action and the place where the incidents are alleged to have taken place, all
indicate that the three cases are cross-cases. Since the principle relating to
cross-cases require all such cross-cases to be tried by the same learned Judge
and as the POCSO Court is also a Sessions Court, it is only appropriate that
these cases are tried simultaneously.
17. However, the difficulty arises as the offences under the SC/ST Act and
the POCSO Act are to be tried by Special Courts and each of such Courts are
designed to cater to the requirements of trial under the special statute. There
is no express interdiction under the POCSO Act that the Special Court under
that statute cannot try other cases. In fact, when offences under different
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statutes are alleged, Section 28 of the POCSO Act, enables trial of such
offences before the POCSO Court, provided the other offences are charged at
the same trial. In other words, when an offence under the POCSO Act is
alleged to have been committed against a person of the SC/ST community, the
case has to be tried by the Special Court under the POCSO Act. Taking a cue
from the aforesaid enabling provision in Section 28 of the POCSO Act, it can be
concluded that there is no interdiction in the POCSO Court, trying another
sessions offence including that under the SC/ST Act, when the cases are under
the category of cross-cases. The above interpretation will enable adherence to
the principle that cross-cases must be tried simultaneously. Hence, this Court
is of the view that when cross-cases arise and if one of the cross-cases alleges
offences under the POCSO Act, the Special Court constituted under the said Act
can try the cases relating to the other offences as well, even in consecutive
trials irrespective of the nature of offence .
18. In this context, it is appropriate to note that the IPC case has not yet
been committed, and in fact, a further investigation is ongoing. Hence, after
the further investigation is completed, the IPC case will have to be committed
to the Sessions Court. Thereafter it is necessary that the three cases be tried
simultaneously.
In view of the above propositions, this Court is of the view that the three
cases S.C. No.1435/2023 before the Fast Track Special Court, Kattakkada,
S.C. No.1732/2023 before the Special Court for SC/ST (Prevention of
Atrocities) Act, Nedumangad and C.P. No.56/2023 before the Judicial First
Class Magistrate Court, Kattakada after committal to the Sessions Court,
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should be tried simultaneously by the Fast Track Special Court, Kattakkada
(POCSO Court). Ordered accordingly.
These criminal miscellaneous cases are allowed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
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PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE F.I.R. IN CRIME NO.
32/2023 OF NEYYARDAM POLICE STATION,
THIRUVANANTHAPURAM DISTRICT
Annexure A2 THE TRUE COPY OF THE FINAL REPORT IN CRIME
NO.32/2023 OF NEYYARDAM POLICE STATION,
THIRUVANANTHAPURAM DISTRICT SUBMITTED BY THE
2ND RESPONDENT BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT, KATTAKADA,
THIRUVANANTHAPURAM
Annexure A3 THE TRUE COPY OF THE FIR IN CRIME NO.34/2023
OF NEYYARDAM POLICE STATION,
THIRUVANANTHAPURAM DISTRICT
Annexure A4 THE TRUE COPY OF THE FIR IN CRIME NO.107/2023
OF NEYYARDAM POLICE STATION,
THIRUVANANTHAPURAM
Annexure A5 THE TRUE COPY OF THE RELEVANT PAGES OF THE
OF NEYYARDAM POLICE STATION SUBMITTED BY
INVESTIGATION OFFICER BEFORE THE FAST TRACK
SPECIAL COURT, KATTAKADA, THIRUVANANTHAPURAM
Annexure A6 THE TRUE COPY OF THE DAILY CASE STATUS
PERTAINING TO S.C. NO.1435/2023 BEFORE THE
FAST TRACK SPECIAL COURT, KATTAKADA,
THIRUVANANTHAPURAM DOWNLOADED FROM THE
WEBSITE MAINTAINED BY THE NATIONAL
INFORMATICS CENTRE
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PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE F.I.R. IN CRIME NO.
34/2023 OF NEYYARDAM POLICE STATION,
THIRUVANANTHAPURAM DISTRICT
Annexure A2 THE TRUE COPY OF THE RELEVANT PAGES OF THE
FINAL REPORT IN CRIME NO.34/2023 OF NEYYARDAM
POLICE STATION, THIRUVANANTHAPURAM DISTRICT
SUBMITTED BY THE 2ND RESPONDENT BEFORE THE
SPECIAL COURT FOR SC/ST (PREVENTION OF
ATTROCITIES) NEDUMANGAD
Annexure A3 THE TRUE COPY OF THE FIR IN CRIME NO.32/2023
OF NEYYARDAM POLICE STATION,
THIRUVANANTHAPURAM
Annexure A4 THE TRUE COPY OF THE FIR IN CRIME NO.107/2023
OF NEYYARDAM POLICE STATION,
THIRUVANANTHAPURAM
Annexure A5 THE TRUE COPY OF THE RELEVANT PAGES OF THE
OF NEYYARDAM POLICE STATION SUBMITTED BY THE
SECOND RESPONDENT BEFORE THE FAST TRACK
SPECIAL COURT, KATTAKADA, THIRUVANANTHAPURAM
Annexure A6 THE TRUE COPY OF THE DAILY CASE STATUS
PERTAINING TO S.C. NO.1435/2023 BEFORE THE
FAST TRACK SPECIAL COURT, KATTAKADA,
THIRUVANANTHAPURAM DOWNLOADED FROM THE
WEBSITE MAINTAINED BY THE NATIONAL
INFORMATICS CENTRE
