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2020 DIGILAW 1047 (KER)

SIRAJ K. S/O LATE ABOOBACKER v. STATE OF KERALA

2020-12-09

ALEXANDER THOMAS

body2020
ORDER : 1. The 2nd respondent lady defacto complainant in these two cases is the same person and the alleged incidents in the impugned criminal proceedings in these two cases are also interrelated going by the version of the 2nd respondent lady defacto complainant in the FIS and the subsequent statements. Hence, these cases are disposed on the basis of this common order. 2. The prayer in the aforecaptioned Crl. M.C. No. 819/2020 filed under Section 482 of the Cr.P.C. is as follows: “Quash Annexure A-1 FIR against the Petitioner in Crime No. 223/2017 on the files of the Nilambur Police Station and Annexure A-2 Final Report (No. 306/2017) in C.P. No. 70/2017 (LP No. 14/2018) and Annexure A-3 Statement of the defacto complainant dated 14.05.2017, pending against the Accused/Petitioner on the files of the Hon'ble Judicial Magistrate of First Class, Nilambur and all further proceedings instituted in pursuant thereto, in the interest of justice and equity.” 3. The prayer in the aforecaptioned Crl. M.C. No. 3824/2020 filed under Section 482 of the Cr.P.C. is as follows: “Quash Annexure A-1 FIR against the Petitioner in Crime No. 224/2017 on the files of the Nilambur Police Station and Annexure A-2 Final Report (No. 297/2017) in C.P. No. 69/2017 (L.P. No. 26/2018) and Annexure A-3 Statement of the defacto complainant dated 14.05.2017 and 15.05.2017, pending against the Accused/Petitioner on the files of the Hon'ble Judicial Magistrate of First Class, Nilambur and all further proceedings instituted in pursuant thereto, in the interest of justice and equity.” 4. Heard Sri. K.P. Ramachandran, learned counsel appearing for the petitioner in each of these cases, Sri. B. Jayasurya, learned Public Prosecutor appearing for R-1 (State) in Crl. M.C. No. 819/2020 and Sri. Saigi Jacob Palatty, learned Public Prosecutor appearing for R-1 (State) in Crl. M.C. No. 3824/2020. Though notice to R-2 lady defacto complainant in both the cases has been duly served, the said party has not entered appearance. 5. The sole petitioner in Crl. M.C. No. 819/2020 has been arrayed as the sole accused in Anx.A-1 Crime No. 223/2017 of Nilambur Police Station, Malappuram District, for offences punishable under Sections 450, 376 and 506 of the IPC, on the basis of the FIS given by the 2nd respondent lady defacto complainant on 14.5.2017 at about 10.20 P.M. in respect of the alleged incidents which happened for the period from 1.1.2007 to 31.12.2009. The police after investigation has filed the impugned Anx.A-2 final report/charge sheet on 17.8.2017 in the abovesaid Anx.A-1 Crime No. 223/2017 of Nilambur Police Station, and the case is now pending as C.P. No. 70/2017 (L.P. No. 14/2018) on the file of the JFCM, Nilambur. Whereas, the sole petitioner in Crl. M.C. No. 3824/2020 has been arrayed as the sole accused in the instant Anx.A-1 FIR in Crime No. 224/2017 of the abovesaid Police Station, for offences punishable under Sections 450, 376 and 506 of the IPC, on the basis of the FIS given by the 2nd respondent lady defacto complainant on 14.5.2017 at about 11.10 P.M., in respect of the alleged incident which happened on 1.1.2009. The police after investigation has filed the impugned Anx.A-2 final report/charge sheet on 14.8.2017 in the abovesaid Anx.A-1 Crime No. 224/2017 of Nilambur Police Station, and the case is now pending as C.P. No. 69/2017 (L.P. No. 26/2018) on the file of the JFCM, Nilambur. 6. Various submissions have been made by both sides. One of the prime contentions urged by Sri. K.P. Ramachandran, learned counsel appearing for the petitioner in both these cases is that, there is long and inordinate delay in lodging of FIR in this case inasmuch as, the alleged incident is said to have taken place more than 10 years prior to the lodging of FIR. Further that, initially not even a specific day or month or year was mentioned about the alleged incident and later on, the 2nd respondent has come with a version stating that the incident has happened on 1.1.2009 in respect of Crime No. 224/2017 of Nilambur Police Station, which has now given rise to abovesaid Crl. M.C. No. 3824/2020. Further, the counsel for the petitioner would point out that, a reading of the FIS and other statements given by the lady defacto complainant in these cases would clearly indicate that wild and baseless allegations are raised about various sexual incidents in respect of not only these two petitioners, but also against quite a few other persons, without specifying any details. Further that, even if it is assumed for argument sake that the alleged sexual incidents narrated therein are broadly true, still then an intelligent between the lines reading of the statements of the 2nd respondent lady defacto complainant would give rise to the irresistible conclusion that, the said incident, if occurred, would have happened only on the basis of consent between two fully grown adults, and therefore the vital ingredients of the offence of rape as per Section 375 of the IPC which is punishable under Section 376 thereof, are not made out in these two cases. 7. Per contra, learned Prosecutors appearing in these two cases would oppose the said pleas and would point out that, the police has completed the investigation and has filed the final report/charge sheet and the case is now pending in committal proceedings and these aspects of the matter including the question of delay etc could be raised by the accused before the trial court in an appropriate manner known to law and that this Court may not quash the impugned criminal proceedings, etc. 8. The significance and importance of the issue regarding the delay in lodging of FIS has been subject matter of consideration of a catena of rulings of the Apex Court and various High Courts of the country. The Apex Court has held in decisions as in Thulia Kali vs. State of Tamil Nadu, AIR 1973 SC 501 : (1972) 3 SCC 393 , State of Andhra Pradesh vs. M. Madusudhan Rao, (2008) 15 SCC 582 etc. that the delay in lodging of FIR will more often than not, result in embellishments and exaggerations which are a creation of afterthought. Delayed report, not only gets bereft of the advantages of spontaneity, but the danger of introduction of coloured version, exaggerated account of incident or a concocted story as a result of deliberations and consultations also creeps in, casting a serious doubt on its veracity. Therefore, it has been held that it is highly essential that delay in lodging the FIR should be satisfactorily explained by the prosecution. Resultantly, when the substratum of evidence given by the complainant is found to be unreliable, the prosecution case has to be rejected in its entirety, etc. 9. Therefore, it has been held that it is highly essential that delay in lodging the FIR should be satisfactorily explained by the prosecution. Resultantly, when the substratum of evidence given by the complainant is found to be unreliable, the prosecution case has to be rejected in its entirety, etc. 9. It appears that the 2nd respondent lady defacto complainant has filed affidavit dated 1.10.2019 stating that she has voluntarily filed said affidavit and that she does not have any subsisting grievances in the matter etc. On being queried, the learned Prosecutor has submitted that after the pendency of the case, the investigating officer has recorded the statement of the 2nd respondent lady defacto complainant in respect of Crime No. 224/2017 of Nilambur Police Station, wherein she has stated that she is not interested to proceed further with the matter, etc. 10. This Court has heard both sides in extenso, and has also gone through the various pleadings and materials produced in this case more particularly, FIS and the other statements given by the 2nd respondent lady defacto complainant. After hearing both sides and after anxious consideration of the various aspects borne out from these matters, this Court is of the considered view that the matter would require further investigation at the hands of the investigating agency. It is well settled that matters relating to investigation would wall within the exclusive domain and province of the investigating agency. But, a heavier and onerous statutory duty is cast on the investigating officer concerned to fairly and efficiently conduct investigation so as to ferret out the truth of the matter. So also, it is well settled that the statutory duty ad obligation of the investigating police officer concerned is not merely to charge sheet the accused arrayed in the FIR at any cost, but to conduct detailed probe so as to unravel the truth of the matter. 11. Having regard to the various aspects of the matter this Court would refrain from examining the factual details in this case in the nature of the orders proposed to be passed in these petitions. Further, detailed examination of the matter by this Court at this stage may could be seen by one side or the other as prejudicial to them. Having regard to the various aspects of the matter this Court would refrain from examining the factual details in this case in the nature of the orders proposed to be passed in these petitions. Further, detailed examination of the matter by this Court at this stage may could be seen by one side or the other as prejudicial to them. Therefore, this Court is of the considered view that the proper and effective force to be adopted in this case is to direct the superior police authorities concerned to ensure the conduct of further investigation and to entrust the same to a competent officer. 12. It is brought to the notice of this Court that the investigation in these case was conducted by the SHO concerned, who is in the rank of Inspector of Police. Accordingly it is ordered that the District Police Chief, Malappuram, will ensure that further investigation in theses cases are ordered so as to entrust the same to an officer not below the rank of Deputy Superintendent of Police, and the District Police Chief, Malappuram, will entrust the further investigation of these two cases viz. Crime Nos. 223/2017 and 224/2017 of Nilambur Police Station, Malappuram District, to an officer not below the rank of Deputy Superintendent of Police, which may also be supervised and monitored by the District Police Chief concerned. 13. The new officer will immediately commence further investigation and may also ensure that statement of the 2nd respondent lady defacto complainant under Section 164 Cr.P.C. may be recorded before the learned Magistrate in these two cases separately and various other aspects of the matter may be probed in detail to find out the genuineness and veracity of the prosecution story. The new officer should complete the further investigation in this case and separately file final reports in these two cases without much delay preferably within a period of 3 months from the date of production of a certified copy of this order. Before filing of such supplementary final reports the investigating agency may also seek the advice of the prosecution agency concerned and may also take into consideration the impact of the long delay of more than 10 years in lodging the FIR and various other aspects and then may file the supplementary final reports in these two cases separately within the abovesaid time limit. 14. 14. The Secretary to the office of the Advocate General will forward certified copy of this order to the District Police Chief, Malappuram, for necessary information and further action. 15. All issues are left open to be raised and decided in appropriate proceedings in the manner known to law. 16. With these observations and directions and with the said liberty, the above Criminal Miscellaneous Cases will stand finally disposed of.