JABIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is accused in Crime No.302/2021 of Cherthala Police Station, Alappuzha District, alleging commission of offences under Ss. 354, 354D, 376(2)(n), and 45 of the Indian Penal Code, Sec. 3(a) r/w. S.4, S 5(i), 5(p) r/w. S. 6, S.7 r/w. S.8, S. 9(p) r/w S.10, 11(iv) r/w. S.12 of the Protection of Children from Sexual Offences Act and Sec. 75 of the Juvenile Justice (Care and Protection of Children) Act. The matter is now pending as S.C. No.402/2021 on the file of the Fast Track Special Court, Cherthala, Alappuzha Division.

(2.) In brief, the allegation against the petitioner/accused is that the petitioner/accused trespassed into the house of the minor victim, aged 16 (between the dates 10/12/2020 and 5/2/2021) and committed penetrative sexual assault on her and thereby, he committed the offences alleged against him.

(3.) The petitioner/accused has approached this Court, challenging Annexure VII order in Crl.M.P. No.570/2023 in S.C. No.420/2021 on the file of the Fast Track Special Court, Cherthala. Crl.M.P. No.570/2023 was an application filed by the Prosecution under Sec. 311 Cr.P.C, seeking to recall (for further examination) PW3 (the victim) to prove the age of the victim by producing her SSLC book. The learned Special Judge, on a consideration of the matter and after considering the objections raised on behalf of the petitioner/accused, has allowed the petition. The learned Special Judge found that the contention raised on behalf of the petitioner/accused that the power under Sec. 311 Cr.P.C cannot be used to summon a document was not acceptable as mere production of the document will not suffice, and when the prosecution seeks to examine PW3 to tender evidence regarding the contents of the SSLC book, the power under Sec. 311 Cr.P.C could be invoked for the said purpose. The Special Court relied on the judgment of the Supreme Court in Varsha Garg V. State of Madhya Pradesh and Others, 2022 SCC OnLine SC 986, to hold that where the evidence is essential for a just decision of the case, it is incumbent on the court to exercise power under Sec. 311 Cr.P.C. The contention of the petitioner/accused that there was nothing to show that the production of the document was essential for a just decision in the case was rejected. It was held that Jarnail Singh V. State of Haryana, AIR 2013 SC 3467, is the authority for the proposition that Rule 12 of the Juvenile Justice Rules is applicable in determining the victim's age in cases where offences under the POCSO Act are involved. It was found that since the prosecution is seeking to produce the SSLC certificate of the victim to prove her age and since that document is the first of the documents that can be relied upon to prove the age of the victim under Rule 12(3) of the Juvenile Justice Rules, the production of the document was essential for a just decision of the case. The contention of the petitioner/accused, based on the judgment of this Court in Smrithy George v. State of Kerala, 2023 (5) KHC 137, was rejected by the Special Court on the finding that the decision was rendered in a situation where the document sought to be produced was not part of the record and had not been seized by the police and where genuineness of the document had been seriously disputed. The court also found that the document now sought to be produced cannot be treated as a new piece of evidence, and therefore, the law laid down in Smrithy George (supra) will not apply to the facts of the case. The contention raised that successive applications cannot be permitted was also rejected on the ground that the earlier petition filed by the prosecution had been rejected only on the ground that it was not a proper application and the same had been dismissed specifically reserving the liberty of the prosecution to file a fresh application in the proper form. The learned Special Judge, therefore, allowed the petition filed under Sec. 311 Cr.P.C and issued a summons to PW3 to produce her SSLC book/certificate.