OP(CRL.) NO. 640 OF 2024
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2024:KER:79610
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
OP(CRL.) NO. 640 OF 2024
CRIME NO.102/2020 OF Kottarakkara Police Station, Kollam
AGAINST THE ORDER DATED 06.09.2024 IN SC NO.815 OF 2020
OF FAST TRACK SPECIAL COURT, KOTTARAKKARA
PETITIONER/ PETITIONER/ ACCUSED :
BABU @ SHIBU,
AGED 54 YEARS
S/O RAJAN, REVATHY BHAVAN,
AMBEDKAR COLONY, CHENGAMANADU SOUTH WARD,
CHENGAMANADU, MELILA VILLAGE,
KOLLAM DISTRICT, PIN - 683 578
BY ADV H.PRAVEEN (KOTTARAKARA)
RESPONDENT/ RESPONDENT/ STATE :
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682 031
SMT. SREEJA V., PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
24.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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BECHU KURIAN THOMAS, J.
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O.P.(Crl.) No.640 of 2024
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Dated this the 24th day of October, 2024
JUDGMENT
Petitioner challenges an order dismissing his application filed under section 311 Cr.P.C.
2. Petitioner is the accused in S.C.No.815 of 2020 on the files of the Fast Track Special Court, Kottarakkara. He faces prosecution for various offences under the Indian Penal Code, 1860 (for short, 'IPC') including Section 377, apart from the offences under the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO'). Initially the court had framed a charge under Section 107 IPC for abetment and the trial proceeded on the said basis. When the evidence was completed and the case was posted for orders, the trial court noticed that the offence under Section 17 of the POCSO Act had been omitted to be incorporated. Therefore, the trial court altered the charge from Section
107 IPC to Section 17 of the POCSO Act. Thereafter, petitioner filed the application under Section 311 Cr.P.C to recall the witnesses already examined by the prosecution for cross-examination. The learned Sessions Judge by the impugned order dated 06.09.2024 dismissed the said application after observing that recalling of witnesses can only be seen to be a delay in tactic and no new aspect need to be brought in by the
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alteration of charge.
3. I have heard Sri.H.Praveen Kottarakkara, the learned counsel for the petitioner as well as Smt.Sreeja V., the learned Public Prosecutor.
4. By altering the charge from Section 107 IPC to Section 17 of POCSO, no new ingredient is brought in, since both have the same ingredients of the offence of abetment. Though the ingredients of Section
107 IPC and Section 17 of the POCSO Act are the same, and the prosecution did not seek to adduce any evidence, still, the petitioner wanted to cross-examine all the witnesses mentioned in Ext.P6. In this context, it is essential to note that by altering the charge from 107 IPC to section 17 of POCSO Act, the burden of proof has shifted. Under the IPC, the burden of proof is on the prosecution to prove the guilt of the accused beyond reasonable doubt, while under the POCSO Act, the burden is on the accused. Section 30 of the POCSO Act states that, in a prosecution for an offence under the said Act, the culpable mental state of the accused will be presumed to be in existence.
5. The nature of defence the accused has to adopt when the prosecution is under a POCSO Act will be different from the defence to be adopted in a prosecution under the Indian Penal Code. Since the court had altered the charge after the trial was completed, petitioner's defence can be prejudiced if he is not given an opportunity to cross-examine the witnesses already examined by the prosecution. The reasoning that the application is intended to delay the conclusion of the trial is, according to
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me, in the circumstances of the case, not legally justified, since the situation arose only because of the court altering the charge. Hence, petitioner cannot be attributed with any attempt to delay the trial. In view of the above, the impugned order dated 06.09.2024 in Crl.M.P. No.592 of 2024 in S.C. No.815 of 2020 on the files of the Fast Track Special Court, Kottarakkara is hereby set aside. The application filed by the petitioner under Section 311 of Cr.P.C. is allowed. Petitioner is permitted to cross-examine the ten witnesses mentioned in the list of witnesses dated 29.08.2024, produced as Ext.P6 in this original petition. The original petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
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