Kerala High Court
Nanicheri Rajani vs State Of Kerala on 11 February, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
Tuesday, the 11th day of February 2025 / 22nd Magha, 1946
CRL.A NO. 1106 OF 2018
SC NO.495/2012 OF SPL. COURT FOR THE TRIAL OF OFFENCES AGAINST WOMEN AND
CHILDREN, THALASSERY
APPELLANT/ACCUSED:
NANICHERI RAJANI, AGED 38 YEARS,
W/O.PRAVEEN KUMAR,NANICHERI HOUSE,
ARAYOLAM,NARIKKOD, EZHOME AMSOM.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
This Criminal appeal coming on for orders on 11-02-2025 upon
perusing the appeal and upon hearing the arguments of M/S.NANDAGOPAL
S.KURUP,SRI.K.ASHIS, Advocates for the petitioner and of the PUBLIC
PROSECUTOR for the respondent, the court passed the following:
P.T.O.
Crl.A.No. 1106 of 2018 1
RAJA VIJAYARAGHAVAN V & P.V.BALAKRISHNAN, JJ.
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Crl.A No. 1106 of 2018
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Dated this the 11th day of February 2025
ORDER
Raja Vijayaraghavan, J.
This order shall be read in continuation to the order dated 3.2.2025 as per
which, this Court had issued directions to the Registry to furnish before this
Court the following details.
a) The details of cases in which reference orders under Rule 131 of
the Criminal Rules of Practice, Kerala, 1982, have been forwarded
by the Sessions Courts.
b) Whether such references have been placed before the
Government as mandated under Rule 131 of the Criminal Rules of
Practice?
c) Whether, in any case where a mother has been convicted of
infanticide, the learned Sessions Judge has failed to forward the
reference to this Court for onward transmission to the
Government?
2. We had also directed that a preliminary inquiry be conducted to
ascertain what transpired in this matter with regard to the reference and fix the
liability upon the individuals concerned. In terms of the directions, the report of
the Registrar (Judicial) is placed before us. After looking into all the records, it is
reported as follows by the Registrar (Judicial):
"On the basis of the documents and information referred
above, it is submitted that Annexure-I Reference happened to be
transmitted to Criminal R.P Section by mistake, along with
Crl.A.No. 1106 of 2018 2
Annexure-II calendar statements and later presumed to have been
destroyed, pursuant to Annexure-V, permission granted for
destruction of records. In such situation, I may submit that original
of Annexure-I Reference is irrecoverably lost due to mistake
committed by the Tapal Section and Crl.RP Section during 2018."
3. We find from the report that the primary responsibility has been
fixed on certain officers.
4. We direct the Registrar to pursue the matter and take it to its
logical conclusion by following the procedure and in accordance with the law.
The Registry shall also ensure that such lapses do not occur in future.
5. Insofar as the pending matters are concerned, the Registry has
furnished us with the details of the cases in which reference under Rule 131 of
the Criminal Rules of Practice, Kerala, 1982 is required to be made.
6. The report we have received reveals a sad state of affairs. We
extract the details furnished by the Registry.
Sl. Crl.A. Name of Lower Court Details Rule 131 Whether
No. appellant reference reference
in trial has been
court's received
judgment in High
Court
1 Crl.A. NANICHERI S.C.495/2012 of I Referred Yes
1106/2018 RAJANI ADDITIONAL SESSIONS (Missent to
COURT, THALASSERY Criminal
R.P.
2 Crl.A. SHARNYA S.C.460/2011 OF No
1374/2018 ADDITIONAL SESSIONS reference
COURT, IV, THRISSUR
3 Crl.A. MARAGATHAM @ S.C.91/15 OF SPECIAL No
667/2019 CHINNATHANGA COURT (POCSO), reference
PALAKKAD
Crl.A.No. 1106 of 2018 3
4 Crl.A. SABEENA G.K. S.C.25/2018 OF I No
292/2020 ADDITIONAL SESSIONS reference
JUDGE, KOZHIKODE
5 Crl. A. AYISHA S.C.No.418/2014 OF No
314/2020 SPECIAL COURT, reference
MANJERI
6 Crl.A. RAMATHA S.C.686/2015 OF I No
592/2020 ADDITIONAL SESSIONS reference
JUDGE, PALAKKAD
7 Crl. A. SHAILAJA S.C.No.158/2017 OF No
777/2020 SESSIONS COURT, reference
THRISSUR
8 Crl. A. AMBILI S.C.No.599/2015 OF Referred No
545/2022 ADDITIONAL SESSIONS
JUDGE, IRINJALAKUDA.
9 Crl. A. SHIBINA @ S.C.No.771/2015 OF Referred No
962/2023 SUHARA ADDITIONAL SESSIONS
COURT(AD HOC) II,
PALAKKAD
10 Crl. A. AMBILI @ AMMU S.C.No.628/2020 OF Referred Yes
118/2024 ADDITIONAL SESSIONS
COURT(AD HOC),
KOLLAM
11 Crl. A. SALINI S.C.No.1071/2021 OF Referred Yes
1024/2024 ADDITIONAL SESSIONS
COURT FOR TRIAL OF
OFFENCES AGAINST
WOMEN AND
CHILDREN, ERNAKULAM
12 Crl. A. ANJANA S.C.No.91/2020 OF Referred Yes
1672/2024 ADDITIONAL SESSIONS
COURT, MAVELIKKARA
13 Crl. A. VIJEESHA S.C.No.269/2015 OF No
989/2023 SESSIONS COURT, reference
THODUPUZHA
14 Crl. A. USHA S.C.No.546/2016 OF No
492/2024 SESSIONS COURT, reference
THALASSERY
7. The state of the reference applications are as under:
Out of 14 pending Criminal Appeals as per data in the table above,
Crl.A.No. 1106 of 2018 4
Rule 131 References are received only in 3 cases and no Reference is seen
received in the remaining 11 cases. Out of these 11 cases, References are
reported to be made only in 3 cases and no Reference was made in the
remaining 8 cases. Even in respect of the 3 cases in which References are
made, no communication is received in D1 Section and hence no forwarding
of the References made to Government. Copies of letter issued from
D1-Section forwarding References in SC No. 91/2020, 628/2020 &
1071/2021 are produced and marked as Annexure - VIII series.
8. We note that in several cases, the learned Sessions Judge
concerned has not made the reference. In Harshad Gupta v. State of
Chhattisgarh1, the Sessions Judge who passed the judgment was transferred
after passing the judgment and before hearing and fixing the quantum of the
sentence. A contention was taken that with the transfer of the Presiding Officer
post his conviction, the new Presiding Officer was obligated to hear him afresh
even on the question of conviction. It was held that the successor officer could
hear the appellant on the question of sentence and pass an appropriate order. In
the case of a reference under Rule 131 of the Criminal Rules of Practice, the
exercise carried out by the learned Sessions Judge is purely administrative. If the
learned Sessions Judge who has passed the judgment has been transferred or
has retired, the reference can also be made by any other Sessions Judge
occupying the seat of the transferred or retired Judge.
9. It is also pertinent to note that the Mental Healthcare Act, 2017
came into force on 29.5.2018 wherein Section 115 has been incorporated which
reads as under:
(2024) 10 SCC 404)
Crl.A.No. 1106 of 2018 5
115. Presumption of severe stress in case of attempt to commit
suicide.--
(1) Notwithstanding anything contained in section 309 of the Indian
Penal Code (45 of 1860) any person who attempts to commit
suicide shall be presumed, unless proved otherwise, to have
severe stress and shall not be tried and punished under the said
Code.
(2) The appropriate Government shall have a duty to provide care,
treatment and rehabilitation to a person, having severe stress and
who attempted to commit suicide, to reduce the risk of recurrence
of attempt to commit suicide.
10. The incorporation of the provision in the Act of 2017 emphasises
the concern of the legislature for persons who may have decided to take their
own life due to severe stress or other debilitating conditions. Failure to forward
the reference by the Court concerned or the non-forwarding of the reference to
the Government by the Registry cannot be taken lightly and remedial measures
are to be taken without delay as it would seriously affect the legal and statutory
rights of the appellant for an expeditious consideration of the reference.
11. In that view of the matter, the Registry is directed to take urgent
measures:
a) In cases wherein references have not been made in terms of Rule 131
of the Criminal Rules of Practice, and if the Sessions Judge who
passed the judgment is available, fresh reference shall be obtained,
which shall be forwarded to the Government. If the Sessions Judge
who passed the judgment has been transferred or has retired, a
reference order shall be obtained from the Judge occupying the seat
for forwarding it to the Government.
b) In cases wherein references have been made but misplaced or lost
due to carelessness or for any other reason, steps be taken to obtain
copies of the reference, if any, from the concerned Court and if such
copy is obtained, the same shall be placed before the court concerned
for passing appropriate orders
c) In cases where references have not been made and it is not possible
to obtain a reference for one reason or another, the matter shall be
posted before the Court for passing appropriate orders.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
P.V.BALAKRISHNAN,
JUDGE
APM
11-02-2025 /True Copy/ Assistant Registrar
