IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 Crl.MC.No. 1111 of 2004() ------------------------- SC.301/2001 OF THE ADDL. SESSIONS COURT (FAST TRACK COURT NO.I) MANJERI. .................... PETITIONER: ACCUSED: -------------------- RADHAKRISHNA MENON, S/O. KUTTAN MENON, VALLIKADU HOUSE, ARANTHODE, VALAMBOOR, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS: STATE: ------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PERINTHALMANNA POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI. K.C. SANTHOSH KUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No.1111 of 2004 ------------------------------------------------- Dated this the 6th day of June, 2008 ORDER The petitioner faced indictment in a prosecution under Sec.354 of the IPC. Cognizance was taken on the basis of a final report submitted by the police after due investigation. The crime in that case was registered, inter alia, under Sec.376 read with Sec.511 of the IPC. In the course of investigation, the Investigating Officer came to the conclusion that only the offence under Sec.354 of the IPC is made out and the allegation under Sec.376 read with Sec.511 of the IPC is not made out. Final report was filed alleging the offence punishable under Sec.354 of the IPC only. 2. Trial commenced. The victim – a child, was examined as a witness. At the end of the evidence of the victim/child/P.W.1, it appears that the learned A.P.P. submitted Crl.M.C. No.1111 of 2004 -: 2 :- that the evidence will attract the offence punishable under Sec.511 of the IPC and thereupon the learned Magistrate invoked the powers under the Cr.P.C. to alter the section of offence and took cognizance of the offence under Sec.376 read with Sec.511 IPC against the petitioner. The learned Magistrate directed that the case be committed to the Court of Session under Sec.323 of the Cr.P.C. The case has now been committed and a Sessions Case is registered, it is submitted. 3. The learned counsel for the petitioner submits that the learned Magistrate has erred grossly and gravely in having taken cognizance of the offence under Sec.376 read with Sec.511 of the IPC. Deposition of P.W.1 which alone is available to justify resort to the procedure under Sec.323 of the Cr.P.C. is made available to the court. I have gone through the deposition of P.W.1. The evidence of P.W.1 only shows that the accused had touched her breast, caught her at her abdomen and had attempted to lift her skirt. 4. I am in agreement with the learned counsel for the petitioner that the evidence recorded of P.W.1 does not justify the course resorted by the learned Magistrate of taking cognizance of the offence under Sec.376 read with Sec.511 of the IPC and of taking further action under Sec.323 of the Cr.P.C. Crl.M.C. No.1111 of 2004 -: 3 :- 5. Notice given to the learned Public Prosecutor. The learned Public Prosecutor, after going through the deposition, agrees that the deposition of P.W.1 does not justify the raising of an allegation under Sec.376 read with Sec.511 of the IPC. The case has been committed and the same is pending before the Sessions Court, Manjeri, as S.C.301/01. I am, in these circumstances, satisfied that this Crl.M.C. deserves to be allowed. 6. In the result, this Crl.M.C. is allowed. It is held that the invocation of the powers by the learned Magistrate to take cognizance of the offence under Sec.376 read with Sec.511 of the IPC is not justified. The action taken is set aside. The committal order is set aside. Trial shall now continue before the learned Magistrate. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No.1111 of 2004 -: 4 :-