JEFFIN KURIAKOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the 2nd accused in S.C.No.154 of 2021 pending on the files of the Fast Track Special Court, Changanassery. He filed Crl.M.P.No.184 of 2021 seeking discharge. The learned Special Judge dismissed that petition as per the order dtd. 14/12/2021. Challenging that order, the petitioner has filed this petition under Sec. 397 read with Sec. 401 of the Code of Criminal Procedure, 1973 (Code).

(2.) Heard the learned counsel for the petitioner and the learned Public Prosecutor.

(3.) The offences alleged in the final report are punishable under Ss. 363, 368 and 376(2)(n) read with Sec. 34 of the Indian Penal Code, 1860 (IPC) and Ss. 4 r/w 3 and 6 r/w 5(l) of the Protection of Children from Sexual Offences Act, 2012 (PoCSO Act). The Special Judge held that the petitioner is not answerable even constructively for the charges of kidnapping and rape. However, it was held that the petitioner is liable to be tried for the offence of abetment punishable under Sec. 17 of the PoCSO Act. The learned counsel for the petitioner would submit that such an offence was not alleged in the final report and the materials produced by the prosecution would not make out such an offence as against the petitioner. The statement of the victim itself reveals that the petitioner, who is her friend, helped her on her request to find a flat. The further overtact is that he dropped the de facto complainant and the 1st accused near the flat and that he purchased a mobile phone and gave to her. In the view of the learned counsel for the petitioner by any stretch of imagination those acts would not attract an offence of abatement to commit kidnapping and penetrative sexual assault. Accordingly, the learned counsel submits that the impugned order is liable to be set aside and the petitioner discharged.