SREEHARI @ PRATHEESH v. STATE OF KERALA

O R D E R

Dated this the 4^thday of September, 2024 This Criminal Revision Petition has been filed under Section 397 read with Section 401 of the Criminal Procedure,1973 seeking the following prayers:

"I)Discharge the petitioner/Accused in crime No.364/2018 registered by Mathilakam police station now pending trial in S.C.No.976/2018 before the Special Judge, Fast Track Special Court, Kodngallur in the interest of justice.

II)Set aside Order in Crl.M.P.368/2023 in SC 976/2018 passed by the Special Judge, Fast Track Special Court, Kodungallur dt.17.01.2024 in the interest of justice."

2. The accused in S.C.No.976/2018 on the files of Special Court, Kodungallur for trial of offences under the Protection of Children from Sexual Offences (for short 'the

2

POCSO Act') assails order in Crl.MP No.368/2023 in the above cased dated 17.01.2024 whereby the learned Special Judge dismissed an application for discharge filed under Section 227 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.'). Otherwise quashment of the criminal proceedings as such also sought for.

3. Heard the matter in detail and perused the documents.

4. The prosecution allegation is that the petitioner who had a love affair with the survivor committed rape on her at

11.30 a.m. on 22.07.2015 at the pooja room of his family temple bearing door No.XIII/395, which is situated within the compound of his family house bearing door No.XIII/341 of Edathiruthy Grama Panchayath. Further on 25.07.2015 petitioner by performing a mock marriage ceremony at his family temple by tying a 'Tali' on the survivor and thereafter on several occasions had consensual sexual intercourse with

3

her. Subsequently, petitioner asked the survivor to have sex with his unmarried brothers, and the same was disowned by her. Thereafter at 18.00 hours on 22.10.2017 the petitioner after taking the survivor to the bedroom of his house, wrongfully restraining her, attempted to have sex with her forcibly and on refusal to do so, the petitioner abused her by using filthy language. Further he threatened to kill her and voluntarily caused hurt to her. Thereby the petitioner alleged to have committed offences punishable under Sections 376,323,341,506(1)and 294(b) of the Indian Penal Code (for short 'IPC').

5. The petitioner appeared before the trial court and filed petition under Section 227 of Cr.P.C. contending that none of the offences made out prima facie from the prosecution allegations and therefore, he would deserve discharge. But the learned Public Prosecutor before the trial court opposed discharge pointing out prosecution materials

4

prima facie to suggest the commission of above offences by the accused.

6. The learned Sessions Judge considered the rival arguments and dismissed the application holding that there are materials prima facie to find commission of the above offences.

7. The learned Special Judge found that the question whether there was valid marriage and the sexual intercourse between the accused and the victim was against her will or not, are matters of evidence during trial.

8. Going by the allegations as pointed out the by the learned counsel for the defacto complainant and the learned public prosecutor, there was forceful sexual intercourse on 22.07.2015 and thereafter during the period from 26.07.2015 to 22.10.2015, on the facet of a fake marriage, the accused subjected the defacto complainant to repeated sexual intercourse.

5

9. None of the prosecution records would justify a legal marriage as contended by the accused/petitioner. Therefore, this is a matter where trial is necessary to decide the prosecution allegations for which prosecution shall be allowed to adduce evidence.

10. In view of the above discussion, dismissal of the discharge petition by the trial court is perfectly in order and the same doesn't require any interference. Quashment otherwise also is not sustainable in a case, where charge already framed and the prosecution materials prima facie would show commission of the offences alleged against the accused.

In the result, this Criminal Revision Petition stands dismissed with liberty to the petitioner to raise his contentions during trial.

Sd/-

A.BADHARUDEEN

MJL JUDGE

6

APPENDIX OF CRL.REV.PET 297/2024 Annexure 1 THE TRUE COPY OF THE FIR REGISTERED BY

MATHILAKAM POLICE STATION IN CRIME

NO.364/2018 DATED 18.05.2018. Annexure 2 THE TRUE COPY OF THE FINAL REPORT

REGISTERED BY MATHILAKAM POLICE STATION

IN CRIME NO.364/2018 FILED BEFORE JFCM

COURT KODUNAGLLUR DATED 05.07.2018

Annexure 3 THE TRUE COPY OF THE DISCHARGE PETITION IN CRL.M.P.368/2023 IN SC 976/2018 FILED

BEFORE THE SPECIAL JUDGE, FAST TRACK

SPECIAL COURT, KODUNGALLUR DT.22.08.2023

Annexure 4 THE TRUE COPY OF THE FINAL REPORT IN CRIME NO.502/18 REGISTERED BY MATHILAKAM

POLICE STATION FILED BEFORE JFCM COURT

KODUNGALLUR DT.13.07.2018

Annexure 5 THE TRUE COPY OF THE PROOF AFFIDAVIT OF M.C.54/2017 FILED BY THE DE-FACTO

COMPLAINANT BEFORE JFCM COURT,

KODUNAGLLUR DT.15.06.2019

Annexure 6 THE TRUE COPY OF THE OBJECTIN IN OP 981/2017 FILED BEFORE THE FAMILY COURT, IRINJALAKUDA BY THE DE-FACTO COMPLAINANT

DT.27.10.2017.

RESPONDENTS' ANNEXURES: NIL /TRUE COPY/

PA TO JUDGE

7