Xxx Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2024)

Xxx Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2024)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

MONDAY, THE 10^TH DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 WP(CRL.) NO. 503 OF 2023

CRIME NO.193/2020 OF Mathilakom Police Station, Thrissur PETITIONER:

XXX

BY ADVS. C.P.UDAYABHANU NAVANEETH.N.NATH

RESPONDENTS:

1 STATE OF KERALA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME, STATE SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.

2 DIRECTOR GENERAL OF POLICE 3RD FLOOR, SOUTH SANDWICH BLOCK, SECRETARIATE, THIRUVANANTHAPURAM., PIN – 695010.

3 SUPERINTENDENT OF POLICE, THRISSUR, PIN – 680003.

4 STATION HOUSE OFFICER, MATHILAKAM POLICE STATION, THRISSUR, PIN – 680685.

5 AKSHAY, AGED 28 YEARS, S/O PRATHEEP KUMAR, MULLASSERY HOUSE, VEMBALLOOR, MATHILAKAM, THRISSUR, PIN – 680655.

R1 TO R4 BY SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR R5 BY T.C.SURESH MENON R5 BY B.DEEPAK

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THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL HEARING ON 06.06.2024, THE COURT ON 10.06.2024 DELIVERED THE FOLLOWING:

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P.G. AJITHKUMAR, J.

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W.P.(Crl) No.503 of 2023

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Dated this the 10^th day of June, 2024

JUDGMENT

In this Writ Petition filed under Article 226 of the Constitution of India, the petitioner, who is the de facto complainant in Crime No.193 of 2020 of Mathilakam Police Station, seeks a writ of mandamus directing respondent No.3 to consider Ext.P6 petition in a time bound manner.

Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for respondent No.5.

Crime No.193 of 2020 was registered alleging offences punishable under Sections 376 and 506 Part I of the Indian Penal Code, 1860 (IPC). A final report was submitted in the matter, wherein offences 323, 376 and 506 Part I of the IPC are alleged. The matter is now pending as S.C.No.690 of 2021 before the Fast Track Special Court (sic), Kodungallur.

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The petitioner complains that while she was below the age of 18 years, she was subjected to sexual exposures and therefore she submitted Ext.P4 complaint before the Deputy Superintendent of Police, Irinjalakuda to take appropriate prosecution proceedings. The action taken thereon was not as per law and therefore the petitioner submitted Ext.P6 representation before the 3rd respondent, Superintendent of Police. Although it was submitted as early as on 04.05.2023 no action is taken yet. Hence, a direction to take appropriate action on the said representation is sought.

The learned Public Prosecutor points out that at various points of time the petitioner took different stands and the 4^th respondent having had detailed investigation into the matter submitted the final report without incorporating offences under the Protection of children from Sexual Offences Act, 2012 (PoCSO Act). When the grievance now espoused by the petitioner was investigated into, no further action in that matter is required. It is also submitted that the attempt of the petitioner is to delay the proceedings in S.C.No.690 of 2021.

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Accordingly, the learned Public Prosecutor seeks to dismiss the writ petition.

The main grievance set forth in Ext.P6 is that the investigating officer did not reckon with the fact that the petitioner was subjected to penetrative sexual assault at the age of 17 years. It is submitted that if that is taken into account, the offences under the PoCSO Act also should be slapped against the 2^nd respondent. As per the material available on record, it is seen that the investigating officer had enquired into that aspect. Therefore, prima facie , the assertions in the final report cannot be said to be based on incorrect facts. However, when the petitioner submitted Ext.P6 petition, the 3^rd respondent is obliged to take a decision on it. A further investigation as requested can be had only if there is prima facie material to reach a different finding than that was arrived at in the final report. That, however, is a matter to be decided by the 3^rd respondent after verifying the final report and relevant records. Therefore, it is only apposite to direct the 3^rd respondent to consider and take a decision on Ext.P6.

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A decision in the matter has to be taken as expeditiously as possible since S.C.No.690 of 2021 is pending trial.

Accordingly, this writ petition is disposed of by directing the 3^rd respondent to consider and pass orders on Ext.P6 representation after verifying the final report and the relevant records as early as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment.

Sd/-

P.G. AJITHKUMAR, JUDGE

dkr

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APPENDIX OF WP CRL.503 OF 2023

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE FIR DATED 19.03.2020 IN CRIME NO.193/2020 OF MATHILAKAM POLICE STATION. EXHIBIT P2 COPY OF THE STATEMENT OF THIS PETITIONER DATED 19.03.2020. EXHIBIT P3 COPY OF THE FINAL REPORT TAKEN ON THE FILE OF THE ADDL.SESSIONS COURT, KODUNGALLUR AS SC 690/2021 EXHIBIT P4 COPY OF THE COMPLAINT DATED 13.03.2020 SUBMITTED BY THIS PETITIONER TO THE DY.SP IRINJALAKKUDA. EXHIBIT P5 COPY OF THE ATTACHED LETTER OF DY.SP IRINJALAKKUDA DATED 10.05.2023. EXHIBIT P6 COPY OF THE COMPLAINT DATED 04.05.2023 INITIATED BY THE PETITIONER BEFORE THE SUPERINTENDENT OF POLICE, THRISSUR.