Kerala High Court Refuses To Quash Trial Court Proceedings Against Actor Unni Mukundan In Sexual Harassment Case

The Kerala High Court on Tuesday dismissed an application filed by Malayalam film actor Unni Mukundan challenging an order of the Sessions Court that confirmed the order of the trial court refusing to discharge the actor in a case where he is facing prosecution for offences under Sections 354 (Assault of criminal force to woman with intent to outrage her modesty) and Section 354-B (Assault or use of criminal force to woman with intent to disrobe) of the Indian Penal Code,1860. 

The case relates to an ongoing trial court proceeding against the actor, which was initiated based on a complaint filed by a woman  in 2017, accusing the actor of sexual harassment. The complainant alleged that the actor forcefully kissed her and attempted to rape her when she visited the actor at his residence in Kochi to discuss a movie project. 

A single bench of Justice K Babu dismissed the actor’s application holding that “the materials placed by the prosecution prima facie disclosed the existence of all the ingredients constituting the alleged offences.”

The Court went on to observe that the petitioner “failed to show that there was any patent miscarriage of justice in the proceedings in the Court below.” The Court thus refused to terminate the proceedings of the court below.

The counsel appearing for the actor argued that the prosecution has not established a case against the petitioner and that he is entitled to be discharged from the case. The counsel appearing for the complainant on the other hand argued that only the test of prima facie case needs to be applied while framing charges. There is sufficient ground for presuming that the actor has committed the alleged offences, the counsel for the complainant contended.

The Court observed that if the Magistrate is satisfied that a prima facie case against the accused is made out, charges can be framed under Section 246(1) of the Cr.P.C.

“a test of prima facie case has to be applied before framing of charge. At the stage of framing charge, the probative value of the material on record cannot be gone in; the material brought on the record by the prosecution is accepted as true at that stage. “ the Court observed

The Court while refusing to interfere with the lower court proceedings also observed that the evidence given by the witnesses was in tune with the pleadings of the complainant.

On 9 February 2023, the Court had vacated the stay previously granted by it on the trial proceedings after the woman-complainant stated that the Court was earlier misled into believing that the matter had been settled.

The counsel for the complainant had submitted that the interim stay was granted by the Court acting on a false submission by the counsel for the actor that the matter had been settled between the parties. The affidavit claiming settlement submitted in court, based on which the interim stay was granted, was never signed by the complaint herself, her counsel submitted.

On 07.05.2021, based on the submission of the counsel for the petitioner that the matter had been settled between the parties, the court granted a stay on the trial court proceedings:

"The learned counsel for the petitioner submits that the 2nd respondent informed the petitioner that she does not intend to proceed with the complaint", the Court had recorded in the stay order.

However subsequently, Justice Babu observed that the allegations made by the woman about false claim of settlement, if found to be true, are "very serious" and that Mukundan would be answerable for the same. The actions of the petitioner would amount to forging and submitting of false documents before the court, which is a criminal offence, the court had observed. This is a fraud on the court and an attempt to mislead it, the court had said previously.

The petitioner was represented by Advocate Saiby Jose Kidangoor, the former president of the Kerala High Court Advocates’ Association, who had resigned amid allegations of collecting money in the name of bribing judges. 

Counsel for the Petitioner: Advs. Saiby Jose Kidangoor, Benny Antony Parel, S Sibha, Parvathy Vijayan

Counsel for the 2nd Respondent: Advs. V John Sebastian Ralph, C N Sreekumar, Sabu P Joseph, Manju Paul, Anil Prasad

Public Prosecutor: Adv. Sangeetha Raj

Case Title: Unni Mukundan V State of Kerala

Citation: 2023 LiveLaw (Ker) 230

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