ORDER :

This criminal revision petition has been filed u/s 397 of Cr.P.C. challenging the order passed by the Special Court for the Trial of Offences Under the Protection of Children From Sexual Offences Act, Kattappana (for short, the court below) dismissing the petition filed by the father of the victim seeking alteration/addition of charge.

2. A crime was registered by the Vandiperiyar Police as Crime No.598/2021 against the 2nd respondent herein alleging offences punishable under Sections 449, 302, 376(2)(m) and 377 of IPC and under S.4(2) r/w 3(a) S.6 r/w 5(l)(m) and S.10 r/w S.9(i) (l) & (m) of the Protection of Children from Sexual Offences Act, (for short, the POCSO Act). The revision petitioner is the father of the victim, a 5 year old child. The prosecution allegation is that the 2nd respondent/accused trespassed into the house of the victim, committed rape on her, thereafter murdered her and thereby committed the offence. After investigation, the investigating agency filed final report against the 2nd respondent alleging the offences mentioned above.

3. Admittedly, the victim is a member of Scheduled Caste community. The caste of the 2nd respondent is in dispute. According to the petitioner, the 2nd respondent is a Christian, whereas according to the 2nd respondent, he belongs to Hindu Parayan Community. The petitioner alleged that since the 2nd respondent is a Christian and the victim belongs to Scheduled Caste, the offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the SC/ST(PoA) Act) is attracted. Alleging inaction on the part of the investigating officer in incorporating the offence u/s 3(2)(v) of the SC/ST(PoA) Act in the final report, the petitioner approached this court by filing WP(Crl) No.111/2022. This Bench as per the judgment dated 7th March, 2022 dismissed the said writ petition. In appeal, the Division Bench (WA No.502/2022) set aside the judgment of the Single Bench vacating all the observations in the judgment and granting liberty to the petitioner to move the court below with appropriate petition seeking amendment of the charge. Thereafter, the petitioner moved the court below and filed Annexure 1 petition seeking alteration of charge and to add the offence u/s 3(2)(v) of the SC/ST(PoA) Act as well. The court below after hearing both sides dismissed Annexure 1 petition as per the impugned order which is challenged in this revision petition.

4. I have heard Sri.M.R.Rajesh, the learned counsel for the revision petitioner, Sri.S.K.Adhithyan, the learned counsel for the 2nd respondent and Smt.T.V.Neema, the learned Senior Public Prosecutor.

5. The controversy centers around the caste of the accused/2nd respondent. The petitioner admits that the father of the 2nd respondent belonged to Hindu Parayan community. However, according to him, the father of the 2nd respondent got converted to Christianity from Hindu Parayan community and thereafter married to the mother of the 2nd respondent on 30/3/1998 as per Christian rites as recorded in the Church Register. As the 2nd respondent was born to Christian parents, he is Christian by birth, it was contended. The petitioner along with Annexure 1 petition submitted a report dated 24/2/2022 of Tahsildar, Peerumedu addressed to the Kerala State Scheduled Castes and Scheduled Tribes Commission. The said report was heavily relied on by the petitioner. In the report, it is stated that the Tahsildar after enquiry found that the 2nd respondent is a Christian by birth. However, the court below did not rely upon the said document on the ground that the court cannot frame a charge or alter a charge on the basis of any material provided by a party other than an investigating officer. It was further found that there is no material before the court to alter the charge to include the offence under the SC/ST(PoA) Act.

6. Relying on the decision of the Apex Court in Anant Prakash Sinha @ Anant Sinha v. State of Ha