Sreenivasan, S/o. Kunhikrishnan v. State Of Kerala
2020-11-04
ALEXANDER THOMAS
body2020
DigiLaw.ai
ORDER : The prayer in the aforecaptioned Crl.M.C. filed under Sec. 482 of the Cr.P.C. is as follows : “... to call for the records of the case and quash Annexure-C charge sheet in Crime No.30/2015 of Mannancherry Police Station, Alappuzha which is now pending as SC No.728/2015 on the file of the Additional District and Sessions Court-I, (POCSO) Alappuzha, by allowing this Memorandum of Criminal Miscellaneous Case.” 2. Heard Sri.S.Shanavas Khan, learned counsel appearing for the petitioner and Sri.S.Sajju, learned Public Prosecutor appearing for respondent-State of Kerala. 3. The petitioner herein has been arrayed as the sole accused in the instant Crime No.30/2015 of Mannancherry Police Station, Alappuzha Police Station which has been initially registered for the offences punishable under Secs.354A(v) of the IPC, Sec.23 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and Secs. 7 r/w 8 of the Protection of Children from Sexual Offences Act, 2012. The police after investigation has filed the final report/charge sheet in this case which later led to the pendency of the sessions case SC No.728/2015 on the file of the 1st Addl.Sessions Court notified to deal with POCSO cases, Alappuzha. 4. The brief of the prosecution case is that the accused is a male aged more than 72 years with his criminal intention to quench his lust, had caught hold of the minor victim girl aged 11 years at 5.30 p.m. on 9.1.2015 on the road near the house of the accused, while she was walking along with her friend, who is also a minor girl. Later, on 11.1.2015 at about 1.30 p.m, the accused had clutched over her navel part of the victim, with sexual lust near the wash basin of the Sakthi Auditorium, Alappuzha while the victim was attending a wedding function along with her parents and thereby, the petitioner/accused had committed the abovesaid offences. 5. The sessions trial in this case has started before the 1st Addl.Sessions Court notified to deal with POCSO cases, Alappuzha and during the course of the trial, the evidence of CW1 and CW2 (minor victim girl) were recorded by the trial court. CW3 is stated to be a minor girl, who was the neighbour of the victim girl’s family and was with the victim girl at the time of the 1st incident and CW3 is the only occurrence witness in this case apart from the victim girl.
CW3 is stated to be a minor girl, who was the neighbour of the victim girl’s family and was with the victim girl at the time of the 1st incident and CW3 is the only occurrence witness in this case apart from the victim girl. Summons was issued to CW3 and the same was returned with an endorsement that the ‘addressee does not exist’. Thereupon, the special Public Prosecutor has sent a letter dated 23.1.2020 to the District Police Chief, Alappuzha (referred to in Annexure-A) requesting that further investigation is to be conducted so as to trace out the CW3, who is a vital witness inasmuch as she is the sole, independent, ocular witness apart from the victim girl and that further investigation may be necessary on certain other aspects as well. 6. Considering the said request made by the special Public Prosecutor, the District Police Chief, Alappuzha has issued Annexure-A proceedings dated 25.1.2020 ordering that further investigation in the abovesaid case be conducted by Dy.Superintendent of Police, Cherthala under Sec.173(8) Cr.P.C. with immediate effect and he was directed to take up further investigation of the case after obtaining leave from the court and to complete the further investigation expeditiously. In pursuance of Annexure-A order dated 25.1.2020, issued by the District Police Chief, the investigating officer concerned (Dy.Superintendent of Police, Cherthala) has submitted Annexure-B application dated 30.1.2020 before the sessions court concerned pointing out the aspects regarding the issuance of Annexure-A order by the District Police Chief for the conduct of further investigation and requesting that the further proceedings before the sessions court concerned be stopped to facilitate the further investigation. It appears that thereupon, the sessions court has stopped the conduct of the further trial in the matter so as to facilitate and await the outcome of the said further investigation.
It appears that thereupon, the sessions court has stopped the conduct of the further trial in the matter so as to facilitate and await the outcome of the said further investigation. Thereafter, the investigating officer has thereupon commenced and completed the further investigation and has submitted Annexure-C supplementary final report/supplementary charge sheet in the abovesaid case in SC No.728/2015 giving the details of the present correct address of CW3 stating that whereabouts of CW3 have been traced and also furnishing the present correct address of CW3 and also stating that further investigation has disclosed that the father of CW3, who was said to be present in the auditorium, where the wedding function had taken place had heard the conversation made by the victim girl with CW3 about the second incident. 7. Further, it is also brought out in Annexure-C supplementary final report that there is no dispute that the minor victim girl was below the age of 12 years at the time of the incident and therefore, based on the very same incident, the offence disclosed is not the one as per Sec.7, which is punishable under Sec.8 of the POCSO Act, but the one as per Secs.9(1) and 9(m), which is punishable under Sec.10 of the POCSO Act. Further, it is also stated in Annexure-C that the mentioning of the offence as per Sec.354A(v) of the IPC in the FIR as well as in the original final report was a mistake inasmuch as there is no clause (v) of Sec.354A of the IPC and therefore, the mentioning of such an offence based on a non-existing provision is a mistake and hence, the said provision as per Sec.354A(v) of the IPC was also deleted from the final report and in lieu thereof the offence as per Sec.354A(i) of the IPC was included. It is brought to the notice of this Court that the sessions court concerned has already accepted the impugned Annexure-C supplementary final report/supplementary charge sheet. 8. It is the abovesaid process of conduct of further investigation and submission of Annexure-C supplementary final report/supplementary charge sheet that is challenged by the petitioner/accused in this Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C. The matters raised in this petition are no longer res integra and are fully covered against the petitioner and in favour of the respondent-State by various decisions of the Apex Court and this Court.
In the case in Vinay Tyagi v.Irshad Ali @ Deepak and others [ (2013) 5 SCC 762 ], the Apex Court has held in para Nos.46-48 & 53 thereof that once a report under Sec.173(2) of the Code has been filed, it can be cancelled or proceeded further or case closed by a court of competent jurisdiction and that too, only in accordance with law and that neither the Police nor a specialized investigation agency has any right or power to cancel such a report filed under Sec.173(2) of the Cr.P.C. This the Apex Court has noted therein that in the said case that the High Court had not passed any order of staying further investigation by the Police or the proceedings before the competent court and on the contrary, the High Court had noticed explicitly in the impugned order that it was a case of further investigation and filing of supplementary report. Accordingly, it was held therein that once the court has taken such a view that there is no question of treating the first report has been withdrawn, cancelled or capable of being excluded from the records by implication. It was held therein that except by order of a higher court competent to make said order, the previous as well as the supplementary report shall form part of the records which a trial court is expected to consider for arriving at any appropriate conclusion in accordance with law. 9. Further, it has also been held by the Apex Court in Vinay Tyagi’s case (supra) [ (2013) 5 SCC 762 ] in para No.42 thereof that both the original final report and the supplementary final report will have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the court would be expected to apply its mind to determine whether there exists grounds to presume that the accused have committed the offence and if the answer is negative on the basis of those reports, the court could discharge an accused in compliance of the provisions contained in Article 227 of the Constitution of India. It will be profitable to refer to para No.42 and para No.60 of the judgment of the Apex Court in Vinay Tyagi’s case (supra) [ (2013) 5 SCC 762 ], b.797, 791 which reads as follows : “42.
It will be profitable to refer to para No.42 and para No.60 of the judgment of the Apex Court in Vinay Tyagi’s case (supra) [ (2013) 5 SCC 762 ], b.797, 791 which reads as follows : “42. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the Court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the Court shall discharge an accused in compliance with the provisions of Section 227 of the Code. 60. Once a Report under Section 173(2) of the Code has been filed, it can only be cancelled, proceeded further or case closed by the court of competent jurisdiction and that too in accordance with law. Neither the Police nor a specialised investigating agency has any right to cancel the said Report. Furthermore, in the present case, the High Court had passed no order or direction staying further investigation by the Delhi Police or proceedings before the court of competent jurisdiction. On the contrary, the court had noticed explicitly in its order that it was a case of supplementary or further investigation and filing of a ‘supplementary report'. Once the Court has taken this view, there is no question of treating the first report as being withdrawn, cancelled or capable of being excluded from the records by the implication. In fact, except by a specific order of a higher court competent to make said orders, the previous as well as supplementary report shall form part of the record which the trial court is expected to consider for arriving at any appropriate conclusion, in accordance with law. It is also interesting to note that the CBI itself understood the order of the court and conducted only ‘further investigation’ as is evident from the status report filed by the CBI before the High Court on 28th November, 2007.” 10. The issue relating to conduct of further investigation and that too, at the instance of the Public Prosecutor has been considered in detail by the Division Bench of this Court in the decision in Abdul Latheef and others v. State of Kerala [2014 KHC 3694] and it will be profitable to refer para Nos.
The issue relating to conduct of further investigation and that too, at the instance of the Public Prosecutor has been considered in detail by the Division Bench of this Court in the decision in Abdul Latheef and others v. State of Kerala [2014 KHC 3694] and it will be profitable to refer para Nos. 31 to 34 of the said decision, which reads as follows : “31. It follows that the Prosecutor has a duty to the State, to the accused, and to the court. The Public Prosecutor is at all times a minister of justice, though seldom so described. It is not the duty of the prosecuting counsel to secure a conviction, nor should any prosecutor even feel pride or satisfaction in the mere fact of success. 32. It seems that the Prosecutor should always form an independent opinion regarding the sufficiency of the investigation. In case he notices any serious lapse on the part of the investigating officer or he feels that for the ends of justice the investigation ought to have collected some more evidence on any particular aspect, it cannot be said that the Public Prosecutor is helpless and should remain as a mute spectator by swallowing all what was done by the investigating officer. In such cases, the Public Prosecutor can bring that fact to the notice of the concerned court for satisfying the court regarding the necessity to invoke the powers conferred on the court under Section 173(8) Cr.P.C.. All procedural laws are meant to advance justice and not to stifle the ends of justice. Where the court finds that the matter requires further investigation in view of the partisan attitude of the police, or that the investigating agency had committed mistakes on account of ignorance or otherwise, the court can direct the investigating agency to conduct further investigation in the case under Section 173(8) Cr.P.C. The act of the court in giving such a direction cannot be construed as an act of the court in interfering with the jurisdiction of the investigating agency to investigate further in the matter. The act of the court in directing the investigating agency to conduct further investigation under Section 173(8) Cr.P.C. is nothing but directing the investigating agency to exercise the jurisdiction conferred on them under Section 173(8) Cr.P.C. 33.
The act of the court in directing the investigating agency to conduct further investigation under Section 173(8) Cr.P.C. is nothing but directing the investigating agency to exercise the jurisdiction conferred on them under Section 173(8) Cr.P.C. 33. When it is found that the question of locus standi of a person to set the criminal law into motion is totally alien to the criminal jurisprudence, in fact, a threadbare examination of the locus standi of a Public Prosecutor to point out to the court that there are some serious lapses in the investigation or the investigation ought to have proceeded with further for the ends of justice, is not a much debatable issue. At the same time, it is true that a Prosecutor cannot assume the role of either the complainant or the accused. The Prosecutor is an officer of the court and his duty is mainly to assist the court to trace out the truth and to uphold the ends of justice. 34. From all the above, it can safely be concluded that when the court has the power to direct the investigating agency to conduct further investigation under Section 173(8) Cr.P.C. in a matter even after taking cognizance on the final report filed by the investigating agency before it under Section 173(2) Cr.P.C., either the de facto complainant, who is aggrieved on account of any lapse committed by the investigating agency in conducting the investigation or in not conducting the investigation in another line to which it ought to have been conducted, or the Public Prosecutor who notices serious lapse committed by the investigating agency in not conducting the investigation properly, can invite the attention of the court through an application for satisfying the court in respect of the necessity to invoke the power of the court under Section 173(8) Cr.P.C.. Even without any such wake up call, the court on its own can invoke its power under Section 173(8) Cr.P.C.” 11.
Even without any such wake up call, the court on its own can invoke its power under Section 173(8) Cr.P.C.” 11. Hence, in discharge of the Prosecutor’s duties and functions, the Prosecutor is certainly well within his competency and powers to make a request as the one referred to in Annexure-A which led to the order of the investigating Police for the conduct of the further investigation as per Annexure-A and which later led to the submission of Annexure-B application on the basis of which the court had stopped the further trial proceedings in this case to facilitate the conduct of the impugned further investigation in this case. 12. Now, coming back to the facts of this case, the following aspects could be relevant. The investigation in this case was already completed and final report/charge sheet was originally filed for the offences as per Sec.354A(v) of the IPC, Sec.23 of the JJ Act and Secs. 7 and 8 of the POCSO Act. According to the prosecution, CW3 is the main, independent, ocular witness to the first incident apart from the minor victim. When summons was served to CW3 after the examination of CWs1 and 2, the prosecution had taken steps for service of summons on CW3. Thereupon, the summons was returned with the endorsement that such an addressee does not exist. This alerted the Public Prosecutor, who after due consideration had opined to the District Police Chief that a further investigation may be conducted by a competent officer, primarily to trace out the whereabouts of CW3, who is a very important witness in this case as otherwise, the prosecution would be detrimentally affected and that certain other aspects of the matter may also then be the subject matter of the further investigation that may be conducted. After the issuance of Annexure-A order and after securing orders of the sessions court concerned on Annexure-B application for stopping of the trial to facilitate further investigation, the officer of the rank of Dy.Superintendent of Police has conducted the further investigation and the further investigation has disclosed the correct present whereabouts of CW3. 13. According to the investigating officer, he could also find out certain other aspects from the father of CW3 that as a matter of fact that after the wedding, he could hear CW2 (victim) telling CW3 about the second incident in relation to the alleged involvement of the petitioner/accused.
13. According to the investigating officer, he could also find out certain other aspects from the father of CW3 that as a matter of fact that after the wedding, he could hear CW2 (victim) telling CW3 about the second incident in relation to the alleged involvement of the petitioner/accused. The conduct of further investigation for the purpose of tracing out the correct whereabouts of an important witness in respect of whom, the summons was returned with the endorsement that the addressee does not exist cannot be faulted in any view of the matter. If on the other hand, if steps have not been taken to find out the correct whereabouts, then certainly even courts could have blamed the prosecution for committing such elementary, but serious mistakes and omissions. 14. After hearing both sides, this Court is of the view that even without the conduct of the further investigation, the investigating agency could have taken their own bonafide steps to find out the correct whereabouts of the CW3 and then intimate the sessions court that the summons is to be served in such corrected address. By way of abundant caution, the special Prosecutor and the investigating agency has taken the step of conduct of further investigation in order to ensure that meticulous care is bestowed upon that aspect of the matter. In the course of further investigation, the investigating agency would say that they could also find out from the father of CW3 that after the wedding, he could hear the conversation made by CW2 (victim) telling CW3 about the said alleged incident involving the petitioner/accused. 15. That aspect of the matter is also highlighted in the impugned Annexure-C supplementary final report. Such a stand of the investigating agency that they have collected that material by itself cannot be said to be illegal and unlawful. The correctness or otherwise of the aspects flowing therefrom is a matter of evidence to be carefully assessed and evaluated by the trial court concerned if the prosecution is bringing in evidence in that regard. In the absence of such additional material in the impugned Annexure-C additional final report, the prosecution may have been fettered in bringing in any prosecution evidence regarding the said aspect.
In the absence of such additional material in the impugned Annexure-C additional final report, the prosecution may have been fettered in bringing in any prosecution evidence regarding the said aspect. Therefore, the said aspect mentioned in Annexure-C supplementary final report regarding the role of the father of CW3, cannot be a matter that is liable for interdiction at the hands of this Court under Sec. 482 of the Cr.P.C. 16. Now, coming to the further aspects of the case, it is to be noted that there is no dispute that the essence of the prosecution case even for the commencement of the FIR was to the effect that the minor victim girl had not completed the age of 12 years at the time of the alleged incidents in question. Sec.7 of the POCSO Act deals with sexual assault which is punishable under Sec.8 thereof. Secs. 7 and 8 of the POCSO Act reads as follows : “Sec. 7 .Sexual assault: Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” Sec.8. Punishment for sexual assault : “Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.” Sec.9(l) of the POCSO Act reads as follows : “whoever commits sexual assault on the child more than once or repeatedly; or” Sec.9(m) reads as follows : “whoever commits sexual assault on a child below twelve years; or” are said to commit aggravated sexual assault. Sec.10 of the POCSO Act reads as follows : “Punishment for aggravated sexual assault :Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.” 17.
Sec.10 of the POCSO Act reads as follows : “Punishment for aggravated sexual assault :Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.” 17. The main two incidents related to the sexual assaults narrated in the original final report and the impugned Annexure-C supplementary final report are broadly the same, inasmuch as the victim girl was then below the age of 12 years and that in the first incident, the accused had caught hold of her with sexual intent. In relation to the second incident, the allegation is that the accused with sexual intent had caught hold of her at navel part. Therefore, both in the original final report and the supplementary report, the allegation is that the accused has committed sexual assault on the minor victim girl, who had not completed the age of 12 years then, on two separate occasions. 18. Going by the provision made in Sec.9(l) of the POCSO Act, if the sexual assault is made by the accused on a child more than once or repeatedly, then an offence which may satisfy the requirement of offence of sexual assault which may otherwise come within the ambit of Sec.7 would then satisfy the requirement of aggravated sexual assault as defined in Sec.9. So also if the sexual assault is made by the accused on a child, who was below the age of 12 years at the time of the incident, then an incident of sexual assault which may otherwise come within the ambit of Sec.7, will then be brought within the definition of the aggravated sexual assault in terms of Sec.9. Of course, the punishment for an aggravated sexual assault as stipulated in Sec.10 of the POCSO Act is more than that is stipulated for an offence of sexual assault which is punishable in terms of Sec.8 thereof. 19. The factual incidents relating to the sexual assault narrated in both the original final report and the impugned Annexure-C supplementary final report does not in any manner substantially differ.
19. The factual incidents relating to the sexual assault narrated in both the original final report and the impugned Annexure-C supplementary final report does not in any manner substantially differ. Therefore, Sri.S.Sajju, learned Prosecutor is right in contending that the investigating agency should have actually included the offences as per Sec.9(l) and 9(m) of the POCSO Act, which is punishable in terms of Sec.10 thereof in the original final report itself in lieu of Secs.7 and 8 of the POCSO Act, even going by the admitted version of the prosecution in the original final report and that the omission to mention the offence as per Secs.9 and 10 of the POCSO Act in the original final report was a mistake and what is sought to be done by the submission of the impugned Annexure-C supplementary final report in that regard is only the rectification of that mistake or omission. 20. The counsel for the petitioner/accused has raised a contention that the punishment for the aggravated sexual assault in terms of Sec.10 is much more graver compared to the punishment envisaged in Sec.8 of the POCSO Act and therefore, the petitioner could be prejudiced on that account. Since, the factual allegations does not materially differ in relation to allegations of the sexual assault in the first incident and the second incident, the prosecution cannot be prevented from taking recourse to the said step in ensuring that the offences as per Secs.9(l) and 9(m) of the POCSO Act, which are punishable in terms of Sec.10 thereof is put in lieu of the offence as per Sec.7 which is punishable under Sec.8 thereof in the prosecution materials. That apart going by the dictum laid down by the Apex Court and various High Courts including this Court regarding the powers of the investigating agency for conduct of further investigation and submission of additional or supplementary final report in terms of Sec.173(8) of the Cr.P.C. if even vital new factual aspects are found out in the course of further investigation, which could not be earlier detected. The powers of the investigating agency for submission of such supplementary final report cannot be fettered or controlled as investigation is a matter which would come within the domain of the investigating agency. 21. It is also beyond any dispute that there is no provisions as per Sec.354A(v) in the IPC and inclusion of that provision was a mistake.
The powers of the investigating agency for submission of such supplementary final report cannot be fettered or controlled as investigation is a matter which would come within the domain of the investigating agency. 21. It is also beyond any dispute that there is no provisions as per Sec.354A(v) in the IPC and inclusion of that provision was a mistake. Sec.354A(i) reads as follows : (i) “Physical contact and advances involving unwelcome and explicit sexual overtures; or” 22. There is no dispute that the allegations in the original final report discloses the offence as per Sec.354A(i). Hence, the investigating agency cannot be faulted to delete Sec.354A(v) of the IPC as it is a non existing provision and to include in lieu thereof, the offence as per Sec.354A(i) of the IPC. 23. Hence, in the light of these aspects, the sessions court cannot be found fault with for having accepted the abovesaid impugned Annexure-C supplementary final report/supplementary charge sheet. However, one cardinal submission made by Sri.S.Shanavas Khan, learned counsel for the petitioner would deserve acceptance at the hands of this Court. Investigating agency has stated in the last paragraph of the impugned Annexure-C supplementary final report given on internal page 10 thereof that the original final report/charge sheet may be rejected by the sessions court and that Annexure-C supplementary final report may be accepted on file and further that, initial Sec.161 Cr.P.C. statement given by CW3 which forms part of the original final report may also be rejected and in lieu thereof, fresh/additional statement under Sec.161 Cr.P.C. given by CW3 in the course of the further investigation is to be accepted on file etc. The last paragraph of Annexure-C supplementary final report given on page 10 thereof reads as follows : XXX XXX 24. In the light of the well settled legal position in that regard, especially the decision of the Apex Court in Vinay Tyagi’s case (supra) [ (2013) 5 SCC 762 ] para No.42, the said stand of the investigating agency in the last para of Annexure-3 is legally wrong and faulty and would deserve interdiction. Accordingly, it is declared that the said stand of the investigating agency in the last para.
Accordingly, it is declared that the said stand of the investigating agency in the last para. of the impugned Annexure-C supplementary final report is illegal and ultravires and that as held by the Apex Court in para No.42 of Vinay Tyagi’s case (supra) [ (2013) 5 SCC 762 ], both the reports will have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the court should take into consideration and apply its mind etc. 25. In other words, the initial statement given by CW3 which forms part of the original final report as well as the further statement given by CW3 which forms part of the impugned Annexure-C supplementary final report will have to be conjointly taken into account as held by the Apex Court in para No.42 of the Vinay Tyagi’s case (supra) [ (2013) 5 SCC 762 ]. This Court need not get into further aspects of the matter in that regard as the matter is pending trial. 26. As regards the submission made by the petitioner regarding the alleged prejudice that may be caused by the incorporating the offence as per Sec. 9(l) and 9(m) of the POCSO Act, which is punishable under Sec.10 thereof, the following aspects may have to be borne in mind. The operative portion of Sec.215 of the Cr.P.C. reads as follows : “Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.” 27. The illustrations given thereunder have not been mentioned hereinabove. Sec.216 of the Cr.P.C. deals with the scenarios where the court may alter charge and it reads as follows : “Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused.
Sec.216 of the Cr.P.C. deals with the scenarios where the court may alter charge and it reads as follows : “Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.” 28. Sec.221 of the Cr.P.C. deals with the scenarios where it is doubtful as to what offence has been committed and the same reads as follows : “Where it is doubtful what offence has been committed – (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.” 29. Sec.460 of the Cr.P.C. deals with irregularities which do not vitiate proceedings and Sec.461 deals with irregularities which vitiate proceedings. Sec. 464 of the Cr.P.C. deals with the effect of omission to frame charge or absence of or error in charge etc. 30. Both sides have made certain submissions with reference to abovesaid provisions. Since the matter is now pending trial, it may not be right and proper for this Court to enter into those aspects of the matter. However, this Court would only observe that in view of the abovesaid submission made by the petitioner/accused about the alleged prejudice that may be caused to him by the incorporation of the offences as per Secs.9(l) and 9(m), which is punishable under Sec.10 of the POCSO Act, that the sessions court after hearing both the accused and the prosecution may consider as to whether the resort may be made for alteration and addition of charges as envisaged in Sec.216 of the Cr.P.C. This the Court would only observe as it is brought to notice of this Court that after the filing of the original final report, the Court had framed the charges only for the offences mentioned in the original final report and that as of now, though the impugned Annexure-C supplementary final report/supplementary charge sheet has been accepted by the sessions court concerned, the said court has not so far taken any decision as to whether charges are to be altered or added as envisaged in Sec.216 of the Cr.P.C. 31. This Court is only making an observation in that regard and it is entirely within the domain and discretion of the sessions court and it is for that Court to bestow its serious consideration of such matters. 32. Hence, no further directions or orders in that regard are called for at the hands of this Court, especially as the trial in this case has not been completed.
32. Hence, no further directions or orders in that regard are called for at the hands of this Court, especially as the trial in this case has not been completed. Sri.S.Shanavas Khan, learned counsel appearing for the petitioner/accused would submit that CWs 1 and 2 have been examined before the submission of the impugned Annexure-C supplementary final report and that therefore, directions may be issued by this Court to the session court concerned to enable the petitioner/accused to recall CWs 1 and 2 in the light of the materials that may be now available in terms of the impugned Annexure-C supplementary final report. 33. The learned Prosecutor has rightly submitted that this Court may not enter into those aspects, when the matter is pending trial and that it is for the petitioner to make such plea by filing appropriate application before the sessions court at the appropriate time and it is for the session court concerned to take a decision in that regard. 34. After hearing both sides, this Court would only hold that the said submission made by the learned Prosecutor is right and proper and if the petitioner wants to advance any such plea, it is for him to raise such plea by filing appropriate application before the sessions court concerned at the appropriate time, it is for the said court to take a call on those issues and any orders or directions passed by this Court at this stage would be premature as admittedly, the petitioner has not made any such plea before the session court concerned. 35. It is made clear that the abovesaid observations and findings have to be made by this Court as the petitioner has challenged the acceptance of Annexure-C final report/charge sheet and the said findings and observations made by this Court are only made from the limited perspective as to the correctness of the acceptance of the said supplementary final report by the sessions court concerned. 36. Accordingly, the following orders and directions are issued : - (i) The main prayer in this petition for quashment of Annexure-C supplementary final report cannot be granted. However, it is ordered that the last paragraph in Annexure-C supplementary final report is illegal and ultravires.
36. Accordingly, the following orders and directions are issued : - (i) The main prayer in this petition for quashment of Annexure-C supplementary final report cannot be granted. However, it is ordered that the last paragraph in Annexure-C supplementary final report is illegal and ultravires. Both the original final report and the supplementary final report will have to be read conjointly and it is the cumulative effect of both these reports and the documents annexed thereto, that the Court shall take into consideration and apply its judicial mind. (ii) The sessions court may consider whether resort to its discretionary powers under Sec.216 of the Cr.P.C. for alteration and addition of charges is necessary and called for in the facts and circumstances of this case, after hearing the prosecution and the accused. (iii) In case the accused files application for recall CW1 & CW2/PW1 & PW2 for further examination in the light of the additional materials that may be available pursuant to Annexure-C supplementary final report, then the sessions court may pass appropriate orders therein, after hearing the accused and the prosecution. In the light of these aspects, the prayers of the petitioner cannot be granted. Accordingly, the above Criminal Miscellaneous petition will stand disposed of.