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2023 Supreme(Ker) 310
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. BABU, J.
Unni Mukundan, S/o. Mukundan – Appellant
Versus
State Of Kerala – Respondent
Crl.MC No. 2579 of 2021
Decided on : 23-05-2023
Advocate Appeared:
For the Appellant : SAIBY JOSE KIDANGOOR, SRI.BENNY ANTONY PAREL, SMT.S.SIBHA, KUM.PARVATHY VIJAYAN
For the Respondent: V.JOHN SEBASTIAN RALPH, C.N.SREEKUMAR, SABU P.JOSEPH, MANJU PAUL, ANIL PRASAD, SANGEETHA RAJ , PUBLIC PROSECUTOR
Point of law: At stage of framing of a charge, Court is concerned not with proof of allegation rather it has to focus on material and form an opinion whether there is strong suspicion that accused has committed an offence, which if put to trial, could prove his guilt.
Headnote:
Indian Penal Code, 1860 - Sections 354 and 354-B – Criminal Procedure Code, 1973 - Section 244, 245(1), 246, 313 – Seeking Discharge - Procedure where accused is not discharged - Assault or criminal force to woman with intent to outrage her modesty - Whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if Magistrate comes to the conclusion that there is no such case made out against accused, Magistrate proceeds to discharge - Section 246 of Cr.PC, the legislature has created an inbuilt element of presumption. (Para 12).
Finding of the Court :
A test of prima facie case has to be applied before framing of charge. At the stage of framing charge, the probative value of the material on record cannot be gone in; the material brought on the record by the prosecution is accepted as true at that stage. The Court need not look into delay in preferring the complaint at this stage. The Apex Court has considered the scope of jurisdiction of the High Court while exercising power under Section 482 Cr.P.C to quash the proceedings at the stage prior to the commencement of the actual trial in a plethora of decisions.
Result: Criminal M.C dismissed
ORDER :
The order dated 21.05.2020 passed by the Sessions Court, Ernakulam dismissing the Criminal Revision Petition No.52/2019 and confirming the order of the Trial Court refusing to discharge the petitioner/accused is under challenge herein.
2. The petitioner is facing prosecution for the offences under Sections 354 and 354-B of the Indian Penal Code before the Judicial First Class Magistrate Court-IX, Ernakulam.
3. These charges are based on a complaint filed by respondent No.2.
4. In the said complaint, it was inter alia, alleged as follows:
The petitioner is a well-known cine actor in Malayalam, Tamil, and Kannada film industries. Respondent No.2 is an Austrian of Indian origin living in Vienna with her parents. She developed a couple of scripts and storylines to create a value-adding message conveying commercial film in the Malayalam Film Industry. In May 2016, she came to Kerala and contacted the petitioner to brief him about the story and to check whether he was interested in taking up a lead role in the movie. She could not meet the petitioner then as he was in Hyderabad. Respondent No.2 returned to Austria and came back to Kerala in August 2017. On 23.08.2017, she made an appointment with the petitioner and went to his house to tell the story. She reached the home of the petitioner at 3.30 p.m. When she was about to tell the story, the petitioner was not interested to hear it and instead asked for a written script. Thereupon, there occurred some unfriendly exchange of words between them, and the petitioner suddenly caught hold of her, forcefully kissed her, and attempted to commit rape on her. After sometime she returned in a Uber taxi, which the petitioner arranged. On the way, she contacted PW2, met him, and conveyed everything that happened.
5. Respondent No.2 and two other witnesses gave evidence as PWs 1 to 3. They deposed in tune with the pleadings in the complaint. The Trial Court permitted the petitioner to cross-examine the witnesses under Section 244 Cr.P.C. The petitioner filed CMP No.2497/2019 under Section 245(1) Cr.P.C seeking discharge. The Trial Court held that the materials made available disclose the existence of all the ingredients constituting the alleged offences. The Trial Court held that there are grounds to presume that the petitioner has committed the offences alleged. The Court below dismissed the application seeking discharge and decided to frame charges under Sections 354 and 354-B of IPC.
6. The petitioner challenged the abovesaid order in Criminal Revision Petition No.52/2019 before the Sessions Court, Ernakulam, which confirmed the findings of the Trial Court.
7. Heard the learned counsel for the petitioner, the learned counsel for respondent No.2, and the learned Public Prosecutor.
8. The learned counsel for the petitioner submitted that analysis of the prosecution evidence would reveal that no case against the petitioner has been made out which, if unrebutted, would warrant his conviction and, therefore, he is entitled to discharge. The learned counsel vehemently contended that there is no justification for the Trial Court to presume that the petitioner has committed the offences alleged. The learned counsel for the petitioner further contended that the Trial Court has travelled beyond the presumption as provided in Section 246 Cr.P.C.
9. Per contra, the learned counsel for respondent No.2 submitted that there is ground for presuming that the petitioner has committed the offences. The learned counsel further submitted that the test of prima facie case alone has to be applied before framing of charge.
10. The scheme of trial in the case of a warrant-case instituted otherwise than on a police report is dealt with in Sections 244 to 250 of Cr.P.C. Sections 244 to 246 are the relevant provisions in the present context. In a warrant trial instituted other than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.PC, the Magistrate has to hear the pr
