John Jacob vs State Of Kerala on 24 September, 2024

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Kerala High Court

John Jacob vs State Of Kerala on 24 September, 2024

W.P.(Crl.)No.480 of 2024 was filed seeking various reliefs including direction to the authorities to register FIR against the party respondents under relevant Sections of the IPC, court monitored investigation, transfer of investigation to Crime Branch, exhumation of the body of the brother of the 1st petitioner, preservation of evidence, etc. Grievance of the petitioners is regarding the death of late Mr.Oommen Jacob, brother of the 1 st petitioner and the son of the 2nd petitioner. Case of the petitioners in short is that the death of late Mr.Oommen Jacob was a murder, however, no proper action has been taken by the police despite petitions submitted to various authorities. The 2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 10 petitioners filed Ext.P1 complaint before the Judicial First Class Magistrate, Ranni. The learned Magistrate, on 21.2.2024, passed an order directing registration of FIR for unnatural death. Vechuchira police registered Crime No.76/2024 under Section 174 Cr.P.C. on the basis of the complaint forwarded by the learned Magistrate and order dated 21.02.2024. Petitioners are dissatisfied with the registration of crime under Section 174 Cr.P.C. Relying on the judgment of the Hon'ble Supreme Court in Lalita Kumari v. State of UP [2014 (2) SCC 1] petitioners contend that police ought to have registered FIR under Section 154 Cr.P.C, arraying the respondents 2 to 15 as accused. The writ petition was filed under the above mentioned circumstances.

2. The learned Single Judge, on 22.07.2024, passed an interim order as follows:-

2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 11 "Issue notice before admission to respondents 2, 4, 5 & 6 by Speed post, returnable within 7 days.

Notice to respondents 3 and 7 to 15 is dispensed with for the time being, since this Court is not convinced with the reasons for arraying them as respondents."

3. Petitioners were not satisfied with the above said order. Therefore, they preferred W.A.No.1373/2024 against the order dated 22.07.2024.

4. The 1st petitioner appeared as party in person. When the writ appeal was considered on 03.09.2024, we sought the views of the 1 st petitioner and the learned Public Prosecutor and decided to tag W.P. (Crl.)No.480/2024 along with W.A.No.1355/2024 and passed an order to post both cases together.

5. We heard the 1st petitioner elaborately on 12.9.2024. Learned Public Prosecutor was also heard. We have gone through the pleadings and documents.

2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 12

6. We do not wish to deal with the facts elaborately. As noted already, the petitioners seriously suspect that the death of late Oommen Jacob was not a natural death. According to them, it was a murder. They therefore demand that a case for murder should be registered against the persons who have been arrayed as accused in Ext.P1 complaint. Various reasons are stated in the complaint in support of the prayers sought in the complaint. On perusal of the complaint and hearing the 1 st petitioner, the learned Magistrate was satisfied that FIR needed to be registered for unnatural death. Pursuant to the direction issued by the learned Magistrate, police registered crime under Section 174 Cr.P.C. The learned Senior Government Pleader filed a memo to produce a statement of the SHO concerned. We have gone through the statement of the SHO. It is explained in the statement that late Oommen Jacob was in a very fragile health 2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 13 condition with chronic diabetics, low BP, kidney failure, etc. He had underwent amputation and was confined to a wheel chair. The SHO has explained that after registration of crime under Section 174 Cr.P.C, notice was issued to the 1 st petitioner for interrogation. The 1st petitioner refused to give any statement and to co-operate with the investigation. The 1st petitioner also objected to recording of the statement of the 2nd petitioner. It is also stated that steps were taken for recording statements of the petitioners under Section 164 Cr.P.C. The petitioners did not co-operate for that also. Facts revealed through the investigation so far conducted have been narrated in the statement.

7. Registration of FIR under Section 174 Cr.P.C. and 154 Cr.P.C. are totally different. In Krishnan.K. v. State of Kerala [2023 (4) KLT 621] a learned Single Judge of this Court elaborately considered 2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 14 the distinction between investigation after registration of FIR under Section 154 and investigation in the inquiry under Section 174 Cr.P.C. We need not retell the law in this regard. However, it is profitable to refer to the conclusions in the said decision by the learned Single Judge. The learned Single Judge in paragraph 39 of the judgment arrived at the following conclusions:-

"39. The afore discussions lead me to the following conclusions:

(1) The provisions of S. 174 to 176 of the Code form a complete Code in themselves. (2) S.174 of the Code contemplates an inquiry, which is limited as the purpose of the inquiry is to find out the apparent cause of death. (3) The FIR registered under S.174 of the Code cannot be construed as an FIR within the meaning of the provisions of S.154 of the Code. The purpose of registration of the FIR under S. 174 of the Code is over with the preparation of the report containing the apparent cause of death as provided in S.174(2) of the Code.

2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 15 (4) The phrase "investigation" used in S.174 of the Code is only an "investigation in the inquiry". This investigation's scope is limited to finding out the apparent cause of death.

(5) The report under S.174(2) of the Code is not a 'final report' under the Code. Such a report is not treated as "positive or negative". (6) The report of inquest under S.174(2) of the Code and the inquest report prepared by the Executive Magistrate shall not in anyway interfere with the power and freedom of the Police to investigate the commission of a cognizable offence. (7) The report under S.174 of the Code does not decide the rights and liabilities of the parties involved.

(8) The investigation after registration of the FIR within the meaning of the provisions of S. 154 of the Code is an investigation into the commission of a cognizable offence which ends in the submission of the report under S.173(2) of the Code. This investigation cannot be equated with the investigation under S.174 of the Code. (9) The investigation after registration of FIR under S.154 of the Code may result in either of the circumstances described in S. 169 or 170 of the Code by way of filing a report under S.173(2) of the 2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 16 Code before the jurisdictional Magistrate. (10) Registration of an FIR within the meaning of the provisions of S. 154 of the Code after the registration of the FIR under S.174 of the Code is legal and sustainable as the latter cannot be construed as an FIR in the eye of law."

( Emphasis added )

8. If during the course of investigation in the inquiry under Section 174 Cr.P.C. any cognizable offence is disclosed a fresh FIR can be registered under Section 154 Cr.P.C. and investigation can be conducted. In the case on hand, the police have registered crime under Section 174 Cr.P.C. and investigation/ inquiry is pending.

9. As explained by the learned Single Judge of this Court in Krishnan's case if commission of any cognizable offence is disclosed during the investigation pursuant to the registration of crime under Section 174 of Cr.P.C, appropriate action to register fresh FIR under Section 154 of Cr.P.C. can be taken by the police.

2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 17 Therefore, we find that the grievance of the writ petitioners is premature. The writ petitioners have to co-operate with the ongoing investigation. If they are dissatisfied with the investigation, appropriate remedies under law can be invoked by them. We therefore find it unnecessary to interfere with the order passed by the learned Magistrate at this stage.

10. We note that in the BNSS, Section 173 corresponds to Section 154 of Cr.P.C. and Section 194 corresponds to Section 174 of Cr.P.C. Since there is no significant change in the statutory scheme regarding inquiry about suicide, etc. in the BNSS, the law laid down in Krishnan shall govern the matter. We therefore dispose the writ appeal as well as W.P.(Crl) with the observation that the investigating officer shall follow the law laid down by this Court in Krishnan v. State of Kerala [2023 (4) KLT 621] in the investigation and appropriate steps shall be 2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 18 taken if commission of any cognizable offence is disclosed during the investigation. The petitioners shall co-operate with the ongoing investigation. Disposal of these cases shall not cause any prejudice to the petitioners to pursue appropriate remedies in accordance with law, if necessitated in future.

With these observations and directions W.P.(Crl.) as well as the Writ Appeal are disposed of.

Sd/-

A.MUHAMED MUSTAQUE, ACTING CHIEF JUSTICE Sd/-

S.MANU, JUDGE skj 2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 19 APPENDIX OF WP(CRL.) 480/2024 PETITIONERS' EXHIBITS Exhibit P1 SECTION 156(3) CRPC PETITION DATED 25TH JAN 2024 BEARING CMP NO. 489/2024 IN JFCM COURT RANNI Exhibit P2 POWER OF ATTORNEY OF 2ND PETITIONER DATED 7TH FEB 2019 APPOINTING 1ST PETITIONER AS HER ATTORNEY HOLDER Exhibit P3 URGENT COPY APPLICATIONS DATED 23RD FEB 2024 & 24TH FEB 2024 FOR ORDERS OF JFCM COURT RANNI IN EXHIBIT P1 PETITIONS Exhibit P4 FABRICATED DEATH CERTIFICATE DATED 27TH NOV 2023 OF DECEASED OOMMEN JACOB Exhibit P5 LETTER DATED 22ND JAN 2024 TO SP PATHANAMTHITTA SEEKING NEUTRAL INVESTIGATIONS Exhibit P6 1ST COMPLAINT DATED 21ST NOV 2023 TO SHO VECHOOCHIRA PS INFORMING ABOUT FOUL PLAY Exhibit P7 DETAILED COMPLAINT DATED 24TH NOV 2023 TO SHO VECHOOCHIRA (13TH RESPONDENT) REGARDING FOUL PLAY IN THE DEATH OF DECEASED Exhibit P8 COMPLAINT DATED 29TH NOV 2023 TO SP PATHANAMTHITTA REGARDING FOUL PLAY Exhibit P9 COMPLAINT DATED 5TH DEC 2023 TO DGP KERALA REGARDING FOUL PLAY IN THE DEATH OF DECEASED OOMMEN JACOB 2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 20 Exhibit P10 FABRICATED FIR NO. 76/2024 CREATED BY SHO VECHOOCHIRA PS ON 23RD FEB 2024 WITHOUT CONFIRMING WITH COMPLAINANT ABOUT THE ACCURACY & DETAILS OF INFORMATION INCLUDED THEREIN Exhibit P11 Impugned Order of JFCM Ranni dated 21st February 2024 Exhibit P12 Police Letter dated 18th Nov 2023 to Assisi Hospital claiming death due to diabetes Exhibit P13 False and Fabricated Will Obtained from deceased Oommen by Primary Beneficiary, the 2nd Respondent RESPONDENTS' EXHIBITS EXHIBIT R2(a) A true copy of the Medical Record of Late Mr. Ommen Jacob issued from Mar Sleeva Medicity palai EXHIBIT R2(b) Photograph featuring Ommen Jacob alongside the respondents 2,5 and 6 EXHIBIT R2(c) A true copy of the Joint Will registered as Will No.88 of 2008 in the Sub Registrar Office, Erumely on 10/06/2008 EXHIBIT R2(d) A true copy of the Plaint in O.S.No.229 of 2021 filed by Late Mr. Ommen Jacob before the Munsiffs Court, Kanjirapally EXHIBIT R2(e) A true copy of the Plaint in O.s.No.120 of 2021 filed by the Petitioners before the Sub Court, Kottayam 2024:KER:71085 W.P.(Crl.)No.480 of 2024 & W.A.No.1355 of 2024 21 EXHIBIT R2(f) A true copy of I.A.No.20 of 2023 in O.S.No.120 of 2021 filed by Ommen Jacob before Sub Court, Kottayam EXHIBIT R2(g) A true copy of the objection filed by the 1st Petitioner in I.A.No.20 of 2023 in O.S.No.120 of 2021 EXHIBIT R2(h) A true copy of summons for appearance issued to Late Mr. Ommen Jacob by the Consumer Disputes Redressal Commission Forum, Alappuzha in C.C. No.423 of 2023 EXHIBIT R2(i) A true copy of the Will executed by the deceased Ommen Jacob registered as Document No.74/III/2023 of Sub Registrar Office, Koovapally

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