IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 Crl.Rev.Pet.No. 624 of 2011() ----------------------------- CMP.NO.249/2011 IN SC.89/2010 of ADDL.SESSIONS COURT (SPL.COURT), KOTTAYAM .................... REVISION PETITIONER(S): ACCUSED NO.8: ----------------------------------------------------------------- K.C.PETER, AGED 66 YEARS, S/O.K.P.CHACKO (LATE), MUPRAPALLIL VEEDU, XLII/1840-A, ST.BENEDICT ROAD, ERNAKULAM. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, BY ADV. SRI.NIREESH MATHEW, SRI.SAJI SANKARAN NAIR, SRI.M.G.KARTHIKEYAN. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY CBCID, ERNAKULAM, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SPL.PUBLIC PROSECUTOR SRI. C.P.UDAYABHANU BY PUBLIC PROSECUTOR SRI. C.K.SURESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN,J. ---------------------------------------------------------- Crl.R.P.No. 624 of 2011 'C.R.' --------------------------------------------------------- Dated this the 14th day of March,2011 O R D E R An unfortunate, innocent and illiterate rustic village girl was trapped by a sex racket and she is subjected to flesh trade and according to the prosecution, the present petitioner is one of the customers, who committed rape on her, and it is that accused preferred this Criminal Revision Petition, against the order dated 16.2.2011 of the court of Additional Sessions Judge (Special), Kottayam in Crl.M.A.No.249 of 2011 in S.C.No.89 of 2010, by which the learned Sessions Judge rejected the plea of the petitioner for a discharge under Section 227 of the Criminal Procedure Code (hereinafter referred to for short as 'the Cr.P.C.' only) 2. The brief facts which led to the impugned order are as follows:- Originally, Crime No.5 of 1996 of Vanitha Police Station, Ernakulam, was registered on 24.7.1996 for the offences punishable Crl.R.PNO.624 of 2011 :-2-: under Sections 366A,372,373,376 and 344 r/w S.34 of the Indian Penal Code. Subsequently, the investigation was handed over to Crime Branch CID, Ernakulam and the case was re-registered as Crime No.192/CR/96 of CB CID, SIG II, Ernakulam. The case of the prosecution is that the victim, who was a minor girl, belonging to a remote village in Nedumangadu in Thiruvananthapuram District, was enticed and thus abducted by one Ajitha from the lawful custody of her parents on 21.10.1995 and then, she was entrusted with the first accused for the purpose of prostitution and for their unlawful enrichment. According to the prosecution, the victim was trapped by offering her job at Ernakulam and thus, she was under the illegal confinement of the first accused from 21.10.1995 onwards and she was subjected to sexual intercourse with several persons for hire. Thus, according to the prosecution case, CW1, the girl was molested about 124 persons during the period from 21.10.1995 till the time of lodging the F.I.statement. According to the prosecution, during the Crl.R.PNO.624 of 2011 :-3-: investigation, though the victim was subjected to molestation by more than 124 persons, only 45 persons were located and identified. Thus, finally the prosecution has preferred 23 separate charge sheets. The present petitioner is the eighth accused in such split charge sheet No.13, on the basis of which S.C.No.89 of 2010 is instituted in the above special court. Thus, in the present case, the allegation is that the first accused entrusted CW1/the victim to accused Nos.2 to 5 and they confined her in their residential building viz., Karottu Koyikkal House No.297 situated in Division No.38 of the Cochin Corporation in Ernakulam Village, which was being conducted as a brothel, and those accused confined her in that house for 15 days. Thereafter, according to the prosecution, on 14.11.1995 during night, the 4th accused, by sharing common intention along with accused Nos.1 to 3 and 5, entrusted the victim, CW1- a minor girl to accused No.6, who in turn entrusted her to accused Nos.7 and 9 for illicit sexual intercourse for a remuneration of `.6000/-. The 7th and 9th accused, Crl.R.PNO.624 of 2011 :-4-: thus, got possession of the victim and had taken her to the restaurant attached to the International Hotel at Ernakulam and entrusted her with accused Nos.8 and 10. The petitioner herein is the 8th accused. Accordingly, it is the further case of the prosecution that the revision petitioner and 10th accused took her to room No.406 which is situated on the 4th floor of the International Hotel at Ernakulam and accused Nos.7 and 8 had illicit sexual intercourse with CW1 against her will and without her consent. It is the further allegation that thereafter, accused Nos.9 and 10 outraged the modesty of the victim CW1. Thus, according to the prosecution, the accused including the revision petitioner have committed the offences punishable under Sections 344,372,373,376(1),354 and 109 read with Section 34 of I.P.C. and with Sections 3(1),5(1)(d)(ii) of the Immoral Traffic (Prevention) Act,1956 (for short 'the Act'). Before the present proceedings, the petitioner approached this Court by filing Crl.M.C.No.1544 of 2010 to quash the entire proceedings in S.C.No. 89 of 2010 pending before the Crl.R.PNO.624 of 2011 :-5-: Special Court, more or less on the same grounds as raised herein, but this Court, by order dated 28.9.2010 in Crl.M.C.No.1544 of 2010, rejected the prayer and relegated the petitioner to approach the trial court for discharge under Section 227 of the Cr.P.C. Thus, the petitioner herein moved Crl.M.P.No.249 of 2011 in S.C.No.89 of 2010 before the court of Additional Sessions Judge, Special Court, Kottayam seeking his discharge under Section 227 of Cr.P.C., which was dismissed by the learned Sessions Judge by the impugned order and accordingly, on 19.2.2011, charge was framed against the petitioner/8th accused for the offences punishable under Section 342 read with Section 34, 373 read with Section 34, 376 of I.P.C. and Section 5(i)(a)(1) of the Act read with Section 34 I.P.C. It is the above charge and order dated 16.2.2011 in Crl.M.P.No.249 of 2011 are challenged in this Crl.R.P. 3. The above revision petition came up for consideration and admission on 1.3.2011 and at the request of the Public Prosecutor and Crl.R.PNO.624 of 2011 :-6-: the Special Public Prosecutor, for getting instructions, the matter was adjourned and posted to 7.3.2011 for hearing on admission. So, this matter is heard in the noon session of this Court on 7.3.2011,8.3.2011 and 9.3.2011. Such a schedule was fixed since more time is required for hearing, which would likely to affect the consideration of other matters posted for admission and hearing on those dates. 4. Thus, I have heard Sri.C.C.Thomas, learned Senior Counsel appearing for the revision petitioner, Sri.C.P.Udaya Bhanu, learned Special Public Prosecutor and Sri.C.K.Suresh, learned Public Prosecutor of this Court. 5. Sri.C.C.Thomas, learned Senior counsel, in support of the fervent plea of the revision petitioner for a discharge from the above Sessions Case, strenuously submitted that the order of the court below and the charge framed by it are liable to the set aside and the revision petitioner is entitled to get a discharge. Learned counsel took me repeatedly through the four statements of the victim recorded under Crl.R.PNO.624 of 2011 :-7-: Section 161 of Cr.P.C. on various occasions. Learned counsel also took me through the 161 statement of the witnesses viz., Cws.13,14,15,16,17,18,19 and 20 and submitted that the finding of the court below that there are grounds to proceed against the revision petitioner is absolutely incorrect and illegal. According to the learned counsel, even though the petitioner is forced to undergo the ordeal of trial, no conviction can be possible. It is the specific submission of the learned counsel that CW1 is a person, who voluntarily left her house and parents and came to Ernakulam and subjected herself to sexual intercourse with various persons voluntarily and at the time of the alleged rape, that attributed against the revision petitioner, the victim was not a minor and she had not made any complaint till the time of launching the F.I. statement and therefore, even if the entire allegations are accepted as true, no offence under Section 376 of I.P.C. is attracted against the revision petitioner since CW1 was a consenting party, especially in view of Section 90 of I.P.C. It is the Crl.R.PNO.624 of 2011 :-8-: further submission of the learned counsel that in none of the statements of victim recorded on various occasions i.e., on 23.7.1996,24.8.1996,25.8.1996 and 30.9.1996, the name of the petitioner is mentioned by the victim except giving the features of a person and calling him as 'Big Sir'. In support of the above contention, the learned counsel invited my attention to a common order dated 27.12.1996 of this Court in Crl.M.C.Nos.2797 and 2798 of 1996, whereby, while granting anticipatory bail to the petitioner herein and some other accused, this Court had observed “The prosecutrix had not either in the F.I.statement or when she was questioned, said anything against the petitioners.” It is also the contention of the learned counsel that the Police did not conduct any test identification parade during the investigation and there was no attempt from the side of the investigating agency to get identified the revision petitioner/8th accused by CW1 during the course of the investigation. Thus, according to the learned counsel, the revision Crl.R.PNO.624 of 2011 :-9-: petitioner is entitled to get an acquittal, otherwise, no purpose will be served even if he is forced to face the trial. Learned counsel pointed out that even according to the case of the prosecution, the revision petitioner is implicated in the crime on the basis of the confession statement of A7, who allegedly surrendered before the Police on 10.10.1996. On the strength of Sections 24,25 and 26 of the Indian Evidence Act, 1872 (for short 'the Evidence Act'), learned counsel submitted that the confession made by an accused before the Police either during the custody or otherwise is not admissible. So, according to the learned counsel, there is no legal evidence to connect the revision petitioner with the alleged offence especially when the victim did not identify the revision petitioner. The learned counsel further submitted that the confession statement of the co-accused, viz., A7 has not been produced by the prosecution along with the charge and as such, there is no document before the court to show that A7 had made a confession. In order to strengthen the above contention, Crl.R.PNO.624 of 2011 :-10-: learned counsel further pointed out that according to the prosecution, A7 has made the alleged confession before Sri.T.P.Sen Kumar, the S.P. who was supervising the investigation, but the said Police Officer is not cited as a witness and therefore, the prosecution cannot invoke the provisions of Section 30 of the Evidence Act and if that be so, the prosecution will not be in a position to prove the complicity and involvement of the revision petitioner/accused in the alleged offence. Learned counsel, after inviting my attention to the various provisions contained in the Act and the decisions of this Court, has contended that the owner of the International Hotel or the persons who are responsible for the conduct of the above International Hotel are not made as accused and therefore, none of the allegations raised against the petitioner under the provisions of the Act are attracted. 6. During the hearing of the matter, the learned counsel invited my attention to a decision of this Court in Tony Antony v. Director General of Police [1997(2) KLT 853], wherein the Division Bench, in Crl.R.PNO.624 of 2011 :-11-: two writ petitions filed by two accused in this case, with a prayer to quash the criminal proceedings against them, after considering the arguments advanced in that case and after examination of the materials thereon, formulated 11 facts which are as emerged in the light of the facts and circumstances involved in that case and finally observed as follows:- “This is not a case where the allegation of rape is levelled against one or two persons who have committed it on one or two occasions. This is not a case where a minor girl was lured into this abominable activity. This is not a case where consent of the victim was obtained by force or on threat of death or hurt everytime when a man had sexual intercourse with her. The version of a woman of this disposition is not so sacrosanct as to be taken for granted.” Thus, according to the learned counsel, the finding on facts arrived on by the Division Bench are strictly applicable in the present case and therefore, the petitioner is entitled to get a discharge. Learned counsel, in the light of the order passed by this Court while granting bail to the petitioner which indicated earlier, also submitted that there Crl.R.PNO.624 of 2011 :-12-: is no possibility to convict the petitioner even if he is compelled to undergo the trial. Learned counsel also invited my attention to the decision of the Honourable Supreme Court in State of Kerala v. O.C.Kuttan (1999 (1) KLT 747 (SC)] whereby the Apex Court has directed the investigating agency to proceed with the investigation and to conclude the same as expeditiously as possible, in accordance with law, but, according to the learned counsel, the present charge against the revision petitioner was filed only after nine years from the date of the judgment of the Supreme Court. In the light of the findings and observations made in the above two quoted cases and the above order of this Court, the learned counsel submitted that the Division Bench of this Court has found that the materials furnished by the prosecution at that time, were not sufficient to convict the accused. It is also the submission of the learned counsel that even after the judgment of the Honourable Apex Court in the decision reported in O.C.Kuttan's case (cited supra), though therein the prosecution submitted that they Crl.R.PNO.624 of 2011 :-13-: were at the threshold of the investigation and wanted time to collect materials, at the time of filing the present charge against the petitioner and other accused, there are no fresh materials other than what collected by the prosecution at the time of disposal of those matters. So, according to the learned Senior Counsel, after the Supreme Court decision referred to above, the investigating agency has not collected any fresh or more materials and therefore, the position will be restored to the stage, at which this Court has disposed of the matters as per the decision reported in Tony Antony's case (cited supra) and the above referred order of this Court. Thus, in substance, the submission of the learned counsel is that this Court, on two occasions as per the decision in Tony Antony's case [1997(2) KLT 853] and as per the order in Crl.M.C.Nos.2797 and 2798 of 1996, has categorically observed and found that no prosecution would lie against the accused in the present case. So according to the learned counsel, following the said observations and findings in the above decisions of this Court, this Crl.R.PNO.624 of 2011 :-14-: Court can also allow this revision petition and discharge the petitioner from the above Sessions Case. In support of the above, learned counsel placed reliance on the following decisions viz., Mandesan v. State of Kerala[1995 Crl.L.J. 61 ], Jagannivasan v. State of Kerala [1995 Supp(3) SCC 204], State of Kerala v. O.C.Kuttan [1999(1) KLT 747], Kurien v. Ranjitha [2000(1) KLT 388], Dilawar Balu Kurane v. State of Maharashtra [2002)2 SCC 135], Jinish Lal Sah v. State of Bihar [(2003)1 SCC 605], Uday v. State of Karnataka [(2003)4 SCC 46], Bhavsingh D.Rathod v.Asst.Collector of Customs [2005(3) KLT 210], Kurian v. State of Kerala [2007(3) KLT 36], John Varghese v. Central Bureau of Investigation [2009(1) KHC 702], X v. State of Kerala[2009(2) KLT 7] and Joseph v. S.I. of Plice, Munnar [2005(2) KLT 269]. 7. On the other hand, Sri.C.P.Udayabhanu, learned Special Public Prosecutor submitted that the prosecution had recorded the statements of the victim CW1 on four occasions and in those Crl.R.PNO.624 of 2011 :-15-: statements, she explained how she was trapped and the circumstances under which she was forced to subject herself to various persons at the instance of the accused. The learned Special Public Prosecutor further pointed out that the present revision petitioner is a well experienced Advocate, who occupied various posts relating to the prosecution for and on behalf of the State and by his experience in the profession and being a Prosecutor, he knows how a prosecution case and the investigation can be hijacked. It is the further submission of the learned Special Public Prosecutor that though the investigating agency on several occasions required the revision petitioner to co-operate with the investigation particularly for the test identification parade and also for the potency test of the petitioner, he never co-operated and therefore, there is no meaning in the submission of the learned Senior Counsel that the prosecution has not conducted any test identification parade or potency test. It is also the submission of the learned counsel that the materials now referred to by the senior counsel are Crl.R.PNO.624 of 2011 :-16-: yet to be adduced and to attain in the form of evidence and the learned Sessions Judge has already considered the same and found against the revision petitioner and therefore, there is no ground to interfere with the order impugned and the petitioner is not entitled to get a discharge. 8. Sri.C.K.Suresh, learned Public Prosecutor emphatically submitted that the trial court is perfectly legal and correct in exercising its powers under Section 227 of the Cr.P.C. and the Sessions Court at the time of framing charge and this Court while exercising the revisional jurisdiction against an order dismissing the petition for discharge, need to only consider whether there are grounds to proceed against the accused including the revision petitioner. Any attempt to exceed the above limit of jurisdiction will render the entire proceedings as illegal, improper and irregular. The learned Public Prosecutor strenuously submitted that the trial court, while framing the charge, is expected to see whether there is a prima facie case and ground to proceed against the accused and at the time of framing Crl.R.PNO.624 of 2011 :-17-: charge, it is not the duty of the court to see whether the materials furnished by the prosecution are sufficient to end in a conviction or otherwise. The learned Public Prosecutor further submitted that at the time of consideration of the matters pending before this Court or before the Apex Court, the investigation was not completed and the observations and findings are made only on the basis of the preliminary investigation and the initial materials collected and no report under Section 173(2) of Cr.P.C. was filed. Therefore, the superficial findings or observation shall not be a guidance for considering the plea for discharge. Learned Public Prosecutor emphatically submitted that all the observations and findings made by this Court in the decision reported in Tony Antony's case (1997(2) KLT 853) are overruled and set aside by the Apex Court through the decision reported in O.C.Kuttan's case (1999(1) KLT 747). The learned Public Prosecutor further submitted that the trial court issued the impugned order and framed the charge against the revision Crl.R.PNO.624 of 2011 :-18-: petitioner after satisfying that the materials and documents furnished by the prosecution have manifestly made out a prima facie case and grounds to proceed against the revision petitioner and therefore, the revision petition is liable to be dismissed. The learned Public Prosecutor cited the following decisions in support of his arguments, viz., Matru v. State of U.P.[1971 Crl.L.J.913], State of Maharashtra v. Priya Sharan Maharaj and Others [(1997)4 SCC 393], Visveswaran v. State Rep.by S.D.M. [(2003)6 SCC 73], Sarafat v. State of Uttaranchal [2006 Crl.L.J.654], Vijayan v. State of Kerala [2007(3) KLT 495], Hem Chand v. State of Jharkhand [AIR 2008 SC 1903] Sanghi Bros. (Indore)(P) Ltd. v. Sanjay Choudhary [(2008)10 SCC 681], Palwinder Singh v. Balwinder Singh and others [(2008)14 SCC 504],Ram Babu v. State of U.P. [AIR 2010 SC 2143], C.Muniappan v. State of Tamil Nadu [AIR 2010 SC 3718], P.Vijayan v. State of Kerala and Another [(2010)2 SCC 398 ], Musheer Khan v. State of M.P. [(2010)2 SCC 748], Vijay Alias Chinee v. State of Crl.R.PNO.624 of 2011 :-19-: Madhyapradesh [(2010)8 SCC 191], Sajjan Kumar v. Central Bureau of Investigation [(2010)9 SCC 368] and Motilal v. State of Madhyapradesh [(2008)11SCC 20]. 9. I have carefully considered the arguments advanced by Sri.C.C.Thomas, learned Senior Counsel who appeared for the revision petitioner and also the arguments advanced by the Special Public Prosecutor Sri.C.P.Udayabhanu and Sri.C.K.Suresh, the learned Public Prosecutor and I have carefully scrutinised the materials and documents made available to me including the C.D. and the report filed by the prosecution agency after investigation. I have also gone through the decisions cited by the counsel with utmost care. 10. At the outset, it is to be noted that except the framing of charge, the trial has not commenced and the process of recording of evidence is yet to be commenced. 11. The prosecution case, as indicated earlier, is that a minor girl was removed from the custody of the lawful guardian for the purpose Crl.R.PNO.624 of 2011 :-20-: of subjecting her to prostitution by a sex racket and she was subjected to various persons for sexual intercourse under threat, coercion and duress and that too without her consent and against her will. Thus, the specific allegation against the revision petitioner is that he is one of the customers and on 14.11.1995, he obtained possession of the victim CW1, a minor girl from the restaurant of the International Hotel at Ernakulam and took her to Room No.406 of that hotel and committed rape on her without her consent and against her will. 12. In the light of the above prosecution allegations and the materials and documents relied on by the prosecution, and in view of the rival pleadings taken by the contesting parties, the question to be considered is whether the learned Judge of the Special Court, by his order dated 16.2.2011 in Crl.M.P.No.249 of 2011 in S.C.No.89 of 2010, is justified in rejecting the plea of the petitioner for discharge under Section 227 of the Cr.P.C. and whether the said order and the charge dated 19.2.2011 framed against the petitioner are legally Crl.R.PNO.624 of 2011 :-21-: sustainable or the same are liable to be interfered with on the ground of any illegality, impropriety or irregularity in exercise of the revisional jurisdiction of this Court. 13. The main argument advanced by Sri.C.C.Thomas, learned senior counsel in support of the prayer for discharge is that even if the prosecution materials and evidence are admitted as such, no offence would lie against the revision petitioner. In support of the above submission, the learned counsel submitted that CW1 did not mention the name of the petitioner in any of her statement under Section 161 of Cr.P.C. and at the most, what can be seen from the statement is that she called one person as 'Big Sir', but there is no evidence to show that she inculpated the petitioner in the above crime by using the words as 'Big Sir'. In support of the above point, the learned counsel further pointed out that no test identification parade was conducted during the investigation and therefore, there will not be any evidentiary value even in case CW1 identifies the petitioner during the trial. So, Crl.R.PNO.624 of 2011 :-22-: according to the learned counsel, there is no substantial evidence to connect the petitioner with the crime. It is also the submission of the learned counsel that even if the allegation of sexual intercourse with CW1 is admitted, no offence under Section 376 will be attracted since at the time of the alleged incident, the victim was a major and she had voluntarily subjected herself for such sexual intercourse. The above conduct itself is sufficient to show that she was a willing party and accorded consent for the same. To substantiate the above contention, learned counsel banked upon the findings and observations of this Court in the decision in Tony Antony's case (1997(2) KLT 853) and the bail order dated 27.12.1996 in Crl.M.C.Nos.2797 and 2798 of 1996. Learned counsel further pointed out that in order to connect the petitioner with the crime, except the confession statement of co- accused