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When Prima Facie Materials Show That Victim Was Subjected To Rape, It Is Not Possible To Infer That Bishop Franco Was Falsely Implicated: Kerala HC [Read Judgment]

LIVELAW NEWS NETWORK
8 July 2020 7:03 AM GMT
When Prima Facie Materials Show That Victim Was Subjected To Rape, It Is Not Possible To Infer That Bishop Franco Was Falsely Implicated: Kerala HC [Read Judgment]
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“If such a case is thrown out at the threshold it will give a wrong message to the right thinking people in the society."
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In its judgment dismissing Bishop Franco Mullakkal petition, the High Court observed that there are prima facie materials are available to show that the Sister was subjected to sexual assault including rape by him.

"It is not possible to infer that this Bishop/petitioner was falsely implicated by the Mother Superior of the Home functioning under him, on mere enmity as contended by him. The prosecution has produced the chronicle/ record maintained in the Home indicating his stay in the Home on the relevant dates during his visits.", Justice Shircy V. observed in her judgment dismissing the Revision Petition which was filed by the Bishop challenging the order of the trial court rejecting his plea to discharge him from a rape case.

Background

The allegation against the Bishop is that the complainant-nun was subjected to rape on multiple occasions between 6-5-2014 to 23-09-2016 by Franco Mulakkal by abusing his dominant position. After the allegations surfaced for the first time in July 2018, a collective called "Save Our Sisters" launched public protests calling for arrest of Franco. They alleged that the investigation was being sabotaged by the Church. The Bishop was arrested by police on September 21, 2018. The Special Investigation Team of Kerala police submitted the charge-sheet in April 2019, for offences punishable under Sections 342, 376 (2)(k) and (n), 377, and 506 (I) IPC. In his discharge plea, the priest argued that he was falsely implicated after he questioned the financial dealings of the victim nun."

Discharge cannot be allowed on the ground of certain contradictions or variation in the FIS or in the 164 statement 

The Court observed that when there are materials on record, a discharge cannot be allowed on the ground of certain contradictions or variation in the FIS or in the 164 statement recorded by the Magistrate. The Court also added that the delay in lodging the complaint and registration of the FIR after two years of the alleged incidents against the petitioner cannot be taken as a ground to conclude that there exists no ground to proceed against the petitioner. The court said:

"It is most significant to note that the victim is a Nun. A Nun leads an ascetic life. She may not able to disclose the ordeal she faced from the hands of the petitioner like an ordinary woman and lodge a complaint to the police then and there. The mindset of a nun leading a divine life may be different. When she points her finger to the head of the congregation she will have to think of it many times".

While addressing the argument regarding delay, the court further said:

"The position and the status of a Nun in our society who devote their whole life to the service of Almighty is definitely quite different and unique. Such a woman might have so many restrictions and hesitation and it will be difficult to disclose the evil activities to which she was subjected to, openly as an ordinary lady who is facing a similar trauma. The precarious situation of the Sister has to be taken into account prima facie to find that whether there are grounds for the delay in lodging a criminal complaint against her superior officer that too the Bishop who is the supreme authority of the congregation."

Scope of Section 227 CrPC-Discharge

The Court added that guilt or innocence of an accused is not determined at the time of framing of charge, only existence of a prima facie case is enough.The court also explained the scope of Section 227 CrPC as follows:

If only glaring circumstances are there to infer that sufficient materials have not been placed by the prosecution so as to proceed against an accused, he is entitled for a discharge without a trial of the case. Minor contradictions in the statement of the star witness, variation in the statement of the other witnesses cited by the prosecution or other glaring circumstances to have a mere suspicion of the prosecution case are not at all genuine ground to conclude that there are 'not sufficient grounds to proceeding' against the accused. So also the character and the antecedents of the victim are not at all a ground to doubt the prosecution case so as to hold that the accused is entitled for a discharge. When materials prima facie show that the accused had committed the alleged offences, it is doubtless that he is not entitled for a discharge under Section 227 of the Code of Criminal Procedure. Like that if there is proper explanation regarding the delay in lodging the complaint there is no justification to look into the prosecution case with suspicious eyes, totally ignoring the dignity of the woman.

The Court clarified that the observations made in this judgment are only for the purpose of disposal of the revision petition. It said that it is the duty of the trial court to test the veracity of the witnesses and appreciate the valuable evidence by undergoing the process of scanning of the same with minute details and to consider the case on its own merits. The position and status of the petitioner and the victim as well the fact that the petitioner is in a fiduciary capacity and had domain over the victim etc have also to be considered by the court after going through a full fledged trial, the court added.

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