Esther Jacob vs Humble Joseph
2026 Latest Caselaw 44 Ker

Kerala High Court

Esther Jacob vs Humble Joseph on 6 January, 2026

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O.P.(Crl.)No.285/2023
                                          -:1:-

                        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                          THE HONOURABLE MR. JUSTICE G.GIRISH

                         TUESDAY, THE 6TH DAY OF JANUARY 2026 /

                               OP(CRL.) NO. 285 OF 2023

      AGAINST THE ORDER DATED 18.11.2022 IN CRRP NO.16 OF 2022
  OF THE ADDITIONAL DISTRICT COURT & SESSIONS COURT, ERNAKULAM

PETITIONER/REVISION PETITIONER/COMPLAINANT:

                    ESTHER JACOB,​
                    AGED 54 YEARS,​
                    THAREPARAMBIL, CC 22/842 B,(16/1075)
                    EDAKOCHI, PIN - 682010


                    BY ADVS. SHRI.M.H.HANIS​
                             SMT.T.N.LEKSHMI SHANKAR​
                             SMT.P.M.JINIMOL​
                             SMT.NANCY MOL P.​
                             SHRI.ANANDHU P.C.


RESPONDENTS/RESPONDENTS /ACCUSED NOS.1 AND 2 & STATE:

        1           HUMBLE JOSEPH,​
                    AGED 33 YEARS,​
                    S/O P.S. JOSEPH,
                    PUTHENPARAMBIL VEEDU,
                    NEAR KACHERIPADY,
                    MUSLIM MOSQUE,
                    PALLURUTHY, KOCHI,
                    PIN - 682006

        2           P.S. JOSEPH​
                    AGED 59 YEARS​
                    S/O P.A. SANDHYAV,
                    PUTHENPARAMBIL VEEDU,
                    NEAR KACHERIPADY,
                    MUSLIM MOSQUE,
                    PALLURUTHY, KOCHI,
                    PIN - 682006
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O.P.(Crl.)No.285/2023
                                       -:2:-



        3           STATE OF KERALA ​
                    REPRESENTED BY PUBLIC PROSECUTOR,
                    HIGH COURT OF KERALA,
                    KOCHI, PIN - 682031


                    BY ADV SRI.S.SUJIN
                       SRI RENJIT GEORGE, SR. PUBLIC PROSECUTOR

     THIS   OP  (CRIMINAL)   HAVING  BEEN   FINALLY   HEARD ON
18.12.2025, THE COURT ON 06.01.2026 DELIVERED THE FOLLOWING:
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O.P.(Crl.)No.285/2023
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                                 JUDGMENT

The order of the Judicial First Class Magistrate Court-II, Kochi in

C.C No.1/2020 discharging the accused in the said case under Section

245(1) Cr.P.C, which has been upheld in revision by the Additional

Sessions Court-VI, Ernakulam, is under challenge in this Original Petition

filed by the complainant under Article 227 of the Constitution of India.

2.​ The proceedings before the learned Magistrate arose out of a

protest complaint filed by the petitioner in Crime No.771/2016 of

Palluruthy Police Station, wherein the allegation against the respondents

1 and 2 was that they committed offences punishable under Sections

323, 509, 354 and 448 I.P.C r/w 34 I.P.C. After the completion of the

enquiry under Section 200 Cr.P.C, the learned Magistrate took the

complaint to files as C.C No.1/2020 and issued summons to respondents

1 and 2 herein. Both the respondents appeared before the Trial Court,

and they were released on bail. During the course of evidence under

Section 244 Cr.P.C, the petitioner and one witness were examined as

PW1 and PW2 respectively and Exts.P1 to P12 were marked. Though

PW1 was cross-examined, the cross-examination of PW2 was deferred as

opted by the defence. After hearing both sides, the learned Magistrate 2026:KER:2

arrived at the finding that no case against the accused has been made

out, which, if unrebutted, would warrant their conviction. Accordingly,

the learned Magistrate discharged the accused (respondents 1 and 2

herein) under Section 245(1) Cr.P.C holding that the charge against them

is groundless.

3.​ The petitioner herein challenged the above order of the

learned Magistrate in revision before the Additional Sessions Court-VI,

Ernakulam. The learned Additional Sessions Judge embarked upon a

detailed evaluation of the evidence on record and held that there was no

reason to interfere with the impugned order of the learned Magistrate

discharging the accused. Aggrieved by the above concurrent findings of

the courts below, the petitioner is here before this Court with this

revision.

4.​ Heard the learned counsel for the petitioner, the learned

counsel for respondents 1 and 2, and the learned Public Prosecutor

representing the State of Kerala.

5.​ As per Ext.P1, which is the complaint upon which the learned

Magistrate initiated the proceedings, the allegation against the

respondents 1 and 2, who are the petitioner's brother's son and brother

respectively, is that they criminally trespassed into her house on 2026:KER:2

27.03.2016, uttered sexually coloured obscene words, slapped her and

dragged her by getting hold of her hair. The further allegations in the

complaint pertain to the persistent harassment and humiliation meted

out to the petitioner by the respondents 1 and 2 by tapping her phone

conversations and depicting her and her family members as insane

persons with low morale. It is further stated in the complaint that the

grievance of the petitioner in the above regard had not been redressed

though she preferred numerous complaints before the police and other

authorities.

6.​ While adducing evidence before the Trial Court as PW1, she

reiterated the aforesaid allegations, though with minor variations. A

neighbour of the petitioner, who was examined as PW2, swore before the

learned Magistrate about the act of the respondents 1 and 2 verbally

abusing and physically assaulting the petitioner inside her house on

27.03.2016. The learned Magistrate observed in paragraph No.8 of the

impugned order that PW1 did not state that she had sustained hurt at

the hands of the accused and there was also no medical evidence to

show that she had any injury. For the above reason, the learned

Magistrate declined to accept the allegation that respondents 1 and 2

committed the offence under Section 323 I.P.C. As regards the offence 2026:KER:2

under Section 509 I.P.C, the learned Magistrate observed that the

petitioner had not specified the actual words or gesture which insulted

her modesty. The learned Magistrate further held that since the

statement of PW1 did not contain anything to show that respondents 1

and 2 applied criminal force upon her to outrage her modesty, the

offence under Section 354 I.P.C is not made out. On the allegation of

house trespass coming under Section 448 I.P.C, the learned Magistrate

held that since the offences under Sections 323, 354 and 509 I.P.C are

not made out, the entry of the accused into the residence of the

complainant cannot be termed as criminal trespass. In addition to the

aforesaid findings, the learned Magistrate has delved upon the conduct

of the complainant preferring complaints against various persons before

various authorities and extracted a paragraph from a text book on

Medical Jurisprudence and Toxicology wherein it is stated that

suspiciousness is the characteristic symptom of paranoid schizophrenia at

the early stages. Certain other contents of the said book in which

delusions of persons suffering from paranoid schizophrenia about others

persecuting them by poisoning them and also plotting against them for

ruining them, are also quoted with emphasis in paragraph No.10 of the

impugned order of the learned Magistrate. Thereafter, in paragraph 2026:KER:2

No.11 of the impugned order, the learned Magistrate went on to observe

that the complainant had preferred various kinds of complaints before

various authorities and that the nature of the allegations were weird.

Accordingly, the learned Magistrate arrived at the conclusion that if he

decides to proceed further against the accused persons on that

complaint, it will be a miscarriage of justice.

7.​ It is apparent from the impugned order of the learned

Magistrate that the analysis and observations thereunder were far

beyond the scope of the parameters to be looked into for arriving at the

conclusion as to whether no case against the accused has been made

out, which if unrebutted, would warrant their conviction. It seems that

the learned Magistrate went on with the analysis of evidence as if he had

been deciding the merits of the case at the conclusion of trial. The fact

that the evidence on record clearly brought out the alleged act of the

respondents 1 & 2 entering into the house of the petitioner and

physically assaulting her by getting hold of her hair and slapping her, has

been ignored by the learned Magistrate. The observation that the

petitioner did not state that she sustained hurt at the hands of the

accused and that there were no medical evidence showing injury, are

totally out of place since the witnesses examined in the case 2026:KER:2

categorically stated that the accused resorted to physical assault upon

the complainant inside her house by getting hold of her hair and slapping

her. Going by the established principles of law pertaining to the standard

of proof to be looked into at the stage of framing of charges, the

evidence led in the above regard was more than enough to conclude that

the accused are liable to face criminal prosecution for the commission of

offence under Sections 448 & 323 I.P.C.

8.​ In State of Rajasthan v. Fatehkaran Mehdu,

[(2017) 3 SCC 198], the Apex Court made it clear that at the

stage of framing of charges it is neither permissible nor in

consonance with the scheme of procedures to hold that court

should form an opinion that the accused is certainly guilty of

committing the offence alleged. The relevant paragraph of the

said judgment is extracted hereunder:

"26. The scope of interference and exercise of jurisdiction under Section 397 CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge 2026:KER:2

is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure."

9.​ In Kunhali Haji v. State of Kerala (2004 (2) KLT 713) a

learned Single Judge of this Court held that the golden scale of

evaluation of evidence is not the method of appreciation of evidence at

the stage when the court is to decide on the framing of charges based

on the evidence adduced under Section 244 Cr.PC. The relevant

paragraph in the aforesaid decision is extracted hereunder:

"5. The law on the point is well settled. At the stage of S.245(1) of the Cr.P.C., the learned Magistrate is not expected to resort to the exercise of weighing the evidence in golden scale. The learned Magistrate need only consider at that stage whether such a case has been made out which if unrebutted would warrant a conviction. If such a case has been made out, charge has to be framed under S.246 of the Cr.P.C. presuming that the accused has committed the offence. If such a case has not been made out, the accused must be discharged under S.245(1) of the Cr.P.C."

10.​ Unfortunately, the learned Magistrate lost sight of pertinent

aspects in the above regard, and even embarked upon extraneous

matters far beyond the scope and ambit of Sections 244 & 245 Cr.PC.

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11.​ It could be seen from the order of the Revisional Court also

that the limited scope of the analysis of the evidence adduced under

Section 244 Cr.PC, was overlooked. The Revisional Court also embarked

upon hair-split analysis of the evidence on record as if at the final stage

of the trial, and erroneously concurred with the findings of the learned

Magistrate. An elaborate ratiocination of the evidence of PW1 & PW2 in

the context of minor inconsistencies and incompatibilities has been

adopted by the Revisional Court to arrive at a finding upholding the

decision of the learned Magistrate. The above course of action of the

Revisional Court is apparently one exceeding the scope of the powers

which could be exercised under Section 397 Cr.PC. Therefore, the

impugned orders of the courts below are liable to be interfered with in

exercise of the supervisory jurisdiction of this Court under Article 227 of

the Constitution of India. Needless to say, the prayer of the petitioner to

set aside the aforesaid orders, deserves to be allowed.​

In the result, the petition stands allowed as follows:

(i)​ Exts P2 and P3 orders of the Judicial First Class Magistrate Court-II, Kochi, and the Additional Sessions Court-VI, Ernakulam, in C.C.No.1/2019 & Crl.R.P.No.16/2022, respectively, are hereby set aside.

2026:KER:2

(ii)​ The case is remitted back to the Trial Court with the direction to the learned Magistrate to consider the matter afresh, in the light of the observations in this order and to pass orders in the matter of framing charges within the purport and scope of Sections 245 & 246 Cr.PC (Sections 268 & 269 of the Bharatiya Nagarik Suraksha Sanhita, 2023).

(Sd/-) G. GIRISH, JUDGE

jsr/DST 2026:KER:2

APPENDIX

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE PETITIONER

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 18.01.2022 C.C.NO.1/2019 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOCHI

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 18.11.2022 IN CRL. R.P.NO. 16/2022 C.C.NO.1/2019 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE-VI, ERNAKULAM