Madras High Court
Kavitha vs State Of Tamil Nadu on 1 April, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P(MD).No.665 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 30.01.2025
Pronounced on : 01.04.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P(MD).No.665 of 2025
Kavitha ... Petitioner
Vs.
1.State of Tamil Nadu,
Through the Superintendent of Police,
Sivagangai District,
Sivagangai.
2.The Deputy Superintendent of Police,
Karaikudi Subdivision,
Sivagangai District.
3.The Deputy Superintendent of Police,
CBCID,
No.7, Kamarajar Nagar, 2nd Street,
Chinnachokkikulam,
Madurai.
4.The Inspector of Police,
All Women Police Station,
Karaikudi,
Sivagangai District.
(In Crime No.8 of 2024)
5.Ramesh @ Shanthinathan ... Respondents
1/19
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Crl.O.P(MD).No.665 of 2025
(R5 impleaded as per order dated 30.01.2025
made in Crl.M.P.(MD).No.1391 of 2025)
PRAYER: Criminal Original Petition is filed under Section 528 of
BNSS, to pass an order transferring the investigation in the case in Crime
No.8/2024 on the file of the 4th respondent Police to the 3rd respondent
and the 3rd respondent or any other independent officer, based on the
petitioner’s representation dated 04.07.2024.
For Petitioner : Mr.S.Sabbari Karpura Jothi
For R1 to R4 : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
For R5 : Mr.C.Muthu Saravanan
ORDER
The petitioner/defacto complainant in Crime No.8 of 2024 filed
this petition to transfer the investigation in Crime No.8 of 2024 from the
file of the 4th respondent to the file of the 3rd respondent based on the
petitioner's representation dated 04.07.2024.
2.In the representation, the petitioner narrated about the complaint
dated 16.05.2024, based on which a case was registered against one
Ramesh. Her primary grievance is that though FIR registered, since the
said Ramesh belongs to a dominant community in the area and his
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brother Sargunam an Advocate, they threatened the petitioner and her
family members not to pursue the complaint further and the respondent
police not taking any effective action by arresting the accused which
further embolden the said Ramesh and his brother Sargunam to continue
their threat against the defacto complainant, victim and her family
members. Hence, she sent a representation to the Inspector General of
Police, Southern region, Superintendent of Police, Deputy
Superintendent of Police and Inspector of Police, but no action taken.
Hence, the present petition.
3.This Court on 10.01.2025 recorded the following and posted the
case on 21.01.2025 for appearance of the petitioner and the witness in the
Chambers:
“In this case the mother of the victim has filed a
petition seeking transfer of investigation.
2.The learned Additional Public Prosecutor
informs that in this case the victim was earlier
summoned by this Court when the accused has filed
anticipatory bail petition and thereafter there was
interaction for quite some time. After interacting with
the petitioner, as well as the victim and safety of the
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victim and also after taking steps to provide her
compensation through Government thereafter
anticipatory bail was granted. Thereafter the victim was
examined yesterday before the trial Court and she had
turned around and not supported the case of prosecution.
3.In view of the same this Court needs to interact
with the petitioner what has happened and why this
petition has been filed on the other hand the witness has
turned hostile and to ascertain whether the witness is
free to depose before the trial Court.
4.Hence the petitioner and the witness are directed
to appear before this Court on 21.01.2025 at 2.30 pm., in
the chamber.
5.Till such time, the Protection of Children from
Sexual Offences Court, Sivagangai is directed not to
pronounce judgment in the case in Crime No.8 of 2024.”
4.On her appearance, the victim who is a minor aged about 16
years gave written representation narrating how she and her family
members were constantly followed and threatened, thereafter fearing for
their life, limb and security, they resiled from earlier statement.
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5.The learned counsel for the fifth respondent submitted that
when he moved an anticipatory bail petition before this Court in Crl.O.P.
(MD).No.19378 of 2024 and a quash petition in Crl.O.P.(MD).No.14839
of 2024, both the petitions were disposed of on 13.12.2024 dismissing
the quash petition on the other hand granting anticipatory bail to the said
Ramesh and thereafter, trial commenced. On 09.01.2025, the
victim/minor girl was examined as P.W.1, her mother examined as P.W.2
and the victim's elder sister examined as P.W.3 All the three witnesses
not supported the case of the prosecution. In fact, the victim girl in her
evidence states that her parents borrowed loan from the Finance
Company owned by the said Ramesh, since they were unable to repay the
loan along with interest and there was some dispute, suppressing this fact
a complaint was lodged against him. The victim deposed that she is not
aware what is written in the complaint and in the 164 Cr.P.C. statement
she deposed that presently she is unable to recollect as to what she had
stated and what is recorded. The victim's signature found in the 164
Cr.P.C statement alone marked as Ex.P1, her date of birth 14.12.2008
recorded in the Birth Certificate marked as Ex.P2 and the admitted
portion of 164 statement marked as Ex.P3. The mother of the victim,
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P.W.2 confirms the loan of Rs.2,00,000/- borrowed from the Finance
Firm owned by Ramesh, her inability to pay the loan along with interest
and lodging of the complaint. This witness states that she is not aware as
to what is written in the complaint and her signature alone marked as
Ex.P4. The victim's elder sister/P.W.3 confirms about the loan, their
inability to repay the loan and lodging of the complaint. Thus, a dispute
with regard to repayment of loan and demand for interest manifested,
given a criminal colour, taking advantage of the victim's age, who is a
minor and sexual assault complaint lodged under POCSO Act.
6.The learned counsel further submitted that in this case neither
the said Ramesh nor his brother Sargunam or any of his family members
or any of their acquaintance exerted any pressure or force to the victim
and her family members to depose in support of them. Earlier the said
Ramesh filed a quash petition in Crl.O.P.(MD).No.14839 of 2024 and it
was filed along with the affidavit filed by the defacto complainant stating
that a false complaint was given and she is willing to withdraw the
complaint, but this Court recorded that on interacting with the defacto
complainant it is found that the affidavit filed is by force, not voluntary
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and dismissed the quash petition, by giving direction to complete the trial
within a period of three months. Further, on 09.01.2025, P.W.1 to P.W.3
examined before the Trial Court and all three witnesses resiled from their
earlier statement, not supported the case of the prosecution. He further
submitted that the petitioner not approached the Trial Court by filing
appropriate petition under Section 156(3) Cr.P.C. seeking further
investigation, on the other hand approached this Court directly which
cannot be entertained in view of Vinay Tyagi vs. Irshad Ali alias
Deepak and others reported in 2013 (5) SCC 762. Hence, prayed for
dismissal of the petition.
7.The learned Additional Public Prosecutor submitted that in this
case, the accused belongs to a dominant community in the area with
considerable money, muscle and political power. The victim a minor
studying 10th Standard, during her school annual holiday to support her
family she got employed in the Finance Firm owned by the accused
Ramesh. During the lunch hours when no one in the Office, taking
advantage of the loneliness the victim girl was sexually assaulted not
once but on several occasions over a period of 15 days. The victim girl
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unable to bear the sexual assault cried to her mother and disclosed the
happenings. Thereafter, the defacto complainant along with the victim
lodged a complaint to the Police, who registered a FIR, examined the
victim and her mother, the victim was produced before the Magistrate
and 164 Cr.P.C. statement recorded where she confirms the abuse and the
sexual assault. The accused absconded and unable to be secured.
Despite dismissal of the anticipatory bail petition on more than one
occasion. He would submit that the brother of the said Ramesh, namely,
Sargunam, is an Advocate who has good networking, well connected,
ensured his brother Ramesh is saved by all means. The victim and her
mother/defacto complainant appeared on the directions of this Court, the
learned Additional Public Prosecutor interacted with them, both
disclosed the ordeals they faced at the hands of the accused, his brother
and others. At each stage, they were shadowed and followed by a battery
of Advocates and muscle men. The victim belongs to a minority
community in the Village and were unable to raise voice or show their
protest against the accused and his men who belong to a dominant
community. The situation was not conducive. The victim and her family
always under threat fearing for safety of their life and limb. The
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Additional Public Prosecutor informed the Superintendent of Police to
provide adequate protection and also ensure that the compensation is
provided to the victim. He further submitted that Victim Compensation
Scheme, 2013 was formulated on 30.11.2013 and further, G.O.Ms.No.33
Social Welfare and Nutritious Meal Programme [SW.5(2)] Department
dated 03.10.2020 issued for awarding compensation to the victims under
the Tamil Nadu Child Victim Compensation Fund under the Protection
of Children from Sexual Offences Act, 2012.
8.He further submitted that the threat to the victim and family is by
slow of physical force and psychological force which has deferred them
talking the truth before the Trial Court. He submitted that whatever the
above case was listed, there was battle of Advocates following the case
creating surcharged atmosphere.
9.Considering the submissions made and on perusal of the
materials placed on record, it is seen that in this case the victim is
16 years old school going minor girl, during the school annual vacation
she worked in the Finance firm of the accused for a monthly salary of
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Rs.6,000/-. The victim is a bright student, very much interested to
continue her education. She informed that she is interested to pursue her
education in Law, become an Advocate in future to get emboldened,
fight against the atrocities and the sufferings of the victims like her. She
joined employment only to augment the income for her parents. Her
father is a Carpenter, her mother is a house wife with health ailments and
her brother is a daily wager in Tiruppur and they are facing lot of
financial constraints. The victim's parents borrowed a sum of
Rs.2,00,000/- which was repaid but exorbitant interest demanded to keep
them bonded under hook. There was some dispute in this regard.
Admittedly the said Ramesh belongs to a dominant community and the
victim hails from marginalised community from the same Village.
Taking advantage of the dominance and loneliness of victim in the office
during lunch hours, the victim was sexually assaulted not once but on
several occasions. The victim unable to bear the sexual assault informed
her mother about the pain and sufferings and mental trauma and
thereafter, complaint lodged. It is also seen that the occurrence is said to
have taken place on 30.04.2024 and continued for 15 days, the complaint
was lodged only on 16.05.2024, FIR registered in Crime No.8 of 2024
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for the offence under Sections 7 and 8 of POCSO Act and 506(i) IPC.
The accused became evasive not arrested. Thereafter, this Court granted
anticipatory bail on 13.12.2024 since the Police unable to apprehend the
accused for more than six months and reported investigation completed.
The accused filed a quash petition in Crl.M.O.P.(MD).No.14839 of 2024
along with the compromise affidavit of the defacto complainant. This
Court doubting the genuineness of the compromise affidavit had
interaction with the defacto complainant and the victim in chamber
narrated the plight of their sufferings, pain, threat for their life and limb.
Thereafter, this Court directed the concerned Police to give protection.
The learned Additional Public Prosecutor was advised to monitor the
movement of the victim and to instruct the jurisdictional Police
accordingly. But to the shock and surprise, it came to know that when
the victim, her mother and her sister deposed on 09.01.2025 before the
Trial Court all three witnesses were forced to resile from their earlier
statement; the present petition though filed earlier, when it came up for
hearing on 10.01.2025 the learned Additional Public Prosecutor informed
about the victim and her family resiling from their earlier statement. This
Court was shocked to hear the same since earlier when interacted on
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21.12.2024 in chambers, the victim though initially was hesitant to open
up, after sometime she disclosed the happenings with tears, how she was
exploited and after gaining confidence, she got embolden and disclosed
the entire facts. Hence, the victim was again directed to appear before
this Court to find out why she reviled from her earlier statement. The
victim appeared and gave a written representation addressed to the
Inspector of Police, All Women Police Station, Karaikudi, in her own
hand, which is as follows:
kjpg;gpw;Fhpa mk;kh
tzf;fk; mk;kh ehDk; vd; mk;kht[k;
Fw;wthsp unkc&; kPJ nghf;nrh
tHf;Fgjpt[ bra;jpUe;njhk;/ ,jd; fhuzkhf
Fw;wthsp unkc&pd; jk;gp rw;Fzk;
tHf;fwp"hpd; Ml;fs; vd;ida[k; vd;
mk;khita[k; kpul;odh;/ eh';fs; tHf;fpd;
Muk;gj;jpy; brd;w tHf;fwp"h; kndh$;
fpnc&hh; vjphpapk; jk;gpa[k; tHf;fwp"h;
rw;Fzk; mth;fs; brhy;tij kl;Lk;
nfS';fs; vd;W Twpdhh; (k) mth; Ml;fs;
v';fisa[k; vd; FLk;gj;jpy; mf;fh. mk;kh.
vd vy;nyhiua[k; gpd;bjhlh;e;J
kpul;lr;bra;jhh;fs;/ Kfk; bjhpahj ntWntW
egh;fs; gpd;bjhlu Muk;gpj;jhh;fs;/
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FLk;gj;njhL midtiua[k;
bfhz;WtpLnthk; eh';fs;
bra;ahtpl;lhy; ,e;j Cnu eh';fs; jhd;/
v';fis kPwp ahUk; VJk; bra;aKoahJ/
bjhlh;r;rpahf 10 egh;fSf;F nky; te;J
kpul;odh;/ ,jdhy; v';fSf;F vd;d
bra;tbjd;W bjhpahky; mth;fs; v';fis
fhhpy; miHj;J eh';fs; brhy;tij
kl;Lk;jhd; ePjpgjpaplk; Twntz;Lk; vd;W
nghyp!pd; typa[Wj;jyhy; kl;Lnk eh';fs;
bgha;ahd tHf;if rpj;jhpj;J tHf;fF
FLj;jJnghy; tHf;fwp"h; rw;Fzk; v';fis
kpul;o ePjpgjpaplk; Twitj;jhh;/ tpidahf
v';fs; FLk;gj;jhh;fisa[k; FHe;ijfisa[k;
mth; Ml;fs; Rw;wptisj;J brhy;y
itj;jhh;fs;/ ,jdhy; bra;tjwpahJ
mth;fs; TwpaJnghy; eh';fs; ePjpgjpaplk;
Twpndhk;/ ele;j Fw;wk; midj;Jk;
cz;ik/ FLk;gj;jpd; caph;f;fhf;fnt ehd;
midj;ija[k; cz;ikf;F khwhf
brhy;yntz;oa eph;ge;jj;jpy; ,Ue;njd;/
mk;kh Fw;wthsp jg;gpf;fnt
TlhJ ,Jnghy; ahUf;Fk; ,dpnky;
elf;fTlhJ/ v';fSf;F nghjpa
ghJfhg;g[ mspj;J eh';fs; jw;bghGJ
fhty;Jiwapd; ghJfhg;gpy; ehDk; vdJ
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FLk;gj;jhUk; ,Uf;nfhk; vd
bjhptpj;Jbfhs;fpnwhk; vd jhH;ika[ld;
nfl;Lbfhs;fpnwd;/
10.The statement of the victim is a testimony of how a voiceless
victim can be throttled exploited by the dominant with societal clout. It
is seen that in the case of Mahender Chawla and others vs. Union of
India and others reported in 2019 (14) SCC 615, the Apex Court dealt in
detail the plight of the witnesses and how large percentage of acquittals
in criminal cases happening due to witnesses turning hostile and giving
false testimonies, mostly due to lack of protection for them and their
families, especially in case of women and children. It further held that
free, frank and fearless deposition are important for trial and if the same
is happened by threat to life, reputation, property of the witnesses or
family members or through harassment or intimidation by or on behalf of
the accused, it is nothing but affecting the right under Article 21 of the
Constitution of India.
11.Further in the case of Zahira Habibullah Sheikh and another
vs. State of Gujarat and others reported in (2004) 4 SCC 158, wherein
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the Apex Court finding that when the atmosphere in a State is not
conducive had set aside the acquittal of the accused and transferred the
case from one State to another State and directed the trial to commence
afresh, with various other directions, primarily given direction to the
witness to come out freely and frankly without fear to depose the truth.
12.In view of the above, it is clear that in this case, the defacto
complainant (mother), minor victim and her sister all put to fear of life,
limb and property, their existence and livelihood in the village becomes
questionable, further they are constantly shadowed by muscle men
exerting psychological pressure not to depose freely. The defacto
complainant earlier filed a compromise affidavit before this Court in the
quash application filed by the accused, which was found obtained by
force and threat, not by free will, which is further fortified when the
defacto complainant (mother of the victim), victim and her sister resiled
from their earlier statement before the Trial Court. In view of the same,
this Court finds that recording of evidence made so far is not free and fair
one. Hence, this Court set asides and wipes out the evidence so far
recorded.
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13.This Court in the above facts is certain that Justice will not be
done, if the trial is allowed to coninue in such hostile atmosphere and the
trial will be a mockery. Witnesses are the eyes and ears of Justice.
Drawing inspiration from Zahira Habibullah Sheik’s case, where the
Apex Court quotes from Jennison vs. Backer (1972 (1) ALL ER 1006)
“The law should not be seen to sit by limply, while those who defy it go
free and those who seek its protection loose hope”. Hence, this Court in
the interest of justice and fairness, is convinced that Justice shall be done
and ensured to be done, only if the above case is transferred from the
District of Sivagangai to some other District.
14.Accordingly, the case in Spl.S.C.No.126 of 2024 pending
before the Speical Court for Exclusive Trial of Cases under POCSO Act,
2012, Sivagangai is transferred to the Mahila Court/Speical Court for
Trial of Cases under POCSO Act, 2012, Tiruchirappalli.
15.The Speical Court for Exclusive Trial of Cases under POCSO
Act, 2012, Sivagangai is directed to forthwith transfer the case bundle
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and records in Spl.S.C.No.126 of 2024 to the file of the Mahila
Court/Special Court for Trial Court of Cases under POCSO Act,
Tiruchirappalli. On receiving the case records, the Mahila Court/Special
Court for Exclusive Trial of Cases under POCSO Act, Tiruchirappalli to
proceed with the trial by examing the witnesses afresh on day-to-day
basis and complete the same preferrably within a period of four months
from the date of receipt of the case bundle and records. The Deputy
Superintendent of Police, Karaikudi Division and the Commissioner of
Police, Tiruchirappalli to provide adequate protection to the victim and
all witnesses in the case and to ensure they depose in a free and fair
manner. The proceedings to be conducted in camera by the Trial Court.
16.With the above directions, the Criminal Original Petition stands
allowed.
01.04.2025
Neutral Citation: Yes/No
Speaking order/Non-speaking order
Index: Yes/No
cse
Copy to:-
The Judge,
Mahila Court / Special Court for Exclusive Trial
of Cases under POCSO Act, Tiruchirappalli.
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To
1.The Superintendent of Police,
Sivagangai District,
Sivagangai.
2.The Deputy Superintendent of Police,
Karaikudi Subdivision,
Sivagangai District.
3.The Deputy Superintendent of Police,
CBCID,
No.7, Kamarajar Nagar, 2nd Street,
Chinnachokkikulam,
Madurai.
4.The Inspector of Police,
All Women Police Station,
Karaikudi,
Sivagangai District.
5.The Special Court for Exclusive Trial of Cases
under POCSO Act,
Sivagangai.
6.The Special Court for Exclusive Trial of Cases
under POCSO Act,
Tiruchirappalli.
7.The Commissioner of Police,
Tiruchirappalli.
8.The Additional Public Prosecutor,
Madurai Bench of Madras High Court.
Madurai.
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M.NIRMAL KUMAR, J.
cse
PRE-DELIVERY ORDER IN
01.04.2025
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