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2024 DIGILAW 276 (GUJ)

State Of Gujarat v. Mohanbhai Mathurbhai Kanjaria

2024-02-09

M.K.THAKKER

body2024
JUDGMENT : 1. This appeal is filed by the State under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C. referred hereinafter) challenging the judgment and order of acquittal dated 11.12.2015 passed by the learned Additional Sessions Court, Jamnagar in Special (POCSO) Case No.7 of 2014. 2. It is the case of the prosecution that the complaint came to be lodged before the Kalyanpur Police Station on 01.10.2013 by the father of the prosecutrix, who is aged 10 years studying in standard 4 at Juvanpur Kanya Shala, alleging that his daughter, during recess hours of school came for the lunch at around 1’O Clock on 30.09.2013 and left for school on completion of lunch around 01:45p.m., she came back to the home and was shouting when reason was asked about returning to home by the grandmother, she disclosed that Mohanbhai Mathurbhai Kanjaria, who is staying on opposite side of the house of the prosecutrix had taken her into the courtyard of his house by asking her that he would give her Rs.20 and thereafter had started molesting her, when she shouted, she was allowed to go back to her house. With the aforesaid allegation the complaint came to be filed under Section 354 of the Indian Penal Code and Section 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. 3. On filing this complaint, the accused came to be arrested on 02.10.2013 and was sent to the judicial custody. Thereafter, the accused was released on granting the bail by the competent court. At the end of the investigation, the report was submitted on 19.02.2013 before the Competent Court and the same was numbered as Special (POCSO) Case No.7 of 2014. 4. On being appeared by the respondent-accused, charge was framed below Exhibit 5 and plea came to be recorded below Exhibit 6 wherein the respondent-accused pleaded not guilty and claimed to be tried. To prove the case against the accused, the prosecution examined following witness and placed documentary evidences, which are mentioned hereinbelow. Oral Evidence Sr No. Particular Exhibit Nos. 1 P.W 1 Chandubhai Parmar 7 2 P.W.2 Jamanbhai R. Dabhi 12 3 P.W.3 Kamalben R. Dabhi 14 4 P.W.4 Kantaben (Prosecutrix) 15 5 P.W.5 Puriben Karawadara 17 6 P.W.6 Mukeshbhai M. Gadhvi 19 7 P.W.7 Ankurkumar D. Suthar 20 Documentary Evidence: Sr No. Particular Exhibit Nos. Oral Evidence Sr No. Particular Exhibit Nos. 1 P.W 1 Chandubhai Parmar 7 2 P.W.2 Jamanbhai R. Dabhi 12 3 P.W.3 Kamalben R. Dabhi 14 4 P.W.4 Kantaben (Prosecutrix) 15 5 P.W.5 Puriben Karawadara 17 6 P.W.6 Mukeshbhai M. Gadhvi 19 7 P.W.7 Ankurkumar D. Suthar 20 Documentary Evidence: Sr No. Particular Exhibit Nos. 1 Panchnama of the place of offence 8 2 Original complaint 13 3 Lodgment of the station diary 18 4 List of entry made for arresting the accused 21 5 List of addition of section 22 6 Birth certificate of the prosecutrix of Juvanpur Kanya Shala 23 7 Copy of the Aadhar Card 24 8 Copy of the FIR being II-C.R.No.124 of 2013 25 5. On filing the closing pursis by the prosecution, statement under Section 313 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) came to be recorded wherein the accused had pleaded innocent and false implication in the offence. That after considering the evidence placed on record and arguments advanced by the learned advocates for the respective parties, the trial Court has passed the judgment and order of acquittal, which is impugned before this Court. 6. Heard the learned APP Ms.Monali Bhatt for the appellant-State and learned advocate Mr.Jatin Yadav for respondent-accused. 7. Learned APP Ms.Monali Bhatt submits that though the prosecution has proved the case beyond reasonable doubt, learned trial Court acquitted the respondent-accused from the charges without giving proper weightage to the evidence of material witness. Learned APP Ms.Bhatt submits that learned trial Court has given more weightage to the cross FIR, which is produced at Exhibit 25, it comes on record from the FIR by the respondent-accused against the complainant that, after disclosing the offence to the parents, the complainant called the accused and after being reprimanded, he was assaulted by stick. Learned APP Ms.Bhatt submits that this would be the natural reaction being the father of the prosecutrix, who was molested by the respondent-accused, without taking the said reaction as a natural conduct, the learned trial Court has appreciated adversely and the impugned judgment and order was passed. 7.1. Learned APP Ms.Bhatt further submits that by acquitting the respondent-accused from the charges, it was observed by the learned trial Court that there was no any independent witnesses, whose evidence was recorded during trial, though they were available looking to the vicinity of the place. 7.1. Learned APP Ms.Bhatt further submits that by acquitting the respondent-accused from the charges, it was observed by the learned trial Court that there was no any independent witnesses, whose evidence was recorded during trial, though they were available looking to the vicinity of the place. Learned APP Ms.Bhatt submits that the alleged offence was committed during noon hours and therefore, there would be less chance to have the presence of the independent person though the area which is mentioned in the panchnama is surrounded by the market. 7.2. Learned APP Ms.Bhatt submits that in fact the version of the prosecutrix was supported by the other evidence, wherein it comes on record that recess hours mentioned is around 1’O Clock and when she was returning to the school after taking lunch, she was molested and she returned back to the house around 2’O Clock. Learned APP Ms.Bhatt further submits that much weightage was given by the learned trial Court to the discrepancies with regard to that whether she was taken to the house by the respondent-accused by holding her hand or after she was taken to the home her hand was caught. 7.3. Learned APP Ms.Bhatt submits that the age of the prosecutrix was 10 years only therefore, instead of giving importance to this minor discrepancy, learned trial Court could have considered the overall evidence and could have convicted the respondent-accused from the charges. Learned APP Ms.Bhatt further submits that the evidence of the prosecutrix was corroborated with the evidence of the grandmother, who partially supported the case of the prosecution and without considering the same the judgment and ordered of the acquittal was passed. 7.4. Learned APP Ms.Bhatt further submits that though there was no any animosity prior to the incident was established by the defence. Learned trial Court had committed an error in acquitting the respondent-accused and therefore, the same is required to be interfered with and the respondent-accused is required to be convicted and order is required to be passed to undergo sentence accordingly. 8. On the other hand, learned advocate Mr.Jatin Yadav on behalf of learned advocate Mr.P.P.Majmudar submits that the case of the prosecution was not supported by the father of the prosecutrix and he turn to be hostiled therefore, the learned trial court has rightly acquitted the respondent-accused in absence of the reliable evidence on record. 8. On the other hand, learned advocate Mr.Jatin Yadav on behalf of learned advocate Mr.P.P.Majmudar submits that the case of the prosecution was not supported by the father of the prosecutrix and he turn to be hostiled therefore, the learned trial court has rightly acquitted the respondent-accused in absence of the reliable evidence on record. Learned advocate Mr.Yadav further submits that conduct of the victim itself falsifies the case of the prosecutrix as it is testified in her in evidence that soon after the incident, she went to the school and she did not disclose the incident to any one except the grandmother. 8.1. Learned advocate Mr.Yadav submits that considering the tender age of the girl, it would be impossible for the prosecutrix to go to the school after the offence and do her routine work. Learned advocate Mr.Yadav further submits that in her testimony it comes on record that, she used to go to the school with her friends and on the day of the incident, after taking the lunch, she was accompanied by her friends, however, the prosecution did not examine any of the witness, who support the case of the prosecution and therefore, the learned trial Court has rightly not believed the case of the prosecution and acquitted the respondent-accused. 8.2. Learned advocate Mr.Yadav further submits that in the evidence recorded before the learned trial Court, the prosecutrix admitted the animosity with the respondent-accused of the father and therefore, evidence of the prosecutrix was rightly discarded by the learned trial Court and acquitted the respondent-accused from the charges. Learned advocate Mr.Yadav submits that there was no evidence, which inspires confidence as there were many contradictions which came on record and therefore, the learned trial Court has justified in passing the judgment and order of the acquittal. 8.3. At last, the learned advocate Mr.Yadav relies upon the judgment rendered by the Apex Court in case of Chandrappa v. State of Karnataka, reported in 2007 4 SCC 415 wherein the Apex Court has held that presumption of the innocence would double in the event of acquittal of the respondent-accused and therefore, unless the judgment found to have been perverse and without giving the proper weightage to the evidence, the appellate court would slow in reversing the acquittal into the conviction. By submitting the same, learned advocate Mr.Yadav prays to dismiss the appeal and to confirm the judgment and order of the acquittal. 9. Considering the submissions and the evidence of the prosecution, following facts are emerged from the record: 9.1. It is the case of the complainant that in his complaint, which is filed on 01.10.2013 around 17:30 hours before the Kalyanpur Police Station, District Devbhumi Dwarka being IC. R.No.98 of 2013 for the offence punishable under Section 354 of the Indian Penal Code was made. In the said FIR, time of offence is disclosed around 13:45 hours on 30.09.2013. On being chargesheeted, the charge was framed against respondent-accused by the learned trial Court below Exhibit 5 wherein along with charge for the offence under Section 354A of the Indian Penal code charge of Section 12 of the POCSO Act was also framed. The prosecution tried to prove the case by examining the witness namely Jamanbhai Dabhi below Exhibit 12, who is the complainant and father of the prosecutrix. This witness was declared hostile as he did not support the case of the prosecution. In the cross examination conducted by the learned APP, there was no incriminating material which the prosecution could have established. 9.2. The next witness, who is examined by the prosecution is grandmother of the prosecutrix, namely, Komalben Ramanbhai Dabhi aged 60 years below Exhibit 14 as a PW 3. In the examination in chief before the learned trial Court, she deposed that the prosecutrix is her granddaughter, she is studying in the school situated in the village, her school hours starts at 10:30 and during recess around 01:00 hour she used to come to the house to take lunch. Prior to two years, when she returned after taking lunch, she came back again and started crying and informed that the accused by holding her hand took her into the house. However, after she was taken to the house what has been actually happened was not disclosed by this witness and therefore, this witness was declared hostile. In the cross examination which was made by the learned APP she admitted that on being asked to the prosecutrix, she started crying and stated that Mohanbhai Mathurbhai who is staying opposite side of the house tried to remove her cloths however, when she shouted and ran away from his house. 9.3. In the cross examination which was made by the learned APP she admitted that on being asked to the prosecutrix, she started crying and stated that Mohanbhai Mathurbhai who is staying opposite side of the house tried to remove her cloths however, when she shouted and ran away from his house. 9.3. The prosecution further examined PW 4, prosecutrix aged 10 years. In the evidence recorded by the learned trial Court, she support the case of prosecution and stated that I reside with my family at Juvanpur and I study in Standard in Kanyashala, Juvanpur. We are three brothers and sisters, wherein Sanjay is the eldest, Jayesh is younger to Sanjay and I am the youngest. I go to school at 1030 hours in the morning and school recess time is at 100 hours and school gets over at 500 hours in the evening. I go to my house during recess time. When I was going to school after taking lunch at home in the afternoon, she stated pointing towards the accused Mohan present in the Court today that he took me home by holding my hand and told me, “Don’t tell anyone. I will give you Rs.20/”. When he was taking out my clothes in his house, I shouted and thus, he left my hand and thereafter I ran and came to my home. My grandmother was at home at that time. I told my grandmother regarding this incident. When my father returned home in the evening, I told him in this regard. The Police recorded my statement in this regard. 9.3.1. In the cross examination following admissions were made by her. (1) It is true that my grandmother resides with us. It is true that I went to school after taking my lunch during recess time. I returned home from the school in the evening. It is true that house of Mohan can be peeped into from my house. It is true that there is a bazaar and a road between the house of Mohan and mine. It is true that the persons passing by the road can peep into the house of Mohan from the road. It is true that four to five girls commute to school together from my house. It is true that four to five girls come home during recess time and go back to school thereafter. It is true that the persons passing by the road can peep into the house of Mohan from the road. It is true that four to five girls commute to school together from my house. It is true that four to five girls come home during recess time and go back to school thereafter. It is true that on the day of the incident, two to three girls came home together during recess time and went back to school together after taking their lunch. (2) It is true that the police recorded my statement in the Police Station. It is not true that the police wrote my statement by their own. It is true that nobody took me to the Court to record my statement. It is true that if anyone shouts in the room of Mohanbhai, it can be heard on the road. It is true that I have not informed anyone on the road regarding the incident. It is true that when I went to school after recess time, I did not apprise anyone regarding this incident. It is not true that the police recorded my statement on the day of the incident. The witness states that the police recorded my statement on the next day of the incident. It is true that the accused Mohanbhai Mathurbhai has lodged complaint against my father. It is not true that I falsely state that the accused caught my hand. It is not true that the accused has not told me of giving Twenty Rupees. It is not true that I did not inform my grandmother in this regard. It is true that there is dispute between my father and the accused. It is not true that I falsely depose. It is not true that I do not study. 9.4. The next witness which was examined by the prosecution, namely, Puriben, who is serving as a PSO at Kalyanpur Police Station, District Devbhumi Dwarka. The FIR was exhibited from the evidence of this witness. The further statement of the prosecutrix was recorded by the PSI on 05.10.2023. On being crossexamined by the accused, she admits that for lodging the complaint father of the prosecutrix, namely, Jamanbhai Dabhi came. On being orally instructed the complaint was lodged. The statement of the prosecutrix was recorded after three to six days and she went along with PSI for recording the same. On being crossexamined by the accused, she admits that for lodging the complaint father of the prosecutrix, namely, Jamanbhai Dabhi came. On being orally instructed the complaint was lodged. The statement of the prosecutrix was recorded after three to six days and she went along with PSI for recording the same. There was no statement recorded under Section 164 of the Cr.P.C. before the learned Magistrate in her presence. Distance from Kalyanpur to Juvanpur is 30 Kilometers. 9.5. The next witness, who was examined by the prosecution is the Investigating Officer, namely, Mukeshbhai Gadhvi below Exhibit 19, PW6. In the deposition of this witness, he deposed that the panchnama of place of offence was drawn on 02.10.2013 in presence of panch witness. In the cross examination, it is admitted by this witness that the house of the complainant and the accused is opposite to each other. The house is surrounded by the residential premises. There is a way between the house of the complainant and the accused, which goes through Gadka Sidhsara village. In this way, availability of local people of the village people is there. Near the house of the complainant and the accused, there is a one shop of pan soda. On the back side of the house, there is a temple of Ramdevji Maharaj. From the house of the complainant the accused can be seen easily if the door is open. During the investigation, statement of the family members were recorded. He came to know that the cross FIR is lodged by the accused. 9.6. The another witness, who was examined by the prosecution, namely, Ankurkumar Damodardas Suthar, PW7 Exhibit 20, who had taken charge from the earlier Investigating Officer and recorded the statement of the prosecutrix in the presence of woman Head Constable on 02.10.2013. The prosecutrix had disclosed the offence in her statement, chargesheet came to be filed by this witness after adding the offence under Section 12 of the POCSO Act. The birth certificate, which was provided by the Principal, Juvanpur Primary School was exhibited below Exhibit 23 through the evidence of this witness. FIR being IIC. R.No.124 of 2013 which was registered against the complainant by the accused was produced through the evidence of this witness below Exhibit 25. The birth certificate, which was provided by the Principal, Juvanpur Primary School was exhibited below Exhibit 23 through the evidence of this witness. FIR being IIC. R.No.124 of 2013 which was registered against the complainant by the accused was produced through the evidence of this witness below Exhibit 25. In the cross examination, following admissions were made by this witness: (1) There was no statement recorded of independent person with regard to the offence. No muddamal was seized during the investigation. Residential house of the complainant and the accused is opposite to each other. If one shout from the courtyard of the accused that can be heard in the house of the complainant, distance of the house is not that much. There is one way passing through the house of the accused and the complainant from Juvanpur to Sidhasara village. There was no any separate statement which was recorded explaining the delay in lodging the FIR. 9.7. The prosecution has also examined the panch witness, namely, Chandubhai Bhimabhai Parmar, Exhibit 7, who is the panch witness of place of panchnama offence. In the chief examination, he supported the case of the prosecution, however, in the cross examination, he admits that when the panchnama was drawn he was standing of the house. Out side of the house of the accused, there is a market where there would be availability of the village people. After drawing the panchnama when he was asked to sign he made signature on the same. 10. Now if all the evidences as discussed earlier are considered together then it transpires from the record that case of the prosecution was partially supported by the grandmother and the prosecutrix. These are the two witnesses, who can be said to be a star witnesses. So far as the evidence of the grandmother as discussed earlier in the chief examination with regard to the main part, she declared hostile, however in the cross examination, she admits about the disclosure of the offence by the prosecutrix. The testimony of the prosecutrix suggests that during the recess, she used to have the company of two-three girls and on the day of the incident also she was accompanied by the same girls when she reached to the house and when she left to the house. After the offence was committed, she came back to the house alone and disclosed the offence to the grandmother. After the offence was committed, she came back to the house alone and disclosed the offence to the grandmother. 10.1. There is a contradictory version in the evidence of the prosecutrix with regard to that whether accused took her by holding hand or after reaching the house her hand was held by the accused person. As stated by her in her testimony that her hand was left when she shouted thereafter she ran away from the house of the accused. From the evidence of the other witnesses as well as the prosecutrix evidence, it transpires that distance between the house of the accused and the complainant is not that much and if anything happen in the houses of the accused it can easily be viewed from the house of the complainant. 10.2. From the evidence of the police witness it comes on record that if one shout from the house of the respondent-accused that can be heard in the house of the complainant. However, there was no evidence which the prosecution could have established during the trial that the offence was seen or heard by any person. There is a public road which is passing between the house of the accused and the complainant where the market is situated. Therefore also the availability of the independent witness cannot be ruled out. However, prosecution has chosen not to examine any independent person who support the case of the prosecution. 11. One more glaring conduct of the prosecutrix is required to be considered that after the offence was committed and after disclosing the same to the grandmother, she left the house, went to the school and did her routine work. She did not disclose this offence to any independent person including her friends, who accompanied her while she was leaving the house after recess. Normal behavior of the prosecutrix aged 10 years would be that she would not able to do anything if such offence is committed with her. Even if, she went to the school, she would certainly disclose this offence to her friends, who accompanied her while leaving the house. This also creats the doubt on the story of the prosecution and therefore the learned trial Court had rightly acquitted the respondent-accused from the charges. 12. That evidence of the father, who is the complainant, who did not support the case of the prosecution also required to be viewed seriously. This also creats the doubt on the story of the prosecution and therefore the learned trial Court had rightly acquitted the respondent-accused from the charges. 12. That evidence of the father, who is the complainant, who did not support the case of the prosecution also required to be viewed seriously. As per the case of the prosecution, father alone came to the police station and lodged the FIR. The FIR was reported at 17:30 hours on the next day i.e. on 01.10.2013, the offence, which is alleged to have been committed at around 13.45 hours on 30.09.2013. The FIR was delayed by around 18 hours and for that no explanation was offered by the prosecution. After this FIR was lodged, the cross FIR came to be registered by the accused, which was produced below Exhibit25 wherein it is alleged by the accused that the accused was beaten at 12’O clock on 01.10.2023 on the ground that the daughter of the complainant was teased by the accused. 13. From the arrest panchnama which was placed on record by the prosecution it transpires that, the accused came to be arrested on 02.10.2013 at 22:00 hours. Therefore, it transpires that when the accused came to lodge an FIR at 20:10 hours on 02.10.2013 he was arrested and sent to the judicial custody. It is true that it would be natural conduct of the father, whose girl was molested, but then the very father had not supported the case of the prosecution and he was declared hostile. There was a lapse in the investigation as the prosecution has neither produced any evidence of the Medical Officer, who examined the prosecutrix after the offence nor recorded the statement under Section 164 of the Cr.P.C. which is prime requirement in the cases related to the POCSO Act. 14. Requirement to prove the charge under Section 354 A would be the sexual harassment of the nature of unwelcome physical contact and advance or demand or request for sexual favours, showing pornography. From the evidence produced by the prosecution does not satisfy these requirement and therefore the learned trial Court has rightly acquitted the respondent-accused in absence of the evidence. 15. To prove the case of Section 12 of the POCSO Act following sections are required to be looked into: “11. Sexual harassment. From the evidence produced by the prosecution does not satisfy these requirement and therefore the learned trial Court has rightly acquitted the respondent-accused in absence of the evidence. 15. To prove the case of Section 12 of the POCSO Act following sections are required to be looked into: “11. Sexual harassment. A person is said to commit sexual harassment upon a child when such person with sexual intent,-- (i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or (ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or (iii) shows any object to a child in any form or media for pornographic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or (v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or (vi) entices a child for pornographic purposes or gives gratification therefor. Explanation.--Any question which involves '[sexual intent" shall be a question of fact. 12. Punishment for sexual harassment. Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.” 16. As from the evidence of the prosecutrix, this Court is of the view that no such requirement is proved against the respondent-accused. Therefore also the judgment and order passed by the learned trial Court is just and proper. 17. It is true that the conviction can be based only on the evidence of the prosecutrix. If the same is inspiring, confident and found to have been truthful version. From the evidence and the contradiction which is found from the prosecutrix evidence, this Court deems it fit to dismiss the appeal in absence of any corroboration of the aforesaid allegation. 18. If the same is inspiring, confident and found to have been truthful version. From the evidence and the contradiction which is found from the prosecutrix evidence, this Court deems it fit to dismiss the appeal in absence of any corroboration of the aforesaid allegation. 18. Considering the above reasons, it transpires that learned trial Court has rightly acquitted the respondent-accused from the charges after having considered all the evidence on record and therefore, this Court deems it fit to dismiss the appeal. 19. This being an acquittal appeal as per the law laid down by the Apex Court in the case of Chandrappa and others vs. State of Karnataka, reported in (2007) 4 SCC 415 wherein the general principles were laid down regarding the powers of the Appellate Court while dealing with the appeal against an order of the acquittal, which are reproduced hereinbelow: “(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.” 20. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.” 20. Considering the same, this Court deems it fit to dismiss this appeal and confirm the judgment and order of acquittal dated 11.12.2015 passed by the learned Additional Sessions Court, Jamnagar in Special (POCSO) Case No.7 of 2014 by acquitting the respondent-accused from the charges punishable under Section 354A of the Indian Penal Code and Section 12 of the POCSO Act. 21. Hence, this appeal fails and stands dismissed. The judgment and order of acquittal dated 11.12.2015 passed by the learned Additional Sessions Court, Jamnagar in Special (POCSO) Case No.7 of 2014 by acquitting the respondent-accused is hereby confirmed. Record and proceedings be sent back to the concerned Court, forthwith.