Kerala High Court
Renjitha Markose vs State Of Kerala on 4 April, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 23RD DAY OF OCTOBER 2013/1ST KARTHIKA, 1935
Crl.MC.No. 4422 of 2013
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AGAINST THE ORDER IN Crl.Rev.Pet.No.3921/2006 DATED 04-04-2007
...
AGAINST THE ORDER IN CRRP.NO.3/2013 OF SESSIONS COURT,
THODUPUZHA DATED 29-06-2013
...
AGAINST THE ORDER IN SC NO.413/2006 OF ADDL.SESSIONS
COURT/SPECIAL COURT (NDPS ACT CASES), THODUPUZHA
DATED 25-10-2006
....
AGAINST THE ORDER IN CRL.MP.NO. 1134/2013 OF JUDICIAL FIRST
CLASS MAGISTRATE COURT II, PEERUMEDU DATED 02-03-2013
....
PETITIONER(S)/COMPLAINANT:
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RENJITHA MARKOSE, AGED 33 YEARS,
D/O.MANI MARKOSE, 'LOVEDALE', THURUTHY,
CHANGANACHERRY, KOTTAYAM DISTRICT.
BY SRI.M.R.RAJENDRAN NAIR,SENIOR ADVOCATE
ADVS.SMT.ANILA GEORGE
SMT.K.V.BHADRA KUMARI
RESPONDENTS/ACCUSED AND STATE OF KERALA:
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1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, KOCHI - PIN 682 031.
2. DHARMARAJAN, POOJAPURA CENTRAL JAIL,
POOJAPURA, THIRUVANANTHAPURAM - PIN 695 012.
3. P.K.JAMAL, S/O.KASIM KHAN, RAWTHER, PUTHUPARAMBIL HOUSE,
EDATHUMPARAMBU BHAGOM, VADAKKUM BHAGOM KARA,
CHIRAKKADAVU VILLAGE, KANJIRAPPALLYTALUK, PIN 686 507.
4. UNNIKRISHNAN NAIR, S/O.MADHAVAN NAIR, VADAKKEKKARA HOUSE,
VADAKKUM BHAGOM KARA, CHIRAKKADAVU VILLAGE,
KANJIRAPPALLY TALUK, PIN 686 507.
5. PROF.P.J.KURIAN, S/O.JOSEPH, DEPUTY CHARIMAN,
RAJYA SABHA, PERMANENTLY RESIDING AT PALLATHU VEEDU,
PADUTHODU KARA, PATHANAMTHITTADISTRICT, 689 544.
R1 BY PUBLIC PROSECUTOR SRI.C.RASHEED
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 05/10/2013, THE COURT ON 23/10/2013 PASSED THE FOLLOWING:
Kss
Crl.MC.No. 4422 of 2013
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEXURE-I: TRUE COPY OF THE ORDER IN CRL.M.P.NO.4628/2006 IN
SC 413/2006 DATED 25.10.2006 BY THE ADDITIONAL SESSIONS
JUDGE, THODUPUZHA.
ANNEXURE-II: THE ORDER PASSED BY THE HON'BLE COURT IN
CRL.R.P.3921/2006 DATED 4/4/2007.
ANNEXURE-III: TRUE COPY OF THE NEWS ITEM APPEARED IN THIS REGARD,
IN DESHABHIMANI DAILY DATED 2/2/2013.
ANNEXURE-IV: TRUE COPY OF THE NEWS ITEM APPEARED IN
KERALAKAUMUDI DAILY DATED 9/2/2013.
ANNEXURE-V: TRUE COPY OF THE PAPER REPORT REGARDING THE
STATEMENT OF IDICULLA'S WIFE ANNAMMA PUBLISHED IN
KERALAKAUMUDI DAILY DATED 6/2/2013.
ANNEXURE-VI: TRUE COPY OF THE RELEVANT PORITON OF THE
MATHRUBHUMI DAILYNEWSPAPER DATED 12/2/2013.
ANNEXURE-VII: TRUE COPY OF THE NEWS ITEM APPEARED IN DESHABHIMANI
DAILY DATED 12/2/2013.
ANNEXURE-VIII: THE LETTER BY S.H.O., CHINGAVANAM POLICE STATION
DATED 26/2/2013 COMMUNICATING THE INABILITY TO
REGISTER A CASE OR CONDUCT INVESTIGATION INTO THE
COMPLAINT.
ANNEXURE-IX: TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER
BEFORE JFCM COURT II, PEERMADE.
ANNEXURE-X: TRUE COPY OF THE ORDER OF THE JFCM COURT II,
PEERMADE DATED 2.3.2013.
ANNEXURE-XI: TRUE COPY OF THE CERTIFIED COPY OF THE ORDER IN
CRL.R.P.NO.3/2013 DATED 29/6/2013 OF SESSIONS COURT,
THODUPUZHA.
RESPONDENT(S)' ANNEXURES:
---------------------------------------------- N I L
/TRUE COPY/
P.S.TOJUDGE
Kss
P. BHAVADASAN, J.
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Crl.M.C. No. 4422 of 2013
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Dated this the 23rd day of October, 2013.
ORDER
Aggrieved by the dismissal of the private complaint filed by the petitioner by the Judicial Magistrate of First Class, Peermade which was confirmed in revision by the Sessions Court, Thodupuzha in Crl.R.P.No. 3 of 2013, the complainant has come up before this Court under Section 482 of the Code of Criminal Procedure seeking to have the orders impugned quashed and for a direction that steps in accordance with law will be taken on her complaint.
2. At the outset itself, it may be observed that both the courts below have come to the conclusion that after having the first complaint aborted on the discharge of the fifth respondent herein which was confirmed by the Apex Court, a second complaint on the similar set of facts, with no new materials disclosed, need not be entertained. The grievance Crl.M.C.4422/2013.
2of the petitioner seems to be that the Station House Officer concerned, before whom a complaint was filed, could not have refused to register a case since a cognizable offence was made out and the alternative contention is that when a private complaint was laid before the JFCM Court, Peermade since a cognizable offence is alleged and is prima facie made out, the learned Magistrate had only two options, namely, (i) either to refer the complaint to the police for investigation under Section 156(3) Cr.P.C. or (ii) to proceed under Sections 200 to 204 Cr.P.C. The contention is that after taking the sworn statement and the evidence that is sought to be adduced by the complainant, if the learned Magistrate finds that there are no materials to proceed against the accused persons, he may be well within his powers to dismiss the complaint. But without referring the complaint for investigation under Section 156(3) Cr.P.C. and without following the procedures under Sections 200 to 204 Cr.P.C., the learned Magistrate could not have rejected the complaint at the threshold. At any Crl.M.C.4422/2013.
3rate, the learned Sessions Judge was not justified in confirming the rejection of the private complaint filed by the petitioner herein.
3. This proceedings is an offshoot of what now popularly known as 'Suryanelli sex scandal case'. In this proceedings also, like in the earlier complaint filed by the petitioner herein, action is directed against the fifth respondent.
4. To understand the real issues involved and the controversy agitated, it is necessary to understand some basic facts.
5. The victim-complainant, who was only aged 16 at the relevant time, was taken from place to place and was subjected to forced sexual assault. Ultimately on a complaint filed by the victim, a crime was registered and after investigation final report was laid. There are several accused in the case.
Crl.M.C.4422/2013.
4
6. It must be noticed here that all the respondents herein were initially shown as accused in the case. However, after investigation, the name of the fifth respondent was excluded from the final report.
7. Cognizance of the offences was taken and after committal, the case was numbered as S.C. No. 187 of 1999. At that time, the second respondent herein had absconded and the case against him was split up. Later on, on his apprehension, the split up case as against him was renumbered as S.C. 241 of 2001.
8. Both the cases went for trial. The trial court found all the accused guilty and conviction and sentence followed. The aggrieved persons brought up the matter in appeal before this Court. This Court allowed the appeals and acquitted all the accused. The order of acquittal by this Court was carried in appeal before the Apex Court.
9. It may be mentioned herein that in the meanwhile, finding that the police officers had excluded the Crl.M.C.4422/2013.
5fifth respondent herein from the party array and complaining that it was a deliberate omission to save the fifth respondent, the victim in the case filed Crl.M.P. 1436 of 1999, a private complaint before the JFCM Court, Peermade accusing the fifth respondent herein of having committed offences punishable under Sections 363, 365, 366, 368, 373, 376, 392 and 109 read with Section 34 of I.P.C. The JFCM court concerned took cognizance on the complaint and after following the necessary procedures as per order in C.P. 21 of 1999 committed the case to Sessions Court. At the time when the matter was pending before the JFCM Court, there was an attempt from the side of the fifth respondent to have the entire proceedings quashed. He did not succeed in his attempt. Even though that order was carried till the Apex Court, the result remained the same. In the meanwhile, on committal the Sessions Court took the case on file as S.C. No. 413 of 2006. Taking aid of the observations made by the Apex Court while dismissing the petition to quash the proceedings, which was then pending before the Crl.M.C.4422/2013.
6JFCM Court, to the effect that the petitioner could approach the Sessions Court seeking necessary reliefs, the fifth respondent herein moved the Sessions Court for discharge. After considering the materials before it and hearing the fifth respondent, the Sessions Court dismissed the petition. The fifth respondent took up the matter before this court as Crl.R.P. 3291 of 2006 and this Court by order dated 4.4.2007 accepted the plea of the fifth respondent and discharged him and the entire proceedings stood dropped. Even though the State challenged the order of discharge before the Apex Court, that yielded no result.
4. Six years thereafter, based on a blabbing by the second respondent herein who till then was in the hiding and who had suddenly surfaced and whose utterances were published in newspapers, the victim initially approached the Station House Officer and also filed a complaint before the Superintendent of Police, Idukki. A reply was given to the complainant that since the matter has already been Crl.M.C.4422/2013.
7investigated and the role of the fifth respondent has already been determined, there was no scope of further enquiry into the matter.
5. That led the victim to file C.M.P.1134 of 2013 before JFCM-II, Peermade based on the so-called revelation made by the second respondent herein regarding the involvement of the fifth respondent and alleging offences punishable under Sections 120B, 342 and 376 of I.P.C. against the accused persons shown in the private complaint.
6. The learned Magistrate, on perusing the complaint, found that no new materials had been brought before him to take a different view from the earlier proceedings and he, accordingly, as per Annexure X order, rejected the complaint.
7. The aggrieved victim carried the matter in revision as Crl.R.P. No. 3 of 2013 before the Sessions Court, Thodupuzha.
Crl.M.C.4422/2013.
8
8. The Sessions Court, Thodupuzha found that even though the offences made mention of in Crl.M.P. 1134 of 2013 were Sections 120B, 342 and 376, the allegations and the materials, based on which the complaint proceeded, were substantially the same as in the earlier complaint. Finding that there were no new materials or fresh materials which the victim could not unearth exercising due diligence earlier, the Sessions Court held that the JFCM-II, Peermade was justified in rejecting the complaint, and dismissed the revision petition.
9. Shri. M.R.Rajendran Nair, learned Senior Counsel appearing for the revision petitioner contended that the orders of the JFCM-II, Peermade and the Sessions Court, Thodupuzha are clearly unsustainable both on facts and in law. According to the learned Senior Counsel, once a private complaint is laid before the Magistrate which discloses the commission of a cognizable offence, the Magistrate has only two options, i.e.,
(i) either to forward the complaint under Section 156(3) Cr.P.C. or (ii) to proceed under Sections 200 to 204 Cr.P.C. According Crl.M.C.4422/2013.
9to the learned Senior Counsel, the learned Magistrate could not have at the threshold rejected the complaint which is unknown to law. The learned Senior Counsel also emphasized that what persuaded the courts below to reject the complaint was the fact of discharge of the fifth respondent in the earlier proceedings. Learned Senior Counsel went on to contend that the order of discharge passed by this court in Crl.R.P. 3921 of 2006 was without notice to the victim or the prosecutrix and therefore, the said order of discharge is not binding on her. She can ignore the said order of discharge and if that be so, it could not, in law, be said that the present complaint is a second complaint. Whatever that be, according to the learned Senior Counsel, the course adopted by the courts below has no sanction of law. The learned Magistrate, according to the learned Senior Counsel, should have proceeded under Sections 200 to 204 Cr.P.C. and should have afforded an opportunity to the complainant to adduce evidence to show that fresh materials have been unearthed which she could not have Crl.M.C.4422/2013.
10gathered after exercising due diligence on the previous occasion, which warranted a fresh look at the issue. The prosecutrix has been deprived of a valuable legal right and therefore, the orders of the courts below cannot be sustained.
10. The learned Public Prosecutor appearing on behalf the State on the other hand contended that there is absolutely no merit in the contentions raised by the petitioner before this Court. The learned Public Prosecutor contended that true, the offences shown in the present complaint may be different from the one which were shown in the earlier complaint. However, the learned Public Prosecutor went on to point out that respondents 2, 3 and 4 have already undergone trial and they were convicted by the trial court. Though they were acquitted by this Court in appeal, the Apex Court has reversed the order of acquittal and remanded the matter to this Court and the matter is being heard by a Bench of this Court. It may not be possible thereafter to attribute different offences to respondents 2 to 4 quoting some other provisions Crl.M.C.4422/2013.
11of the I.P.C. and they cannot be asked to stand a second trial. As far as the fifth respondent is concerned, according to the learned Public Prosecutor, all that the victim has at present is a newspaper report about what has been uttered by the second respondent while giving a press interview. The learned Public Prosecutor also pointed out that at a later stage, the second respondent has explained his statement and has clarified that the fifth respondent had no role in the incident. The learned Public Prosecutor contended that by merely stating that the victim had no notice of the earlier proceedings wherein the fifth respondent obtained a discharge from this Court and which was confirmed by the Apex Court, the petitioner cannot avoid the order of discharge. It must be remembered, according to the learned Public Prosecutor, that it was on a proceedings initiated on a private complaint filed by the victim wherein ultimately the order of discharge was passed and that aborted her complaint. The victim cannot plead ignorance of what had transpired and say that she is Crl.M.C.4422/2013.
12not bound by the order. If she was aggrieved by the order of discharge, it was for her to take such steps available under law at the appropriate time. It comes with little grace now for the victim to come forward with a paper clipping to again initiate proceedings against the fifth respondent afresh. The learned Public Prosecutor drew the attention of this Court that initially because of the allegation that the fifth respondent was a powerful politician who can exert tremendous force, several senior police officers were entrusted with the investigation and all of them unanimously came to the conclusion that the allegations against the fifth respondent are baseless. According to the learned Public Prosecutor the Sessions Court, Thodupuzha has considered the matter in considerable detail and has come to the conclusion that there are no fresh materials or new materials which would warrant proceeding with the complaint filed as Crl.M.P.1134 of 2013. According to the learned Public Prosecutor, no grounds are made out to interfere with the orders of the courts below and the petition is Crl.M.C.4422/2013.
13only to be dismissed.
11. At the outset itself it may be observed that the earlier trial in which respondents 2 to 4 herein faced trial they too were found guilty along with the other accused persons. They were convicted and sentenced for various offences. They along with the other accused persons brought up the matter in appeal before this Court and this Court allowed the appeals and acquitted the accused. The State carried the matter in appeal before the Apex Court and the Apex Court set aside the order of acquittal of this Court and remanded the appeals for fresh hearing. Those appeals are being heard by a Bench of this Court now.
12. It is not a case where there were no accusation of the involvement of the fifth respondent at the initial stage itself. There were allegations against him and investigation was conducted regarding his role also. From the records, it is seen that several senior police officers one after another were entrusted with the task of investigating the role of the fifth Crl.M.C.4422/2013.
14respondent in the incident. All of them after due enquiry and investigation, came to the same conclusion that the fifth respondent herein had no role to play. That is how he stood excluded from the final report filed in the case.
13. The petitioner herein did not leave the matter there. She filed a private complaint as Crl.M.P. 1436 of 1999 before the JFCM, Peermade alleging that the fifth respondent had committed offences punishable under Sections 363, 365, 366, 368, 373, 376, 392 and 109 read with Section 34 of I.P.C. along with the other accused persons mentioned therein. The learned Magistrate proceeded under Sections 200 to 203 Cr.P.C. and took the case on file as C.P. 21 of 1999 and issued process to the fifth respondent under Section 204 Cr.P.C. On service of summons, it is seen from the records that the fifth respondent moved this Court for quashing of the proceedings as against him. His plea was rejected by this Court. The matter was carried in S.L.P. 3908 of 1999 before the Apex Court by the fifth respondent. The Apex Court Crl.M.C.4422/2013.
15refused to interfere with the order of this Court, but however, granted opportunity to the fifth respondent to approach the Sessions Court seeking necessary reliefs. In the meanwhile, JFCM Court, Peermade committed the case to Sessions Court who took the matter on file as S.C. 413 of 2006. Taking aid of the opportunity given to the fifth respondent to move the Sessions Court, he sought for a discharge from the Sessions Court. The Sessions Court rejected his plea for discharge. The fifth respondent brought up the matter in revision before this Court in Crl.R.P. 3921 of 2006. This Court, by order dated 4.4.2007 allowed the petition and accepted the plea of discharge made by the fifth respondent. The petitioner has produced a copy of the order of discharge as Annexure II.
14. It may be worth quoting the concluding portion of the order of discharge passed by this Court, which reads as follows:
"It is quite unfortunate that the petitioner had to undergo the trauma of facing such a false case of Crl.M.C.4422/2013.16
a scandalous nature for the last more than one decade. The entire proceedings against the petitioner is liable to be set aside, and I do so. The petitioner/accused shall stand discharged."
15. Though the fifth respondent might have learned a sigh of relief and thought that his trauma had come to an end, he was mistaken.
16. It is true that in Annexure II proceedings, the victim is not shown as the respondent and it does not appear that she was heard in the matter. The claim of the petitioner before this Court is that since the order of discharge has been passed behind her back, the order is not binding on her and she could ignore the same.
17. One has to notice that the order of discharge was challenged before the Apex Court by the State. But the Apex Court refused to interfere with Annexure II order passed by this Court. It is difficult to believe that the petitioner herein was unaware of the order since in the light of the order of Crl.M.C.4422/2013.
17discharge passed in favour of the fifth respondent in those proceedings, her complaint before the JFCM Court Peermade which resulted in S.C. 413 of 2006 before the Sessions Court, Thodupuzha, stood aborted. She must have certainly come to know about the result of the proceedings before this Court and the fact that the fifth respondent has been discharged. As to whether notice should have been issued to the complainant etc. are matters which need not be considered in these proceedings at all. If as a matter of fact the petitioner was aggrieved by the order of discharge, nothing prevented her from agitating the issue further. One thing is clear and that is she cannot plead complete ignorance of the order of discharge obtained by the fifth respondent from this Court.
18. The result of the order of discharge passed in the earlier complaint is that for all practical purposes the complaint filed by the petitioner as against the fifth respondent came to an end. It must be borne in mind that the order of discharge was passed even after the entire Crl.M.C.4422/2013.
18proceedings under Sections 200 to 203 of Cr.P.C. were followed and the order of discharge was passed on the evaluation of the materials collected during enquiry.
19. Viewed from that angle, necessarily the present complaint can be treated only as a second complaint. It is true that in the decision reported in Pramatha Nath Talukdar v. Sarob Ranjan (AIR 1962 SC 876) it was held that the second complaint may be maintainable under exceptional circumstances. The Apex Court had occasion to observe that if fresh materials, which the complainant on the earlier occasion could not have gathered even after due exercise of diligence, come to the complainant's knowledge, a second complaint may be entertainable. If on the other hand, no new materials are disclosed, a second complaint on the same set of facts need not be entertained. The said decision holds good even now and has been followed in subsequent decisions by the Apex Court.
Crl.M.C.4422/2013.
19
20. The first of the contentions of the learned Senior Counsel for the petitioner that on the filing of a private complaint of the nature involved in the present case, the learned Magistrate has only two options made mention of earlier cannot be countenanced. If on perusal of the complaint, the learned Magistrate comes to the conclusion that the said complaint contained no fresh materials and only a reproduction of the earlier complaint which was disposed of on merits, even though the offences may be differently mentioned, he is certainly within his powers to reject the complaint. Under Such circumstances, the learned Magistrate is not duty bound either to send the complaint for enquiry under Section 156(3) of Cr.P.C. or to take cognizance on the complaint and proceed in accordance with Sections 200 to 204 Cr.P.C.
21. The powers of a Magistrate to take cognizance are well settled. He may take cognizance (i) on a police report, (ii) on a private complaint and (iii) on suo motu Crl.M.C.4422/2013.
20proceedings. On receipt of a complaint, the learned Magistrate has two options, (i) after perusing the complaint he may send it for investigation under Section 156(3) Cr.P.C. and await final report and (ii) he may also decide to take cognizance on the complaint and thereafter he is precluded from sending the complaint for investigation under Section 156(3) Cr.P.C.. Once he takes cognizance on the complaint, he is bound to follow the procedures laid down under Sections 200 to 203 of Cr.P.C. Of course, except in cases which disclose offences exclusively triable by a court of Sessions, under Section 202 Cr.P.C., he may send the matter for investigation by the police. But any report filed in consequence thereof by the police cannot be treated as a final report as contemplated under Section 173(2) Cr.P.C. The report filed by the police on investigation conducted in pursuance to the order under Section 202 Cr.P.C. is only to be treated as a material for the Magistrate to form the opinion as to whether a prima facie case is made out against the accused Crl.M.C.4422/2013.
21persons. These principles are well settled.
22. Probably in the case on hand, the learned Magistrate has not written an elaborate order, but his order produced as Annexure I contains what is necessary. The learned Magistrate has observed that no new materials are furnished to warrant a further enquiry into the complaint.
23. Even assuming that the order of the learned JFCM Court-II, Peermade suffers from want of details, that infirmity has been cured by the order of the learned Sessions Judge in Crl.R.P.3 of 2013. The learned Sessions Judge has elaborately considered the matter and has come to the conclusion that the order of rejection is proper. To put it in the words of the learned Sessions Judge "the present complaint is only old wine in a new bottle." The learned Sessions Judge has taken note of the fact that the only material based on which the present complaint has been laid is the utterances of the second respondent published in a newspaper. The learned Sessions Judge has noticed that even Crl.M.C.4422/2013.
22assuming such a statement was made by the second respondent, it cannot have much legal value and it cannot be deemed to be a new material warranting a fresh look on the issue.
24. After having heard learned counsel for the petitioner and the learned Public Prosecutor, and also after having perused the orders of the courts below, this Court finds no grounds to interfere with the orders of the courts below.
25. It is significant to notice that the order of discharge of the fifth respondent was passed as early as in 2007. Six years have elapsed. Apart from the said fact, the records indicate that since it was alleged that the fifth respondent is a powerful politician wielding considerable influence in various circles, initial investigation against him was entrusted to several senior police officers including DIG, who after independent enquiry and investigation, came to an identical conclusion that the fifth respondent had no role to Crl.M.C.4422/2013.
23play in the incident. It was thereafter that the private complaint was laid by the victim, the details of which has already been referred to. As already noticed, it is difficult to accept that the petitioner can simply ignore the order of discharge passed by this Court in favour of the fifth respondent as confirmed by the Apex Court because she did not have notice in the proceedings in which the order of discharge was passed. At the risk of repetition, it may be noticed that she cannot plead ignorance of the order for the simple reason hat the proceedings which were initiated on her complaint had been aborted by the order of discharge. Till date, the petitioner has not moved her little finger to challenge the order of discharge or to raise grievances against the same.
26. As rightly noticed by the Sessions Court, Thodupuzha, even though the offences in the present complaint shown are different, when the two complaints are read together and the materials evaluated, it was almost the same. Of course, it is true that in the present complaint, the Crl.M.C.4422/2013.
24main basis is the so-called revelation made by the second respondent herein which was published in newspapers. It is significant to notice that in the private complaint now laid by the victim, the only witnesses shown are two employees of the Mathrubhoomi Channel. There is no other material or witness to support the claim made by the complainant in the private complaint laid before JFCM Court-II, Peermade. One cannot omit to note that the second respondent was a co-accused who had undergone trial in the earlier case. How far, even assuming his statement to be correct, can be binding on the fifth respondent and what evidentiary value it could have are matters open to serious doubt. Except for this material, there is no other material pointed out by the petitioner to entertain a second complaint as per the test laid down in the decision already referred to.
27. As already noticed, the grievance of the petitioner regarding the order of discharge passed by this Court as affirmed by the Apex Court is not a matter to be gone Crl.M.C.4422/2013.
25into in these proceedings. The Sessions Court, Thodupuzha has rightly noticed that though the entire allegations are couched in a different form and the offences made mention of are different, especially the grievance is the same as in the previous complaint. The Sessions Court, Thodupuzha has also mentioned in its order that the second respondent herein had entered appearance and filed an affidavit before the court in these proceedings. The revisional court has extracted the contents of the affidavit in page 11 of its order.
28. The Sessions Court, Thodupuzha in paragraph 32 of its order has taken pains to refer to the investigation done by various officers regarding the role of the fifth respondent and the ultimate conclusion drawn by the officers that the fifth respondent is not involved in the incident.
29. The lower court was not unjustified in coming to the conclusion that it may not be possible to re-try respondents 2 to 4 for different offences. Any how, that matter need not detain this Court further. Suffice to say that Crl.M.C.4422/2013.
26on going through the complaint and the materials now placed before this Court, one cannot come to the conclusion that the present complaint is laid on new and fresh materials which came to light at a later stage which with due diligence the complainant could not unearth on the earlier occasion.
30. Of course, the trauma undergone by the victim is quite understandable and this Court is not forgetful of the need to be sensitive, sympathetic and considerate to such victims. But at the same time, one cannot also omit to note that the threat of Suryanelli has been haunting the fifth respondent for years. His role was investigated by several superior officers and he was also proceeded against on a private complaint laid by the victim. As far as he is concerned, by the discharge in the year 2007, he might have hoped that the matter be given a quietus. Whatever that be, it could not be said that the mere fact that the second respondent herein had uttered something about the role of the fifth respondent in the incident, which it must be remembered, he later Crl.M.C.4422/2013.
27explained in his affidavit, does not constitute a new material warranting fresh action against the fifth respondent. This Court finds no grounds to interfere with the orders of the court below rejecting the complaint.
The result is that, this petition is without merits and it is liable to be dismissed. I do so.
P. BHAVADASAN, JUDGE sb.