Criminal courts can formulate charges by excluding offenses in the final report or including offenses not mentioned in the final report: Kerala HC

Section 228 deals with framing of charges in session cases and Section 240 deals with framing of charges for trial of warrant cases.

Justice A. Badharudeen is considering an appeal from the defendant, a school bus driver accused of sexually abusing a minor child. He had approached the court to quash the charges filed by the special court for offenses which were not included in the final report by the police.

court said“On reading the above provisions, it is clear that the judge, after examining the criminal record, if he is of the opinion that there are grounds to believe that the accused has committed an offense, may frame an indictment for the said offense.” from the Prosecutor’s Office records disclosed. In other words, a criminal court may indict the offense(s) arising from the prosecution’s records, excluding those offenses included by the police in the final report and also any offenses not included by the police in the final report. “

In this case, the Investigating Officer filed a final report against the petitioner alleging the commission of offenses punishable under Section 354(B) of the IPC, Section 75 of the Juvenile Justice (Care and Protection) of Children Act and under Section 8 read with 7 and 10 are punishable read with 9(m) and 9(n) of the POCSO Act.

The petitioner stated that the special court for hearing POCSO cases framed charges against the petitioner for alleged offenses which were not included in the final police report. It was argued that the police in its final report did not take into account the offense of aggravated sexual assault under Section 5, which is punishable under Section 6 of the POCSO Act against the petitioner.

The petitioner submitted that the Special Court had initially charged with offenses punishable under Section 5(n) read with 6(1) of the POCSO Act. It was argued that without mentioning anything, this charge was amended in Section 5(p) read with 6(1) of the POCSO Act. It was argued that the final report did not reveal any criminal offense of serious sexual assault.

The public prosecutor stated that the offense of serious sexual assault emerged from the criminal files.

The court found that the offense of aggravated sexual assault emerged from the victim’s statement, even if the police did not file a report.

The court further stated that if the judge has reason to believe that the defendant has committed offenses not listed in the final report, the judge may charge those offenses if this appears from the prosecution’s records.

Therefore, the court dismissed the revision petition and held that the plaintiff must be prosecuted on the basis of the amended charge framed against him by the special court.

Legal Counsel for Applicants: Attorneys MRSasith, MRSarin, RKChirutha, Anjana Suresh.E, Parvathi Krishna, Reethu Jacob, Riya Kochumman, Nanma.BB, Lidhiya George

Attorney for the defendant: Senior Public Prosecutor Renjit George

Case number: CRL.REV.PET NO. 1046 OF 2024

Case title: Muhammad Iliyas v. State of Kerala

Citation: 2024 LiveLaw (Ker) 640