Kerala High Court
Sajeev K.D vs The State Of Kerala on 23 March, 2017
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 23RD DAY OF MARCH 2017/2ND CHAITHRA, 1939
Crl.MC.No. 7595 of 2016 ()
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AGAINST THE ORDER/JUDGMENT IN CC 185/2011 of C.J.M.PALAKKAD
CRIME NO. 219/2011 OF TOWN NORTH POLICE STATION , PALAKKAD
PETITIONER(S)/PETITIONER:
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SAJEEV K.D
AGED 44, S/O.DEVASSYA,
KUNDOMTHARA VEEDU,
CHOWKA, ELANJIPRA P O,
CHALAKKUDY.
BY ADVS.SRI.R.T.PRADEEP
SMT.M.BINDUDAS
RESPONDENT(S)/RESPONDENTS:
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THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,.
HIGH COURT OF KERALA.,
ERNAKULAM-682031.
R BY PUBLIC PROSECUTOR SRI.E.C.BINEESH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-
11-2016, THE COURT ON 23/3/2017 PASSED THE FOLLOWING:
Crl.MC.No. 7595 of 2016 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE 1 CERTIFIED COPY OF FIR DTD 17/4/2011 IN CRIME NO
219/2011 OF PALAKKAD TOWN NORTH POLICE STATION.
ANNEXURE II CERTIFIED COPY OF FINAL REPORT DTD 30/8/2011 IN CRIME
NO 219/2011 OF PALAKKAD TOWN NORTH POLICE STATION.
ANNEXURE III TRUE COPY OF PROCEEDINGS RIGHT FROM 13/12/2011 TO
28/10/2016 IN CC NO 185/2011 BY CJM PALAKKAD.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
/TRUE COPY/ PS TO JUDGE.
SUNIL THOMAS, J.
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Crl.M.C.No. 7595 of 2016
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Dated this the 23rd day of March, 2017
O R D E R
Crl.M.C.is preferred by the sole accused in CC No.185/2011 of Chief Judicial Magistrate, Palakkad which arises from Crime No.219/2011 of Palakkad Town North Police Station for offences punishable under Sections 294(b), 506(i) of IPC and sections 118
(d), 119(1) (b) of Kerala Police Act and section 66A of Information Technology Act.
2. The allegation of the defacto complainant was that, from 2000 onwards, the accused who got acquainted with the daughter of the defacto complainant, had attempted to sexually abuse her. She was threatened that he will upload her forged profile on the public domain. In fact, he had uploaded the forged profile with the photo of the daughter. On the basis of Annexure A1 FIR, crime was registered and after investigation, Annexure A2 final report was laid. The accused who denied the allegation, faced the trial before the court below. The trial was completed on 25/8/2015 and posted to 9/9/2015. On that day, the learned Public Prosecutor submitted that there was no further evidence and the case was posted for questioning under section 313 Cr.P.C. In the meanwhile, CMP No.4706/2015 was filed by the prosecution to re-open under section 311 Cr.P.C. to examine the additional witnesses. It was Crl.M.C.No.7595/2016 2 allowed and in spite of issuance of summons to the witnesses, the witnesses did not appear. Hence, the case was posted for recording the statement under section 313 Cr.P.C. It was completed on 1-4-016 and thereafter adjourned for defence evidence. After several postings, the case was posted for judgment on 27/6/2016. On that day, the prosecution filed CMP No.3867/2016 to re-open the evidence and to recall PW2 and PW 4 to mark Orkut details. The court below dismissed the application and again re-posted the matter for judgment. After several postings for judgment. on 25/10/2016 the court suo motu reopened the case holding that the offence under section 509 IPC is prima facie made out and posted the case to 28/10/2016 to frame additional charge under section 509 IPC. The charges so framed were read over and the parties were given an opportunity to recall the witnesses.
3. The petitioner alleged that though charge was read over, it did not form part of the judicial records. The petitioner has approached this court contending that offence under sections 506, 509 IPC and other offences alleged against the petitioner are not made out. Hence, he sought to quash the proceedings.
4. Framing of charge under section 509 IPC is challenged along with the remaining offences. One of the grounds of attack was that,even though the charge was purportedly read over on 28/10/2016 and the plea recorded, according to the petitioner Crl.M.C.No.7595/2016 3 herein, plea was not actually recorded on that day. I am not inclined to accept this since Annexure A3 proceeding dated 25/10/2016 shows that the charge was read over and denied by the accused. Hence, his contention that the plea was not actually recorded cannot prima facie be accepted.
5. Regarding the contention that sections 119(1)(b) and section 506 IPC are not attracted, I am not inclined to agree with the arguments at this stage since the matter is now within the domain of appreciation of evidence after long lapse of time.
6. The petitioner has yet another contention that section 509 IPC calls for summons case procedure and hence, no charge could be framed on such offence. I am not inclined to accept this contention since the petitioner is charged under section 509 IPC along with other offences. Even otherwise, it is not an objection which does not go to the root to the proceedings. Further no prejudice can be alleged by the petitioner herein in the light of the fact that the parties have been granted an opportunity to recall the witnesses in the light of the new charge framed.
Crl.M.C.fails and is dismissed. The court below shall proceed in accordance with law at the earliest, having regard to the long delay that has already occurred .
Sd/-
SUNIL THOMAS
Judge
dpk /true copy/ PS to Judge.
Crl.M.C.No.7595/2016 4