Kerala High Court
Muhammed Shamnad vs State Of Kerala on 1 July, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
W.P.(Crl.).No.828 of 2025
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2025:KER:48951
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 1ST DAY OF JULY 2025 / 10TH ASHADHA, 1947
WP(CRL.) NO. 828 OF 2025
PETITIONER(S):
MUHAMMED SHAMNAD
AGED 34 YEARS, S/O ABDUL SALAM RESIDING AT
PUZHAMKUNNUMMEL HOUSE, KAITHAPOYIL P.O, PUTHUPADI,
KOZHIKODE, PIN - 673586
BY ADV SRI.UNNI. K.K. (EZHUMATTOOR)
RESPONDENT(S):
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT,
SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695001
2 STATE POLICE CHIEF
STATE POLICE HEAD QUARTERS THIRUVANATHAPURAM,
PIN - 695010
3 SUPERINTENDENT OF POLICE (NRI CELL)
STATE POLICE HEAD QUARTERS THIRIVANATHAPURAM,
PIN - 695010
4 CITY POLICE COMMISSIONER
KOZHIKODE CITY, KOZHIKODE, PIN - 673001
5 STATION HOUSE OFFICER
MAVOOR POLICE STATION MAVOOR P.O, KOZHIKODE, PIN - 673661
6 SHANAVAS
MUNDOLAKKAL HOUSE PURATHUMKUDI, CHERUPPA MAVOOR,
KOZHIKODE, PIN - 673661
W.P.(Crl.).No.828 of 2025
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2025:KER:48951
7 AMBREEN ASHKAR
W/O SHANAVAS PURATHUMKUDI, CHERUPPA MAVOOR, KOZHIKODE,
PIN - 673661
BY ADV.:
SR PP, SMT SEETHA S
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
01.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(Crl.).No.828 of 2025
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P.V.KUNHIKRISHNAN, J
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W.P.(Crl.) No.828 of 2025
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Dated this the 01st day of July, 2025
JUDGMENT
The above Writ Petition(Crl.) is filed seeking the following reliefs:
"(i)Issue a writ of mandamus or any other appropriate writ, order or direction commanding respondent No 5 to register a criminal case based on the petitioner's complaint (Exhibit P4) and to conduct a fair and proper investigation forthwith;
(ii) Direct the 3rd respondent (NRI Cell) to take appropriate action in accordance with G.O. (MS) No.156/2005/Home dated 07.06.2005 in relation to the fraud committed against the petitioner by respondents 6 and 7;
(iii) Issue a direction to the 3rd and 4th respondents to ensure steps are taken to trace, apprehend and prosecute respondents 6 and 7, who have committed economic offence and absconded from Qatar to India;
(iv) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the interests of justice." [SIC]
2. The main prayer in this Writ Petition is to issue a direction to the 5th respondent to register a criminal case based W.P.(Crl.).No.828 of 2025 4 2025:KER:48951 on the petitioner's complaint in Ext.P4 and to conduct a fair and proper investigation. The second prayer is to issue a direction to the 3rd respondent to take appropriate action in accordance with G.O. (MS) No.156/2005/Home dated 07.06.2005 in relation to the fraud committed against the petitioner by respondent Nos.6 and 7. There are other related prayers also.
3. Heard the learned counsel appearing for the petitioner and the Public Prosecutor.
4. According to the petitioner, he filed a complaint before the Station House Officer concerned, which makes out a cognizable offence. No case is registered based on the same. It is also the case of the petitioner that he approached the superior officer also. Even then, there is no response. Hence, he is approaching this Court with writ petition under Article 226 of the Constitution of India. Section 173(4) of the BNSS reads like this:
"173(4). Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the W.P.(Crl.).No.828 of 2025 5 2025:KER:48951 information referred to in sub-section (1), may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence failing which such aggrieved person may make an application to the Magistrate."
5. If a complaint is filed before a Station House Officer or an officer in charge of the Police Station, and thereafter, the officer is not taking any action, the aggrieved person can approach his superior officer with the complaint. If the superior officer is also not considering that complaint, the remedy of the petitioner is to make an application before the jurisdictional Magistrate Court. In such circumstances, this Court need not entertain this writ petition. The counsel for the petitioner submitted that the Qatar Police already registered a case and therefore, the Kerala Police W.P.(Crl.).No.828 of 2025 6 2025:KER:48951 is also bound to register a case. That is why I observed that, if the Police authorities are not taking any action, the petitioner can approach the jurisdictional Magistrate Court with appropriate relief. Therefore, this writ petition need not be entertained at this stage.
6. The counsel for the petitioner relied the judgment of the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others [AIR 1999 Supreme Court 22 and the judgment of this Court dated 07.10.2021 in WP(C) No.19365/2021. In all those cases, the Apex Court and this Court observed that the discretionary jurisdiction can be used even if there is an alternative remedy. It is not a rule that in all cases this Court should exercise the discretionary jurisdiction under Article 226 of the Constitution of India, when there is an alternative remedy. When Section 173(4) of the BNSS clearly states that the petitioner can approach the jurisdictional court with an application, this Court need not entertain a writ petition to issue direction to a Station House Officer to register an FIR. W.P.(Crl.).No.828 of 2025 7
2025:KER:48951 Therefore, the prayers in this Writ Petition need not be entertained. The petitioner is granted liberty to approach the jurisdictional Magistrate Court with appropriate complaint, in accordance with law, if he advised to do so.
With the above observation, this Writ Petition(Crl.) is disposed of.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE nvj W.P.(Crl.).No.828 of 2025 8 2025:KER:48951 APPENDIX OF WP(CRL.) 828/2025 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE RECEIPT ISSUED BY THE DHUKAN BANK, QATAR SHOWING THE TRANSFER OF 20,000/QATAR RIYAL TO THE 7TH RESPONDENT ON 18.3.2025 EXHIBIT P2 TRUE COPY OF THE RECEIPT ISSUED BY THE DHUKAN BANK, QATAR SHOWING THE TRANSFER OF 50,000/QATAR RIYAL TO THE 7TH RESPONDENT ON 18.3.2025 EXHIBIT P3 TRUE COPY OF THE COMPLAINT GIVEN BY THE PETITIONER TO THE QATAR PROSECUTION DEPARTMENT ALONG WITH ITS RECEIPT AND ENGLISH TRANSLATION EXHIBIT P4 TRUE COPY OF THE COMPLAINT GIVEN BY THE PETITIONER TO THE 5TH RESPONDENT ON 18.4.2025 EXHIBIT P5 TRUE COPY OF THE RECEIPT ISSUED BY OFFICE OF THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF THE EMAIL COMPLAINT GIVEN BY THE PETITIONER TO THE INDIAN EMBASSY AT QATAR ON 10.6.2025 EXHIBIT P7 TRUE COPY OF THE MAIL FORWARDED BY THE INDIAN EMBASSY DATED 10.6.2025 EXHIBIT P8 TRUE COPY OF THE SCREENSHOT OF THE REPLY GIVEN BY THE 4TH RESPONDENT EXHIBIT P9 TRUE COPY OF THE SCREEN SHOT OF REPLY GIVEN BY THE 3RD RESPONDENT EXHIBIT P10 TRUE COPY OF THE SCREENSHOT OF THE WEBSITE OF KERALA POLICE REGARDING THE FUNCTIONS OF NRI CELL //TRUE COPY// PA TO JUDGE