Kerala High Court

Kerala High Court: In a challenge against order dated 21-5-2020 passed by Sessions Court confirming Trial Court order refusing to discharge actor Unni Mukundan facing prosecution for offences under Sections 354 and 354-B of Penal Code, 1860, K. Babu, J. said that the Court is not inclined to terminate the proceedings at this stage and dismissed the petition.

Unni Mukundan is a well-known actor in Malayalam, Tamil and Kannada Film Industries, while the complainant is an Austrian of Indian origin who developed a couple of scripts and storylines for a commercial film in Malayalam Film Industry. She came to Kerala in 2016, contacted Unni Mukundan to brief him about the story and check his interest in lead role, but could not meet him. Then she came back in 2017 and visited the actor’s house to tell the story. As per complaint, there was some unfriendly exchange of words between them, and that he suddenly held her, forcefully kissed her and attempted to commit rape on her. She returned in an Uber taxi arranged by Unni Mukundan and conveyed everything to the Prosecution Witness (‘PW’) on her way back. The three PWs including the complainant deposed in tune with the complaint during evidence.

Unni Kundan’s petition seeking discharge under Section 245(1) of CrPC was dismissed by the Trial Court proceeding further with framing charges under Sections 354 and 354-B of IPC while holding that material available confirms with the ingredients constituting alleged offences reflecting that he committed the said act.

The Sessions Court concurred with the findings of Trial Court in a challenge against the said dismissal during Criminal Revision Petition.

In the instant matter, the Court scrutinized Sections 244 to 246 of CrPC for scheme of Trial in a warrant case instituted other than a police report. It said that “The proceeding before Trial Court is now at the stage where the Magistrate has formed an opinion under Section 246(1) CrPC” and pointed towards an inbuilt element of presumption as per Section 246 CrPC.

The Court referred to Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 for the meaning of word ‘presume’. It further relied on State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198 wherein, the Court held that during framing of charges, the Court is concerned with proof of allegation, but on material and forming opinion on whether there is strong suspicion of accused having committed an offence which could prove his guilt if put to trial.

The Court considered the facts of the instant case and observed that “The materials placed by the prosecution prima facie disclosed the existence of all ingredients constituting the alleged offences.” The Court mentioned a plethora of cases decided by the Supreme Court regarding scope of High Court’s jurisdiction/power under Section 482 of CrPC for quashing proceedings at a stage prior to commencement of actual trial. It also relied on the principles enunciated in Amit Kapoor (supra) and Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330, which the High Courts must keep in mind while exercising the said jurisdiction.

The Court commented on Unni Mukundan’s failure to show any patent miscarriage of justice in proceedings before the Trial Court and said that the Court is not inclined to terminate the proceedings at this stage. Thus, the Court dismissed the instant petition due to lack of merits.

[Unni Mukundan v. State of Kerala, 2023 SCC OnLine Ker 3354, Order dated 23-5-2023]

Order by: Justice K. Babu

Advocates who appeared in this case :

For Petitioner: Advocate Saiby Jose Kidangoor, Advocate Benny Antony Parel, Advocate S. Sibha, Advocate Parvathy Vijayan;

For Respondents: Advocate V. John Sebastian Ralph, Advocate C.N. Sreekumar, Advocate Sabu P. Joseph, Advocate Manju Paul, Advocate Anil Prasad, Public Prosecutor Sangeetha Raj.

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