Remanded

Vipinkumar v. Vs State of Kerala

Kerala HC24 Sept 2020Crl.MC/2855/2020

Case brief

AI extract

What is this about?

Kerala HC scrutinized POCSO case investigation. Court quashed initial proceedings, directed District Police Chief to entrust further investigation to superior officer, and set a strict timeline for complete inquiry.

What did the court decide?

Further investigation entrusted to D.S.P./ACP level officer within 10 days; proceedings deferred pending report.

What the court decided

Vipinkumar v. Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942

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Crl.MC.No.2855 OF 2020(F)

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AGAINST THE ORDER/JUDGMENT IN SC 1034/2019 OF SPECIAL COURT UNDER POCSO ACT, KANNUR

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CRIME NO.579/2019 OF Kuthuparamba Police Station, Kannur

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PETITIONER/ACCUSED:

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VIPINKUMAR V.

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AGED 31 YEARS, S/O VIKRAMAN NAIR, KATTAKKALIL HOUSE, PARIYARAM, VENGODE P.O., NEDUMANGAD TALUK, THIRUVANANTHAPURAM PIN-695028

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BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SMT.ANUROOPA JAYADEVAN SHRI.ASHRUTH NASER

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RESPONDENTS/STATE & DEFACTO COMPLAINANT:

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682031

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2 XXX-VICTIM XXX

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3 SHYMA A T W/O PURUSHOTHAMAN,RESIDING AT ASHNALAYAM,KOOTHUPARAMBA PO,KANNUR,670643

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R3 BY ADV. SRI.D.ARUN BOSE R3 BY ADV. SRI.AKHIL S.VISHNU SRI.B.JAYA SURYA, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.No.2855 OF 2020

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ALEXANDER THOMAS, J.

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=======================

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Crl.M.C.No. 2855 of 2020

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=======================

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Dated this the 24^th day of September, 2020

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O R D E R

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The prayer in the above Crl.M.C filed under Section 482

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of the Cr.P.C is as follows:

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“to quash all proceedings in S.C.No.1034/2019 at the Court of Special Judge for trial of offences under POCSO Act (Addl. District Court-I, Thalassery) on basis of Annexure-2 final report and arising out of Annexure-1 FIR in Crime No.579/2019 of the Koothumparamba Police Station and to exonerate the petitioners of all allegations leveled against them.”

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Heard Sri.K.Gopalakrishna Kurupu, the learned senior

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counsel instructed by Sri.Ashsruth Naser, the learned counsel appearing for the petitioner (sole accused), Sri. B.Jayasurya, learned Public Prosecutor appearing for R1 State of Kerala and Shri.Arun Bose, the learned counsel appearing for contesting respondents 2 and 3 (minor victim boy and his mother) .

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The petitioner herein has been arrayed as the sole accused in the impugned Annexure-1 FIR in Crime No. 579/2019 of Koothuparamba Police Station for offences punishable under Section 377 of the IPC, Sections 7, 8, 9 (l) & 10 of the Protection of Children from Sexual Offences Act etc., on the basis of the

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statement given by the 2^nd respondent-minor victim boy aged 13 years on 01.08.2019 before the Child line Authorities in respect of the alleged incident which happened on 14.04.2019. Police after investigation has filed the impugned Annexure-2 Final Report/Charge Sheet dated 24.10.2019 in above said Annexure-A1 in Crime No. 579/2019 of Koothuparamba Police Station, for offences punishable under 377 of the IPC, Sections 4 r/w 3(c), 6 r/w 5(c), 6 r/w 5(l), 12 r/w 11(vi), 8 r/w 7, 10 r/w 9(l) of the POCSO Act, which has now led to the pendency of Session Case S.C.No.1034/2019 on the file of the 1^st Additional Sessions Court, notified to deal with POCSO cases, Thalassery.

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The petitioner, then a contract employee of a project under the Koothuparamba Municipality, was residing in a residential accommodation offered by the said Municipality which is in the immediate vicinity of the residence of the minor victim boy. From the prosecution case it is discernible that complaints were given by other students in which the minor victim boy was studying that, he used to call other male students to the bathroom in the school building presumably with homosexual inclinations and that the minor victim boy was subjected to counselling by the

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counsellor of the school in which he was studying. Further according to the prosecution during the said process of counselling the minor victim boy had revealed to the counsellor that he was sexually assaulted by anal penetration committed by the petitioner on a day prior to the Vishu day (15.04.2019) which is on 14.04.2019, and on the next day thereafter similar complaints were also made by the minor victim boy against another person, who is his relative residing in the same locality. Separate crimes involving the petitioner as well as the other person have been registered by the police. It is in the light of these aspects that Annexure-1 FIR in Crime No.579/2019 of Koothuparamba Police Station has been registered on 01.08.2019 against the petitioner in respect of the alleged incident which happened on 14.04.2019 and 15.04.2019.

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The petitioner would strongly assert that, he is a victim of false accusations made at the behest of the minor victim boy. The minor victim boy is a hyper active boy, and he used to frequently come and disturb the peaceful residence of the petitioner by locking his door from outside and by deflating the filled air from the tyre of the petitioner's motorcycle and that the petitioner was constrained to respond to the same by scolding the

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minor victim boy, and had even to scare him away by saying that he may be punished and the petitioner has frequently complained in that regard to the parents of the minor victim boy, and it is out of this animosity that the minor victim boy has falsely framed the petitioner in the instant case.

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Further that Annexure-3 is the attendance register retained by the Kothuparamaba Municipality for the month of March to May 2019, which would clearly show that the petitioner was on leave from the said Municipality for the period from 13.04.2019 to 28.04.2019. On account of the said leave, the petitioner had proceeded from Koothuparamba to Thiruvananthapuram, where his parental home is situated on 12.04.2019. Annexure-4 is a letter dated 03.10.2019 issued by the Senior Divisional Commercial Manager of Southern Railway, Thiruvananthapuram, which would show that the petitioner has traveled by Malabar Express on 12.04.2019, on the tickets where

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the PNR number mentioned therein, to proceed to Thiruvananthapuram. Further that Annexure-5 is a letter dated 19.10.2019 issued by the Senior Commercial Manager, Divisional Railway Managers Office, Palakkad, which would show that the

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petitioner had returned back from Thiruvananthapuram to Koothuparamba on 28.04.2019 using the ticket in his name having the PNR Number mentioned therein.

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Further the petitioner would point out that Annexure-6 are the bank statement in respect of the ATM (Automated Teller Machine) SB account of the petitioner maintained in with the Punjab National Bank, Koothuparamba, and the entires therein from 13.04.2019 to 28.04.2019 would show that the petitioner has withdrawn amounts from his above said SB account using his ATM card while at Thiruvananthapuram and nearby locations on all these days. Whereas Anneuxre-6 in respect of the periods the period immediately prior to 13.04.2019 and immediately after 28.04.2019 would show that the petitioner has been using the said ATM card to withdraw money from his SB account while located at Koothuparamba and nearby places.

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Further the petitioner would place reliance on Annexure-7 letter dated 24.09.2019 issued by the Deputy General Manager of Administration of the Bharat Sanchar Nigam limited, Thiruvananthapuram, which would show that from Serial No.1814 upto 2218 thereof pertain to the mobile calls made by the

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petitioner from his BSNL mobile cell for the period from 12.04.2019 to 28.04.2019, which would show that the petitioner has made phone calls from his mobile cell from stations after Koothuparamba and Thiruvananthapuram, for the relevant days. Whereas, entires in Annexure-8 for the period prior to 12.04.2019 and after 28.04.2019 would show that the petitioner had made mobile calls from the said mobile cell of BSNL while he was at Koothuparama or nearby locations.

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Annexure-9 is the letter dated 15.02.2020 issued by the M/sVodafone Idea Limited, which would show that the said company is not willing to furnish the call details made from the petitioner's mobile number subscribed from the said company, as such request is not acceded to as per the said company's policy, unless the same is called for by lawful authorities like the Police for criminal investigation.

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On the basis of Annexures-3 to 8, the petitioner would strongly contend and assert that he had in fact left Koothuparamba by the evening of 12.04.2019 and then after a train journey he had reached Thiruvananthapuram, in his parental home at Thiruvananthapuram and was there till 28.04.2019 on which day

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he was proceeded to Koothuparamba.

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The petitioner was arrested and remanded in relation to his involvement in the above said crime on 01.08.2019 and thereafter he was released on regular bail only on 30.08.2019. Annexure-10 is a letter dated 27.08.2019 issued by the Superintendent of the Special Sub Jail, Kannur, where the petitioner was earlier under remand.

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It is stated in Annexure-10 letter dated 27.08.2020 that during his remand in the said Sub Jail, R3 herein (mother of the victim boy) as well as the Victim boy's sister and another person has personally visited the petitioner in the Special Sub Jail, Kannur, on 17.08.2019.

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Annexure-A11 is the affidavit dated 06.03.2020 sworn to by the victim boy's father, and Annexure-A12 is the affidavit sworn to by the victim boy's mother (R3 herein) on 06.03.2019. In Annexures-11 and 12 the parents of the victim boy has stated that they came to know about the allegation made by the minor victim boy regarding the alleged sexual incidence for the first time only when the boy had made the statement pursuant to the child line intervention and in the presence of the said parents, and prior to

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that the minor victim boy has never made any complaints against the petitioner. Further that the minor victim boy used to be quite hyper active and he used to constantly harass the petitioner by locking his door from out side and deflating his motorcycle tyre, and frequent complaints were made by the petitioner to the parents about the said bad conduct of the minor victim boy. That after registering the FIR, the minor victim boy has confided to his parents that it is only to retaliate against the petitioner for having complained against the minor victim boy to his parents regarding him above said conduct that he has made the above said allegations against the petitioner which resulted in registering of the above said crime. Further both the parents have asserted in their sworn affidavits as per Annexured-11 and 12 that they have strong reasons to believe that the petitioner has been falsely implicated in this case on the basis of the false accusation made by the minor victim boy in view of the above said aspects.

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The learned senior counsel appearing for the petitioner would thus strongly contend that the above said materials are unimpeachable and of sterling quality, and has not been denied by the Police, and this would mainly show that the petitioner has been

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falsely framed in the instant case on basis of the above said false accusation made by the minor victim boy.

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Both sides have been heard in detail. The learned

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counsel appearing for R2 and R3 has also made submissions on the basis of Annexures-11 and 12, and has also indicated that the above said parties have no objections in this Court quashment of the impugned criminal proceedings against the petitioner for the reasons stated in the said affidavits. On being querried as to whether the police has made any effort to investigate and ascertain the truth or otherwise the factual details flowing out from Annexures-3 to 8, as well as Annexures-10 to 12 etc, it appears that the investigating agency has not examined any of these crucial aspects pointed out by the petitioner. On the other hand it appears that without ascertaining these crucial factual aspects, the investigating agency has proceeded to file the impugned Annexure-2 - Final Report/Charge Sheet on 24.10.2019, against the petitioner for the above said offences in question, which has now led to the pendency of S.C.No.1034/2019 on the file of the 1^st Additional Sessions Court, notified to deal with POCSO cases, Thalassery, Kannur District. It is also pointed out on behalf of the

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petitioner that another person who was then residing in the room adjacent to the petitioner's room were he was residing in the relevant time has also been questioned by the Police and has given statement under Section 161 of Cr.P.C., and no where has he stated therein that the minor victim boy was seen in the company of the petitioner in his room on 14.04.2019 or on 15.04.2019 etc. All what has been stated in above said 161 Cr.P.C. statement given to the Police is that the minor victim boy used to frequently harass both the petitioner as well as the said person, and that he used to consciously avoid the minor victim boy on account of his errant behaviour, and that he has no knowledge about any sexual harassment or assault said to have been committed by the petitioner on the minor victim boy etc.

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After having heard both sides in detail, this Court is of considered view, that it is indeed the solemn statutory obligation and responsibility of the investigating agency to ascertain the correctness or otherwise the above said aspects of flowing out from Annexures-3 to 8, Annexures-10 to 12 etc. It is well settled legal position that the statutory obligation and the duty of the Police is not merely to charge sheet a person who has been arrayed as an

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accused in the FIR, at any cost. On the other hand, Courts have held repeatedly that it is indeed solemn statutory responsibility and duty of the Police to ferret out the unvarnished truth of the matter.

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If the factual aspects canvased by the petitioner are true, then the case reveals very disturbing state of affairs in our investigating system. There is so, as the Police has not made any efforts whatsoever to investigate and find out the truth of the matter arising out of the above said materials relied on by the petitioner, Prima facie, this Court is inclined to take a view, that the above said materials cannot be brushed aside by the investigating agency as it is seen issued by the statutory authorities like the Koothuparamba Municipality, Southern Railway Authorities, BSNL, Punjab National Bank, Superintendent of Special Jail etc. As of now there are no materials which would even remotely discredit those materials. So at this stage it has to be stated that there is str on g Prima facie force i n the submission made by the learned senior counsel for the petitioner/accused that these are materials of unimpeachable and of sterling quality. The matters require thorough investigation and to assess the aspects that flow out of these materials. But it is indeed the duty of the

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investigating agency to ascertain those aspects and when Prima facie such materials appear to have strong credibility as they are issued by Government authorities, it is all the more obligation of the Police to undertake meticulous investigation of ascertain the truth. Moreover, in cases like this, it may not be right and proper for this Court to consider the prayer for quashment by placing reliance on those materials, especially as the same has not been subjected to effective and efficacious police investigation.

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Accordingly, this Court is inclined to take the view that the omission on the part of the investigating agency to investigate in to these crucial aspects is not a right and proper approach on the part of a responsible investigating agency. Accordingly, it is ordered that the District Police Chief, Kannur, will immediately ensure that further investigation in the above said case is entrusted to the superior officer not below the rank of Deputy Superintendent of Police/Assistant Commissioner of Police, and the said further investigation shall be monitored by the District Police Chief or by any other superior officer in an effective and proper manner. The orders shall be passed by the District Police Chief, Kannur to ensure the entrustment of the further investigation in the above

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said case to an officer not below the rank of Deputy Superintendent of Police/Assistant Commissioner of Police, within ten days from the date of receipt of a copy of this order, and the investigating officer will immediately commence the further investigation without any further delay. The materials like Annexures-3 to 8 and Anenxures-10 to 12 and the aspects flowing out from those materials should be meticulously and effectively investigated by the new Investigating Officer in the course of said further investigation. Further investigation in this case may be duly completed in an efficacious and efficient manner without much delay, preferably within a period of 4 months from the date of entrustment of further investigation to the said officer. Therefore, the said Investigating Officer should file a supplemental final report in the matter before the Special Court concerned. Thereafter in case the petitioner has any legally justiciable grievances thereto, he will at liberty to work out his remedies in the manner known to law. Until the above said process of further investigation and filing of the supplementary final report is completed, further proceedings in S.C.No.1034/2019 on the file of 1^st Additional Sessions Court, notified to deal with POCSO cases, Thalassery, Kannur District, will

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stand deferred.

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The Registry of this Court will forward a certified copy of this order 1^st Additional Sessions Court, notified to deal with POCSO cases, Thalassery, Kannur District, dealing with S.C.No.1034/2019 for necessary information and further action. The petitioner as well as the Secretary to the Office of the Advocate General will produce certified copy of this order before the Investigating Officer concerned as well as the District Police Chief, Kannur, for necessary information and further action. Before parting with this case , this Court would call upon the new Investigating Officer to ensure the further investigation is done in a highly efficient and honest manner so as to ensure that the truth of the matter is disclosed.

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With these observations and directions, the above Criminal Miscellaneous case will stand finally disposed of.

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Sd/ALEXANDER THOMAS JUDGE

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VPK

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE 1 CERTIFIED COPY OF THE FIR IN CRIME NO.579/2019 OF KOOTHUPARAMBA POLICE STATION ALONG WITH THE LETTER OF TEH CHILD LINE AND THE STATEMENT OF THE COMPLAINANT(SEALED COVER) ANNEXURE 2 TRUE COPY OF THE FINAL REPORT DATED 24.10.2019 IN CRIME NO.579/2019 OF THE KOOTHUPARAMBA POLICE STATION (SEALED COVER) ANNEXURE 3 TRUE COPY OF THE REGISTER OF ATTENDANCE OF THE KOOTHUPARAMBA MUNICIPALITY FOR THE MONTH OF MARCH 2019, APRIL 2019 AND MAY 2019 OBTAINED UNDER THE RIGHT TO INFORMATION ACT ANNEXURE 4 TRUE COPY OF THE LETTER DATED 03.10.2019 ISSUED BY THE SENIOR DIVISIONAL COMMERCIAL MANAGER, SOUTHERN RAILWAY, THIRUVANANTHAPURAM ANNEXURE 5 TRUE COPY OF THE LETTER DATED 19.10.2019 ISSUED BY THE SENIOR COMMERCIAL MANAGER, DIVISIONAL RAILWAY MANAGER'S OFFICE, COMMERCIAL BRANCH, PALAKKAD ANNEXURE 6 TRUE COPY OF THE BANK STATEMENT FOR ACCOUNT NO.4606000400074976 MAINTAINED BY THE PETITIONER WITH THE PUNJAB NATIONAL BANK, KOOTHUPARAMBA

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ANNEXURE 7 TRUE COPY OF THE LETTER DATED 24.09.2019 OF THE DEPUTY GENERAL MANAGER (ADM) OF THE OFFICE OF THE PRINCIPAL GENERAL MANAGER, BSNL, TRIVANDRUM ADDRESSED TO THE PETITIONER

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ANNEXURE 8 TRUE COY OF THE CALL DETAILS FOR THE PERIOD FROM 01.12.2019 TO 07.08.2019 IN RESPECT OF THE PETITIONER'S MOBILE

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	NO.9497883785
ANNEXURE 9	TRUE COPY OF	THE	LETTER	DATED
	15.02.2020 ADDRE BY THE AUTHORIZ IDEA LTD.	SSED TO ED SIGNA	THE PETI TORY, VO	TIONER DAFONE
ANNEXURE 10	TRUE COPY OF TH	E COMMU	NICATION	DATED
	27.08.2019 ISSU	ED TO	NISHAD	M.S.,
	ADVOCATE THA	LASSERY	BY	THE
	SUPERINTENDED,	SPECIAL	SUB	JAIL,
	KANNUR UNDER THE	RIGHT T	O INFORMA	TION
ANNEXURE 11	AFFIDAVIT DATED	06.03.	2020 SWO	RN BY
	PURUSHOTHAMAN,	S/O	GOPALAN	OF
	ASHNALYAM, KO COVER)	OTHUPARA	MBA, (	SEALED
ANNEXURE 12	AFFIDAVIT DATED	06.03.20	20 SWORN	TO BY
	SHYMA K.P., ASH	NALAYAM,	KOOTHUP	ARAMBA
	P.O., (SEALED CO	VERE)

Vipinkumar v. Vs State of Kerala

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Vipinkumar v. Vs State of Kerala

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