This court refused to quash the FIR in a POCSO and rape case initiated by a missing person report. It directed a comprehensive investigation by a superior officer and deferred coercive steps pending a fresh anticipatory bail application.
Further investigation entrusted to a superior officer; coercive steps deferred for six weeks pending antecedent bail application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942
Crl.MC.No.2831 OF 2020(D)
CRIME NO.507/2015 OF Valiyamala Police Station , Thiruvananthapuram
PETITIONER:
AKHIL AGED 27 YEARS S/O. CHITHARANJAN NAIR, RESIDING AT AKHIL NIVAS, PULLIKONM, PANAKODE P.O., THOLICODE, THIRUVANANTHAPURAM DISTRICT,PIN -695 031
BY ADV. SRI.J.R.PREM NAVAZ
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA , ERNAKULAM, PIN-682 031
3 VICTIM X
BY ADVS.
SRI.B.JAYASURYA, PUBLIC PROSECUTOR, SRI.AJOY VENU
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C. No. 2831 of 2020
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ALEXANDER THOMAS, J.
Crl.M.C. No. 2831 of 2020
Dated this the 24th day of September, 2020
O R D E R
The prayer in the above Crl.M.C filed under Sec.482 of the Cr.PC is as follows.
“.........to quash the FIR in Crime No.507/2015 of Valiyamala Poluce Station, Thiruvananthapuram District registered for the offences punishable under Sec.376 of the Indian Penal Code and under Sec.3 and 4 of the Protection of Children from Sexual Offences Act, 2012 and all further proceedings pursuant to it, as against the petitioner/accused, in order to secure the ends of justice.”
petitioner, Sri.B.Jayasurya, learned Public Prosecutor appearing for R1 & R4 and Sri.Ajoy Venu, learned Advocate appearing for contesting respondent Nos.2 & 3.
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respondent (mother of the alleged victim) stating that her minor daughter (3rd respondent) is missing. The police after investigation has subsequently arrayed the petitioner as a sole accused for offences punishable under Secs.376 of the IPC read with Secs. 3 & 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, in said crime as per Anx.A-3 additional report.
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in May 2015. At this point of time, petitioner would assert that he was never in India. Further that respondent No.2 (minor victim's mother) & respondent No.3 (minor victim) has now sworn to Anxs.A5 & A6 affidavits dated 10-12-2019 stating that the impugned criminal proceedings have arisen due to mistake of fact and that they are not interested to proceed further with Anx.A1 final proceedings against the petitioner/accused and that they have no complaint against the petitioner/accused. The petitioner would contend that the continuation of the impugned criminal proceedings pursuant to Anx.A1 would amount to abuse of the process, etc.
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State of Gujarat [2017 (9) SCC 641], Anita Maria Dias v. State of Maharashtra, [2018 (3) SCC 290], Sebastian @ Solly v. State of Kerala [2015 (1) KLJ 384] etc]. In these cases of this nature it is solemn statutory responsibility and obligation of the Investigating Agency to have comprehensive and exhaustive investigation of the all aspects of the case in order to ascertain whether the allegations raised against the accused persons are correct or false etc. Indeed, it is by now well established by series of judicial rulings that it is the solemn duty of the investigating agency to ferret out the unvarnished truth of the matter. Therefore it goes without saying that the approach of the police authorities and the Investigating Agency should not be merely to charge sheet the accused person arrayed in the FIR at any cost. Therefore it is for the Investigating Agency to fulfil its onerous statutory obligation, ascertain the truth of the matter after exhaustive and comprehensive investigation into all aspects of the matter.
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Station, Thiruvananthapuram is entrusted to a superior officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police, who will conduct an exhaustive and comprehensive investigation into all aspects of the matter and should also take all sincere and honest efforts to ascertain the correctness of the case of the petitioner that he was not in India at the time of the alleged incidents in relation to the abovesaid crime as referred to herein above. Further Investigation in this case may be duly completed without much delay preferably within a period of six months, at any rate, within the outer time limit of eight months from the date of handing over of the further investigation of the trial to the new officer.
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remedies in the manner known to law. It is only for the purpose of enabling the petitioner to move the Anticipatory Bail application it is ordered in the interest of justice that further coercive steps including the proposed arrest of the petitioner in relation to the abovesaid crime No.507/2015 of Valiyamala Police Station, Thiruvananthapuram may be deferred by the Investigating Agency concerned for a period of six weeks or until orders are passed by the competent court in the Bail Application that may be filed by the petitioner, which ever is earlier.
With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of.
Sd/ALEXANDER THOMAS, JUDGE
KAS
Crl.M.C. No. 2831 of 2020
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APPENDIX
PETITIONER'S/S EXHIBITS:
| ANNEXURE-A1 | TRUE COPY OF THE FIRST INFORMATION STATEMENT IN CRIME NO.507 OF 2015 REGISTERED BY THE VALIYAMALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT |
|---|---|
| ANNEXURE-A2 | THE TRUE COPY OF THE REPORT DATED 08.09.2015 GIVEN BY THE STATION HOUSE OFFICER VALIYAMALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, NEDUMANGAD |
| ANNEXURE-A3 | THE TRUE COPY OF THE ADDITIONAL REPORT GIVEN BY THE STATION HOUSE OFFICER VALIYAMALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT DATED 10.092015 |
| ANNEXURE-A4 | TRUE COPY OF THE 12TH PAGE OF THE PETITIONER'S INDIAN PASSPORT BEARING PASSPORT NO.K3403289 |
| ANNEXURE-A5 | THE NOTARIZED AFFIDAVIT DATED 10.12.2019 OF THE 2ND RESPONDENT |
| ANNEXURE-A6 | THE NOTARIZED AFFIDAVIT DATED |
| 10.12.2019 OF THE 3RD RESPONDENT |
RESPONDENT'S/S EXHIBITS: NIL
3 issues framed by the court
Whether the FIR in a POCSO and rape case can be quashed solely on the ground of alleged mistake of fact and affidavits by the victim.
Whether the impugned FIR and proceedings should be quashed in view of the accused being abroad at the time of the alleged incident.
Whether the investigation in the suspended crime needs to be reassigned to a superior officer for comprehensive inquiry.
Colour shows how this judgement treated each authority
Shimbhu v. State of HaryanaRelied on¶38
Shimbhu v. State of Haryana [2014 (13) SCC 318] · Who else cites this
Parbatbhai Aahir v. State of GujaratRelied on¶38
Parbatbhai Aahir v. State of Gujarat [2017 (9) SCC 641] · Who else cites this
Anita Maria Dias v. State of MaharashtraRelied on¶38
Anita Maria Dias v. State of Maharashtra, [2018 (3) SCC 290] · Who else cites this
Sebastian @ Solly v. State of KeralaRelied on¶38
Sebastian @ Solly v. State of Kerala [2015 (1) KLJ 384]
3 provisions across 3 enactments
Akhil
State of Kerala
Mother of Victim X
Victim X
Station House Officer
Alexander Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Alexander Thomas
Parties & counsel
