BEFORE THE HON’BLE ADDITIONAL SESSIONS COURT- II OF ERNAKULAM

Crl.MP No. of 2023

IN

SC No. 381/2015

Petitioner/ Accused No. 3

Pushpavathy, aged 54 years, S/o Kunjipillai MJ Bhavan near Kunnumamoodu Checkpost

Kunnumamoodu P.O Kanyakumari District Tamil Nadu.

v.

Respondent/Complainant

State of Kerala represented by Spl. Public Prosecutor Additional Sessions Court- II

Ernakulam.

PETITION FILED U/S 227 CRPC FOR DISCHARGE

1. The Petitioner is arrayed as the 3rd accused in the above case. Registered for the
offences u/ss 366(A), 372, 373, 376(2)(g), 354, 342, 506(i),109 R/W 34 of the
Indian Penal Code and under sections 23(iii) of the Juvenile Justice act 2000 and
under sections 4,5,6 of the ITP Act 1956.
2. The prosecution case is that in the month of April 2010, the 1st accused along with
A3 and Kadheeja took CW1 to Thiruvananthapuram and from there A4 picked
them and went to a guest house and sexually abused CW1 for the two days and
thereafter he handed over CW1 to 5th accused.
3. The petitioner is before this Hon’ble Court for a discharge due to the reason that
the petitioner has already been convicted of crimes of the same transaction and
that convicting her on the same crime again is violative of her Fundamental rights
under ____ and S. _____ of the Code of Criminal Procedure.

GROUNDS

A. The very inception of the case in crime no. 346/2011 is the FIS given by CW1 to
the effect that she was sexually exploited by her own father as well as other
people. In the FIS given on 07.03.2011 the victim narrates the very first incident
of sexual exploitation as the one that happened on 03.05.2010 when she was
 studying in the 10th standard. The incident that was narrated was of the sexual
exploitation by an alleged film director in a private hotel in Panampilly Nagar.
B. The victim has further given enumerable statements implicating persons who had
sexual encounters with her. There was no whisper about an encounter with A4 in
any of those statements. The first time CW1 mentions about going to
Thiruvananthapuram and thereafter to Parashala was on 29.03.2011 when she gave
her 164 statement before a Magistrate. The 164 statement speaks about a certain
Swamy and it was this Swamy who molested her. CW1 had no case that she knew
the real name of Swamy. The first time A4 was mentioned was in a 161 statement
that was given on 21.05.2012, after one year and two months of the 164 statement.
C. Even if it is presumed for the sake of arguments that the version given by CW1
against A4 is true, then that becomes the very first incidents of sexual abuse CW1
had to face as it is her case that she was taken to Thiruvananthapuram in 2010
April.
D. Hence it is an unbelievable version and evidently an induced statement to rope the
petitioner herein in a false prosecution.
E. The following circumstances that are discernible from the materials produced
before this court are as follows:

i. The case was registered and investigated by the local police

from the date of FIR till 29.05.2011 and thereafter from
30.05.2011 CBCID took over the investigation from the local
police and conducted investigation till 17.06.2011. Hence
during the said period, he was the investigating officer. On
15.06.2011 the petitioner herein was taken into illegal custody
by AC of Police and thereafter he was falsely implicated in this
case. It is also to be noted that the petitioner herein was shown
to CW1 before his arrest.
ii. It is also to be noted that the name of the petitioner has not found
place in any records before his arrest, not even in the 164 statement.
iii. This court should take note of the fact that a test identification parade
was conducted on 08.07.2011 in order to “identify” the petitioner
herein on 08.07.2011 after the arrest and identification of the
petitioner.
 iv. A test identification parade is to be conducted as soon after the
commission of the crime as possible so as to the enable the witnesses
to identify the accused when their memory is still fresh. A TIP that is
conducted after an accused is shown by the police and identified by
witness has no evidentiary value at all and hence the TIP conducted
in this case is inadmissible in evidence.
v. In Shyamal Ghosh v. State of West Bengal. (AIR 2012 SC 3539), the
Hon'ble Supreme Court held : The whole idea of a Test Identification
Parade is that witnesses who claim to have seen the culprits at the
time of occurrence are to identify them from the midst of other
persons without any aid or any other source. The test is done to check
upon their veracity. In other words, the main object of holding an
identification parade, during the investigation stage, is to test the
memory of the witnesses based upon first impression and also to
enable the prosecution to decide whether all or any of them could be
cited as eyewitnesses of the crime.”
Hence, after the petitioner was shown to CW1, the TIP has no
sanctity.
F. The only officer who knows Manikandan is Tomin Thachenkary. They had a
contract in between to purchase a landed property which is still sub-judice.
G. There had been altercations between Manikandan and Tomin Thachankary in the
presence of Advocates when compromise talks were going on in several occasions
before the sexual crime.
H. Tomin Thanchankary had threatened Manikandan that he could be taken into
custody in some cases since he was IGP at that time. Tomin Thachankery has a
history in implicating the individuals whom he had rivalry which is also under
judicious review even today. Tomin Thachankery is an officer with a notorious
background and there are many cases pending against him including Prevention of
Corruption Act.
I. In order to frame a charge against the accused the court has to form an opinion that
there is ground for presuming that the accused has committed an offence. The
court must not blindly adopt the report filed by the prosecution without adverting
to the material on record.
J. In P. Vijayan v. State of Kerala(AIR 2010 SC 663) the Hon’ble Supreme court
held, if two views are possible and one of them gives rise to suspicion only as
distinguished from grave suspicion the trial judge will be empowered to discharge
the accused and at this stage he is not to see whether the trial will end in
conviction or acquittal. The judge is not a mere post office to frame the charge but
has to exercise his judicial mind to facts of the case in order to determine whether
a case for trial has been made out by the prosecution.
K. In State of Karnataka v. Muniswamy [AIR 1977 SC 1489], the Hon'ble Supreme
Court held: the order framing a charge affects a persons' liberty substantially and
therefore it is the duty of the court to consider judicially whether the material
warrants the framing of the charge. It cannot blindly accept the decision of the
prosecution that the accused be asked to face a trial. In Vadilal Panchal's case
S.203 of the old Code was under consideration, which provided that the Magistrate
could dismiss a complaint if after considering certain matters mentioned in the
section there was in his judgment no sufficient grounds for proceedings with the
case. To an extent S.227 of the new Code contains an analogous power which is
conferred on the Sessions Court. It was held by this Court, while considering the
true scope of S.203 of the old Code that the Magistrate was not bound to accept
the result of an enquiry or investigation and that he must apply his judicial mind to
the material on which he had to form his judgment. These decisions show that for
the purpose of determining whether there is sufficient ground for proceeding
against an accused the court possesses a comparatively wider discretion in the
exercise of which it can determine the question whether the material on the record,
if unrebutted, is such on the basis of which a conviction can be said reasonably to
be possible.
L. The very purpose of the stage of discharge before a criminal court is to see if there
is a prima facie case against a person based on the materials that are produced by
the prosecution. In P. Vijayan v. State of Kerala [2010 KHC 4058], the Hon'ble
Supreme Court held:
“As discussed earlier, S.227 in the new Code confers special power on the Judge
to discharge an accused at the threshold if upon consideration of the records and
documents, he finds that 'there is not sufficient ground' for proceeding against the
accused. In other words, his consideration of the record and document at that stage
is for the limited purpose of ascertaining whether or not there is sufficient ground
 for proceeding against the accused. If the Judge comes to a conclusion that there is
sufficient ground to proceed, he will frame a charge under S.228, if not, he will
discharge the accused. This provision was introduced in the Code to avoid wastage
of public time which did not disclose a prima facie case and to save the accused
from avoidable harassment and expenditure.”
M. In Nagaraj K.M v. State of Kerala [2021 (1) KHC 965], the Hon'ble High Court of
Kerala held:
“The words "not sufficient ground for proceeding against the accused" in S.227 of
the Code clearly show that the Judge is not a mere post office to frame the charge
at the behest of the prosecution. The Judge has to exercise his judicial mind to the
fact of the case in order to determine whether a case for trial has been made out by
the prosecution. In assessing this fact, it is not necessary for the Court to enter into
the pros and cons of the matter or into a weighing and balancing of evidence and
probabilities. But the Judge has to sift the evidence in order to find out whether or
not there is sufficient ground for proceeding against the accused. The sufficiency
of ground would take within its fold the nature of the evidence recorded by the
police or the documents produced before the Court which ex facie disclose that
there are suspicious circumstances against the accused so as to frame a charge
against him.”
N. The whole prosecution story rests on a cloud of doubt. Dragging a person
unnecessarily into a criminal trial, is violative of Article 21 of the constitution of
India.

In the circumstance, it is humbly prayed that this Hon'ble Court may be pleased to
discharge the accused no. 3/petitioner in the above case.

Dated this the 06th day of June 2022

John S. Ralph

Counsel for the Petitioner/A4

 Pre on: 27.06.2022

BEFORE THE HONBLE

ADDL. SESSIONS COURT-II,

ERNAKULAM

Crl. M.P No. of 2023

in

S.C No. 381/2015

Petitioner/Accused No. 3

Pushpavathy

v.

Respondent/Complainant

State of Kerala

PETITION FILED U/s 227 Cr.P.C

Counsel for the Petitioner

____________________________
John s. ralph
Vishnu Chandran
Ralph r. john
Appu babu
Shifna shukkur
Giridhar krishna kumar