Dismissed

Jayakrishnan.M. v. State

Kerala HC13 Oct 2023Crl.MC/2538/2023

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a Criminal Misc. Caption challenging the dismissal of an application for discharge. The petitioner, accused of sending pornographic material via marriage proposal under IPC 354A and Kerala Police Act 120(O), argued insufficiency of evidence without an FSL report linking the phone sends to him. The Court allowed proceedings to continue based on prima facie materia

What did the court decide?

The application for discharge was dismissed; proceedings to continue pending FSL report; exemption from personal appearance may be sought.

Jayakrishnan.M. Vs State — Cheating and Forgery | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE GOPINATH P.

¶4

FRIDAY, THE 13TH DAY OF OCTOBER 2023 / 21ST ASWINA, 1945

¶5

CRL.MC NO. 2538 OF 2023

¶6

AGAINST THE ORDER IN C.M.P.NO.4036 OF 2022 DATED 28.11.2022 IN CC
833/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ERNAKULAM

¶7

PETITIONER/ACCUSED:

¶8

JAYAKRISHNAN.M. AGED 56 YEARS S/O.HARIDAS, PATHATHU
KALAM VEEDU, PALLIKURUPPU POST, KARAKURUSSI,
MANNARKAD, PALAKKAD., PIN - 631501
BY ADVS. VINOD VALLIKAPPAN S.SUMITHA

¶9

RESPONDENT/STATE AND COMPLAINANT:

¶10

STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM., PIN - 682031

¶11

SRI. NAUSHAD K.A. (SR.PP)

¶12

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶13

Crl.M.C.No.2538 OF 2023

¶14

¶15

ORDER

¶16

This Crl.M.C. has been filed challenging

¶17

Annexure A4 order by which the application filed by the petitioner for discharge on the ground of insufficient evidence was dismissed by the learned Judicial First Class Magistrate Court-II, Ernakulam. The petitioner is the accused in Crime No.2423 of 2018 of the Central Police Station, Ernakulam, alleging commission of offences under Section 354A(1)(iii) of the Indian Penal Code and Section 120(O) of the Kerala Police Act. The allegation against the petitioner is that after a marriage proposal with the complainant, the petitioner had sent certain pornographic material to the complainant from his phone and thereby the petitioner committed the offences alleged against him.

¶18

¶19

Crl.M.C.No.2538 OF 2023

¶20

Learned counsel appearing for the

¶21

petitioner would submit that the entire proceedings are based on certain material copied to a Compact Disc (CD) from the mobile phone of the complainant by an unauthorized person. It is submitted that the mobile phone of the petitioner, surrendered to the Investigating Officer, has been sent for FSL examination and unless there are materials to suggest that the material was actually sent by the petitioner from his phone to the phone of the complainant, the proceedings cannot be continued against the petitioner. It is submitted that the act of the Magistrate in refusing discharge of the petitioner for lack of evidence and in taking cognizance of the complaint is unsustainable in law. It is submitted that unless and until the FSL report is received and that report shows that the pornographic material in question has been sent by the petitioner to the complainant, the proceedings cannot be permitted to

¶22

¶23

Crl.M.C.No.2538 OF 2023

¶24

go on.

¶25

The learned Public Prosecutor refers to

¶26

Annexure A4 order. It is submitted that reading of Annexure A4 order will suggest that the learned Magistrate has not committed any irregularity, whatsoever, in dismissing the application for discharge. It is submitted that the learned Magistrate has held that prima facie there are materials to proceed against the petitioner and it has also been noticed that as and when the FSL report is received, the same will show as to whether the pornographic material in question had actually been forwarded by the petitioner from his mobile phone to the mobile phone of the complainant. It is submitted that the contention of the learned counsel for the petitioner that dismissal of the discharge petition and taking of cognizance is illegal [on account of the fact that at present there is no material to suggest that the petitioner had committed the offences] cannot be

¶27

¶28

Crl.M.C.No.2538 OF 2023

¶29

accepted and the Magistrate was right in proceeding on the basis of the version of the complainant and prima facie material being produced to show that the petitioner had committed the offences alleged against him. However, it is conceded that before the framing of charge, the learned Magistrate will have to consider the FSL report.

¶30

Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am of the opinion that the petitioner has not made out any case for interference with Annexure A4 order. The learned Magistrate has held that there is sufficient material before the Court to take a view that cognizance has to be taken of the offences alleged against the petitioner. The learned Magistrate has rightly held that the question as to whether the petitioner had actually sent the pornographic material to the complainant can be ascertained after the FSL report is received. Therefore, I find no reason to

¶31

Crl.M.C.No.2538 OF 2023

¶32

¶33

interfere with Annexure A4 order. However, it is made clear that before charges are framed, the learned Magistrate shall have due regard to the contents of the FSL report. It will also be open to the petitioner to seek exemption from personal appearance under Section 205 of the Cr.P.C.

¶34

Crl.M.C. is disposed of as above.

¶35

Sd/GOPINATH P. JUDGE

¶36

SSK/13/10

¶37

Crl.M.C.No.2538 OF 2023

¶38

¶39

APPENDIX OF CRL.MC 2538/2023

¶40

PETITIONER ANNEXURES

¶41

Annexure-A1CERTIFIED COPY OF THE FINAL REPORT IN
FIR.NO.2423/2018 OF CENTRAL POLICE STATION IN THE
COURT OF JFCM-II, ERNAKULAM.
Annexure-A2A TRUE COPY OF THE PETITION FILED TO DROP THE
CHARGES AGAINST THE PETITIONER IN C.C.NO.833/2020
Annexure-A3A TRUE COPY OF THE OBJECTION FILED BY THE ASSISTANT
PUBLIC PROSECUTOR IN CMP.NO.4036/2022 DATED
26.10.2022.
Annexure-A4A CERTIFIED COPY OF THE ORDER DATED 28.11.2022 IN
C.M.P.NO.4036/2022 IN C.C.NO.833/2020 BY THE COURT
OF JUDICIAL FIRST CLASS MAGISTRATE-II, ERNAKULAM.
TRUE COPY

¶42

P.A. TO JUDGE

Jayakrishnan.M. v. State

Case brief

What is this about?

What did the court decide?

Jayakrishnan.M. v. State

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

Coram

Case details

Similar cases

Shon P Kurian Vs State of Kerala

Xxx Vs State of Kerala

Risad Vs State of Kerala, Represented by Public Prosecutor

Nishad Vs State of Kerala

Renuka Vs Sukanya.C.K

Satheesh Sathyan Vs Renuka