Disposed

Don Biju Mathew v. Sub Inspector of Police

Kerala HC11 Sept 2020Crl.MC/63/2019

Case brief

AI extract

What is this about?

The court examined whether impugned proceedings against a petitioner, alleged to be a juvenile at the time of the offence, were illegal under the Juvenile Justice Act. It found the proceedings illegal and unenforceable but deemed a quashing order unnecessary as the charge sheet was already withdrawn. Directions were issued to provide copies of records before the Juvenile Justice Board.

What did the court decide?

Petitioner directed to receive copies of the final report records from the Juvenile Justice Board; further proceedings stayed for three months.

Don Biju Mathew Vs Sub Inspector of Police — Quashing and FIR | 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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FRIDAY, THE 11TH DAY OF SEPTEMBER 2020 / 20TH BHADRA, 1942

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CRL.MC.NO.63 OF 2019(G)

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SC 518/2018 OF SPECIAL COURT UNDER POCSO ACT, KOTTAYAM CRIME NO.481/2018 OF KURAVILANGADU POLICE STATION, KOTTAYAM

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PETITIONER/2ND ACCUSED:

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DON BIJU MATHEW, AGED 18 YEARS, S/O.BIJU MAHTEW, OPPAMTHADATHIL HOUSE, MARANGATTUPALLI P.O. - 686 635, MEENACHIL TALUK, ELAKKAD VILLAGE, KOTTAYAM DISTRICT.

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BY ADVS.

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SRI.JOHNSON MANAYANI SRI.JEEVAN MATHEW MANAYANI

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RESPONDENTS:

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1 SUB INSPECTOR OF POLICE KURAVILANGAD POLICE STATION, KURAVILANGAD P.O., KOTTAYAM DISTRICT - 686 633.

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2 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT COMPLEX, ERNAKULAM - 682 031.

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SRI.RAMESH CHAND, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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Crl.M.C. No. 63 of 2019

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Dated this the 11^th day of September, 2020

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O R D E R

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The prayer in the above Criminal Miscellaneous Case

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filed under Sec.482 of the Cr.P.C. is as follows:

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“....quash the final report in S.C. No.518/2018 of Addl. District & Session's Court-1 (POCSO) Kottayam and FIR No.481/2018 of Kuravilangadu Police Station – Exts P2 and P4, in the Crl M.C.”

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Heard Sri.Johnson Manayani, learned counsel appearing for the petitioner and Sri.Ramesh Chand, learned Public Prosecutor appearing for the respondents.

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The matter arises out of the impugned Anx.A2 FIR in Crime No.481/2018 of Kuravilangadu Police Station, which was registered on 12.4.2018 at 6.45 pm for offences punishable under Secs.342, 354, 354A, 354B r/w 34 of the IPC and Secs.7 & 8 of the POCSO Act.

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The matter arises out of the impugned Anx.A2 FIR in Crime No. 481/2018 of Kuravilangadu Police Station, which has been registered for the offences punishable under Secs.342, 354,

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Crl.M.C. No. 63/2019

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354A, 354B & 34 of the IPC and Secs. 7 & 8 of the POCSO Act, on 12.4.2018 at 6.45 pm. The case involves the alleged sexual assault on the minor victim girl then aged 14 years. Two accused have been arrayed in Anx.A2 FIR, 1^st accused has been named as Ashin and 2^nd accused has been described as a person who can be identified by sight who is unnamed and age is described as 16. It appears that much later the petitioner’s name has been arrayed as A-2 in the said crime. The police after investigation has filed the impugned Anx.A4 final report/charge sheet dated 31.10.2018 in which A-1 (abovesaid Ashin) and A-2 (the petitioner herein) have been alleged to have committed the offences punishable under Secs. 342, 354, 354A, 354B & 34 of the IPC and Secs. 7 & 8 of the POCSO Act. The case was later committed by the learned Magistrate and thereafter the case is numbered in the Sessions Court as S.C. No.518/2018 on the file of the Additional Sessions Court-I notified to deal with POCSO Cases, Kottayam.

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The petitioner has raised two fold contentions. The first

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contention is that the petitioner's date of birth as can be seen from

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Crl.M.C. No. 63/2019

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Anx.A1 SSLC and Anx.A1(a) statutory birth certificate issued by the Registrar of Births and Deaths is 16.2.2000 and therefore he was only aged 17 years 11 months and 7 days as on the alleged date of incident viz 23.12.2017 mentioned in the impugned Anx.A2 FIR and Anx.A4 final report/charge sheet. Therefore it is pointed out that even if the allegations are otherwise worthy of any investigation, it could not be investigated as against the petitioner as he was juvenile under law since he has not completed the majority age of 18 years as on the date of alleged incident. However the police officials have illegally conducted investigation in accordance with the regular provisions contained in the Code of Criminal Procedure and has submitted the final report which is illegal, null and void for the simple reason that it is mandated as per the provisions contained in the Juvenile Justice Act that such a case should have been dealt with only in accordance with mandatory provisions contained in the said Act and the investigation should have been conducted as against the petitioner accused only in the manner mandated in the Juvenile Justice Act

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Crl.M.C. No. 63/2019

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and final report should have been filed before the Juvenile Justice Board constituted as per the Juvenile Justice Act and not before the Magistrate Court as envisaged in the Code of Criminal Procedure. It is pointed out that the investigating officer has wrongly shown the age of the petitioner as 19/18 in column No.11 of Anx.A4 final report and as aged 19 in internal page 82 of Anx. A4 report as on the date of submission of final report dated 31.10.2018. The second major contention raised by the petitioner is on the merits of the case that he has been wrongly arrayed as an accused and that there are no materials to implicate the petitioner as an accused in the instant case, etc.

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It is submitted by the learned counsel appearing for the petitioner that going by the case set up by the investigating agency in Column No.7 of impugned Anx.A2 FIR accused No.2 has been described as a person who could be identified by sight, but who is not named and that he is aged 16 years. Inspite of that the investigating officer concerned has not taken any steps to correctly ascertain the date of birth of the petitioner (A-2) and if any

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Crl.M.C. No. 63/2019

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minimal effort would have been taken then it would have been revealed that the petitioner’s date of birth is 16.2.2000 going by Anx.A1 SSLC and Anx.A1(a) statutory birth certificate issued by the Registrar of Births and Deaths. It is only to create unnecessary confusion that it has been shown in Anx.A4 final report as if the petitioner’s age is 19 years as on the date of issuance of Anx.A4 final report dated 31.10.2018. It is also pointed out that the investigating officer has taken necessary steps to ascertain the date of birth of both the victim girl as well as A-1 and according to the investigating agency the victim is a minor and A-1 had completed the age of 18 years as on the date of incident. However no effort has been taken by the I.O. to ascertain the correct date of birth of the petitioner even though the age of unnamed A-2 is described as 16 years. Further that the above Criminal Miscellaneous Case has been filed before this Court on 4.1.2019. Thereafter it appears that the investigating officer has been convinced that the petitioner had not completed the majority age of 18 years as on the date of incident and had thereupon withdrawn Anx.A4 final report/

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Crl.M.C. No. 63/2019

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charge sheet to the extent it is directed against the petitioner and had filed a certified copy of Anx.A4 final report/charge sheet before the Juvenile Justice Board and this has been so done without apprising this Court though the case is pending before this Court since 4.1.2019, and copy of Crl.M.C. has been duly served on the Public Prosecutor on the same day. It is further pointed out that this Court had originally granted interim stay in this case as per order dated 7.1.2019 in Crl.M.A. No. 1/2019 in this Crl.M.C. and the said interim order has been extended from time to time. Further it is urged by the counsel for the petitioner that it is during the pendency of stay order granted by this Court in this Crl.M.C. that the investigating agency has withdrawn Anx.A4 final report/charge sheet to the extent it is directed against the petitioner and has refiled the certified copy of the same before the Juvenile Justice Board constituted as per the provisions contained in the Juvenile Justice Act along with a request for framing of charges, which itself would amount to great disobedience of the directions

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Crl.M.C. No. 63/2019

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issued by this Court. Later, when the petitioner came to know that the proceedings have been numbered and cognizance has been taken by the Juvenile Justice Board in the abovesaid refiled proceedings and summons has been issued to the petitioner in the said proceedings numbered as S.T. No.16/2019 on the file of the Juvenile Justice Board, Kottayam, the petitioner had approached this Court by filing Crl.M.A. No. 3/2019 and had sought quashing of said proceedings. This Court had passed order on 29.1.2020 in Crl.M.A. No. 3/2019 directing that further proceedings in S.T. No.16/2019 on the file of the Juvenile Justice Board, Kottayam, shall remain stayed. Later, it is further urged that the investigation so far conducted by the investigating agency by treating it as a regular case in terms of the Code of Criminal Procedure as if the petitioner is an adult accused as on the date of commission of offence is null and void and is illegal and ultra vires and cannot be sustained in the eye of law for a moment. Further that, deliberate efforts have been taken by the investigating officer to circumvent the stay order by withdrawing Anx.A4 final

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Crl.M.C. No. 63/2019

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report/charge sheet to the extent it is directed against the petitioner from the Sessions Court and refiling substantially the very same final report/charge sheet containing the very same investigation materials before the Juvenile Justice Board is also a nullity, inasmuch as the mandatory provisions contained in the Juvenile Justice Act for conduct of investigation as against juvenile conflictor of law by the special agency envisaged therein like the Juvenile Special Police and the other special mandatory provisions therein have been thrown to the winds,etc.

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To a specific query as to whether the investigating agency would admit as to whether the petitioner had completed the age of 18 years as on the alleged date of commission of offence, it is fairly submitted by the Public Prosecutor on the basis of instructions of the investigating agency that the records would show that the petitioner had not completed the age of 18 years as on the alleged date of incident. It is on this account that the investigating officer had withdrawn the proceedings to the extent it is directed as against the petitioner herein which was then pending

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Crl.M.C. No. 63/2019

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before the Sessions Court and then refiled the matter before the Juvenile Justice Board, etc. Since this is the admitted stand of the respondents, there is no necessity to quash the proceedings in relation to Anx.A4 final report/charge sheet which has led to the pendency of Sessions Case S.C. No. 518/2018 on the file of the Additional Sessions Court-I notified to deal with POCSO Cases, Kottayam, to the extent it is directed as against the petitioner herein (A-2) for the simple reason that the said proceedings is now no longer pending before the Sessions Court concerned due to the withdrawal of said proceedings. The fact that the proceedings have been so withdrawn from the Sessions Court is admitted by both sides.

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Taking note of the facts and circumstances of the case the following directions and orders are passed:

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(a) It is ordered and declared that the impugned proceedings which later led to the culmination of filing of impugned Anx.A4 final report/charge sheet which later led to the pendency of Sessions Case S.C. No. 518/2018 on the file of

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Crl.M.C. No. 63/2019

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the Additional Sessions Court-I notified to deal with POCSO Cases, Kottayam, to the extent it is directed against the petitioner herein (A-2 therein) is illegal, ultra vires and unenforceable for the simple reason that the petitioner has not completed the majority age of 18 years as on the date of alleged incident (23.12.2017) and this case should have been treated only in accordance with the provisions contained in the Juvenile Justice Act as he has to be treated as a juvenile in conflict with law in such a scenario. However there is no necessity to quash the abovesaid impugned criminal proceedings for the reasons that the respondents have already withdrawn the impugned final report/charge sheet.

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(b) The petitioner has not separately challenged the proceedings in S.T. No. 16/2019 now said to be pending before the Juvenile Justice Board, Kottayam, as he has not been served with a copy of records in relation to the final report said to have been filed before the Juvenile Justice Board to the extend it is directed against him. Hence it is ordered that the

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Crl.M.C. No. 63/2019

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Investigating Officer will immediately give attested copies of the entire records in relation to the final report said to have been filed against the petitioner before the Juvenile Justice Board, Kottayam, which has led to the initiation of Summary Trial proceedings S.T. No. 16/2019 on the file of the Juvenile Justice Board, Kottayam.

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(c) Attested copies of all such records shall be immediately given to the petitioner by the Investigating Officer concerned within one month from the date of receipt of a copy of this order. The Director General of Prosecution and the learned Public Prosecutor will ensure that strict instructions are given to the abovesaid Investigating Officer concerned to ensure that attested copies of all records in relation to the final report said to have been filed before the Juvenile Justice Board is immediately given to the petitioner/representative of the petitioner/counsel for the petitioner.

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Crl.M.C. No. 63/2019

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(d) The petitioner may enter appearance through his counsel before the Juvenile Justice Board, Kottayam, upon which the Juvenile Justice Board, Kottayam, will ensure that certified/authenticated copies of the entire records in relation to abovesaid impugned Summary Trial proceedings S.T. No. 16/2019 which has been initiated against the petitioner shall be given to him. Thereafter the petitioner will be at liberty to challenge the entire proceedings which has led to the pendency of S.T. No. 16/2019 before the Juvenile Justice Board, Kottayam, in accordance with law.

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(e) All contentions raised by the petitioner regarding the legality and correctness of the investigation are left open and it is for the petitioner to work out his remedies in the manner known to law in case he has any legally justiciable grievances in relation to the said impugned proceedings.

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(f) Further it is ordered that all further proceedings pursuant to

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Crl.M.C. No. 63/2019

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S.T. No. 16/2019 on the file of the Juvenile Justice Board, Kottayam, shall be kept in abeyance for a period of 3 months from the date of receipt of a copy of this order by the Juvenile Justice Board in order to enable the petitioner to work out his remedies in the manner know to law in relation to his grievances in S.T. No. 16/2019 on the file of the Juvenile Justice Board, Kottayam.

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Registry will forward a copy of this order to the Juvenile Justice Board, Kottayam, who is dealing with S.T. No. 16/2019.

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With these observations and directions the above

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Criminal Miscellaneous Case will stand disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

MMG

Crl.M.C. No. 63/2019

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APPENDIX

PETITIONER'S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF THE PETITIONER'S SSLC BOOK, PAGE-2.

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ANNEXURE A1(A) TRUE COPY OF THE BIRTH CERTIFICATE OF THE PETITIONER ISSUED BY THE ETTUMANOOR GRAMA PANCHAYATH, DT.23/05/2006.

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ANNEXURE A2 CERTIFIED COPY OF THE FIR OF THE 1ST RESPONDENT'S POLICE STATION.

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ANNEXURE A3 TRUE COPY OF THE PETITIONER'S STUDENT IDENTITY CARD ISSUED B THE ST.XAVIER'S COLLEGE (AUTONOMOUS), AHMEDABAD, DT.17/10/2018.

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ANNEXURE A4 CERTIFIED COPY OF THE FINAL REPORT AND THE RECORDS THEREIN IN S.C.NO.518/2018 OF ADDL. DISTRICT AND SESSION'S COURTI (POCSO), KOTTAYAM.

Don Biju Mathew v. Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

Don Biju Mathew v. Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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