Kerala High Court
Xxxxxx vs Xxxxxx on 30 September, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
OP (FC) NO. 564 OF 2024
AGAINST THE ORDER IN OP(G&W) NO.582 OF 2021 OF FAMILY COURT,
KANNUR
PETITIONER/RESPONDENT:
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
BY ADVS.
NANDAGOPAL S.KURUP
ADITH KIRAN R.S.
RESPONDENT/PETITIONER:
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
BY ADVS.
ARUN BOSE.D ABD
K.VISWAN(K/416/1993)
P.S.POOJA(K/1664/2023)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
30.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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2
JUDGMENT
Devan Ramachandran, J.
We propose to be very brief in this judgment because of the
disturbing facts noticed.
2. It is imputed that the minor child of the parties was
sexually abused by the respondent-father. On such allegation,
S.C.No.147/2021 is admittedly pending on the files of the Fasttrack
Special Court, Taliparamba; and it is also without contest that,
subsequent to the father being enlarged on bail, its terms were
modified through Ext.P5 order, allowing him to interact with the
child - however, subject to the orders of the learned Family Court
- because, by then, O.P.(GW) No.582/2021 was stated to have
been filed before the learned Family Court, Kannur.
3. Sri.Nandagopal S. Kurup - learned counsel for the
petitioner, however, argued that Ext.P5 order was obtained by the
respondent using deception before the learned Sessions Court,
Thalassery, because, on the date on which it was filed, O.P.(GW)
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No.582/2021 had not been instituted. He asserted out that it was
done a day later; but that, without noticing this, the learned
Family Court has allowed the child to interact with the father
unauthorisedly, in the chambers of the learned Judge. He
submitted that, therefore, his client has preferred Ext.P9
application before the learned Family Court, which was, in fact,
done before the afore alleged interaction was conducted; and
sought that the same be directed to be taken up and disposed of
at the earliest, because the interaction of the child with the
accused - no matter whether the allegations are finally proved
true or otherwise - is now statutorily inhibited.
4. However, in refutation, Sri.K.Viswan - learned counsel
for the respondent, submitted that the afore assertions are wrong;
and that, going by the order of the learned Sessions Court, his
client can interact with the child, subject to the orders of the
learned Family Court. He argued that no unauthorised interaction
has ever taken place between his client and the child, either in
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the Court or in the Judge's Chambers; and concluded, arguing that
the Criminal case has been foisted against him by the petitioner,
solely to wreck vengeance and not because there was any such
incidence as alleged.
5. As we have said in the prefatory paragraph of this
judgment, we do not propose to speak in detail on the facts
because, the only question projected before us is whether the
accused in a 'POCSO' case can be permitted to have any
interaction or connection with the victim. Prima facie, any such is
inhibited by the Statute itself; and it is hence that we have earlier
issued an interim order on 09.09.2024, directing the learned
Family Court not to allow such; but we choose not to speak
further because, we are of the firm view that that the said Court
must consider Ext.P9, before any further steps are taken.
6. We are persuaded to the afore because, noticing the
rival contentions, we had called for a Report from the learned Fast
Track Special Court, Taliparamba, regarding S.C.No.147/2021 and
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we have now received the same; wherein, it is stated that the said
Court has not been able to commence trial because the Report
from the Forensic Science Laboratory is awaited. The said Report
is extracted below for ease of reference:
Communication of the Hon'ble High Court has been
received at 11.30 A.M. on 25.09.2024. After verifying the
records, the following report has been prepared.
The transferred SC.147/2021 from the Additional
Sessions Court, Thalassery, was received by the Fast Track
Special Court, Taliparamba, on 16.10.2023. On 15.03.2024,
charge was framed. On 21.05.2024, summons was also
issued CW1 and posted for evidence to 21.06.2024. On that
day, CMP.289/2024 was allowed. Stop memo was issued to
the witness. Defence have pointed out that FSL report is
very much necessary for the commencement of trial. Further
for getting extract of whatsapp chat, CMP.290/2024 was
also filed. Since the materials were forwarded to Cyber FSL,
the said petition was kept in abeyance. On 23.07.2024,
29.08.2024 and today on 25.09.2024 also, defence have
represented the matter and informed the court that they
also are desirous of expeditious trial. When the Court has
explored the scope for commencement of the trial, defence
have objected it by insisting that FSL report is a must.
In fact, on 20.06.2024, court has ordered to issue
reminder to FSL, but so far FSL has not responded. Still
now we are awaiting the FSL report from Cyber wing. It is
also submitted that, the FSL report from biological lab had
already been received by the Court. Three different reports
from the Cyber FSL has been received. So far Court has not
received any reply from the Cyber FSL.
Thus this report is humbly submitted for kind
consideration.
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In the afore circumstances, we allow this Original Petition to
the limited extent of directing the learned Family Court, Kannur,
to take up Ext.P9 application and dispose it of, after affording
necessary opportunity to both sides, as expeditiously as is possible,
but not later than two months from the date of receipt of a copy
of this judgment.
Needless to say, until such time as the afore exercise is
completed and the resultant order communicated to the parties,
our interim order dated 09.09.2024 will remain in force.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
RR
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APPENDIX OF OP (FC) 564/2024
PETITIONER EXHIBITS
Exhibit P1 True copy of the First Information Report along with
the First Information Statement dated 12.09.2020 in
Crime No. 454/2020 of Koothuparamba Police
Station, Kannur
Exhibit P2 True copy of the F.I.R in Crime No. 359/2020 of
Kudiyanmala Police Station
Exhibit P3 True copy of the final report in S.C No. 147/2021
on the files of the FastTrack special Court,
Taliparamba
Exhibit P4 True copy of the order dated 11.11.2020 in Crl. M.
C. No. 1138/2020 passed by the additional Sessions
Court-I, Thalassery
Exhibit P5 True copy of the order dated 23.06.2021 in Crl.MP
No. 944/2021 in Crl.MC No. 1138/2020 in SC No.
147/2021 passed by the Additional Sessions Court-I,
Thalassery
Exhibit P6 True copy of the petition in OP(G&W) No. 582/2021
on the files of the Family Court, Kannur
Exhibit P7 True copy of the objection filed by the Petitioner in
O.P. (G&W) No.582/2021 on the files of the Family
Court, Kannur
Exhibit P8 True copy of the proceeding sheet dated 13.06.2024
in SC No. 147/2021 on the files of the Fast Track
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Special Court, Taliparamba obtained from e-courts
Exhibit P9 True copy of the interlocutory application numbered
I.A No. 6/2024 in OP(G&W) No. 582/2021 dated
20.07.2024 on the files of the Family Court, Kannur
Exhibit P10 True copy of the proceedings sheet in OP(G&W) No.
582/2021 on the files of the Family Court, Kannur
Exhibit P11 True copy of the judgment in O.P(FC) No. 8/2022
dated 24.08.2022 passed by this Hon'ble Court
