Kerala High Court
John M.Kuriakose vs The District Police Chief on 23 July, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 23RD DAY OF JULY 2020 / 1ST SRAVANA, 1942
WA.No.902 OF 2020
[AGAINST JUDGMENT DATED 17.03.2020 IN WP(C) NO.4476/2020(H) OF
HIGH COURT OF KERALA.]
APPELLANT/PETITIONER:
JOHN M.KURIAKOSE, AGED 45 YEARS,
S/O. JOHN, MYLAKATTU VEEDU, PUTHUPALLY VILLAGE,
KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN-686 001.
BY ADVS. SRI.M.V.THAMBAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.B.BIPIN
SRI.ARUN BOSE
SMT.RENI JAMES
RESPONDENTS/RESPONDENTS:
1 THE DISTRICT POLICE CHIEF,
OFFICE OF THE DISTRICT POLICE CHIEF, KOTTAYAM,
KOTTAYAM DISTRICT, PIN-686 001.
2 THE STATION HOUSE OFFICER,
KOTTAYAM EAST POLICE STATION, KOTTAYAM,
KOTTAYAM DISTRICT, PIN-686 001.
BY SENIOR GOVT. PLEADER SRI. SURIN GEORGE IPE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.07.2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.902 of 2020 2
JUDGMENT
Dated this the 23rd day of July, 2020 S.Manikumar, CJ Instant writ appeal is filed against judgment dated 17.03.2020 in W.P. (C) No.4476 of 2020, by which a learned single Judge of this Court, disposed of the writ petition, by observing thus:
"......There is not even an allegation that the accused had entered the sit-out of the house. To attract an offence of "house trespass" punishable under Section 452 of I.P.C., the "house trespass" as defined in Section 442 should be there and house trespass could be there only if the accused enters into or remains in any building, tent or vessel used as a human dwelling. It cannot be said that the car porch of the petitioner is a part of house used by the petitioner as human dwelling. Under the circumstances, there is no reason to order further investigation in this case. At the same time, untrammeled by what is observed in this judgment, if the trial court during trial, finds that an offence punishable under Section 452 of I.P.C. is attracted, nothing impedes the learned Magistrate from altering the charge. With these observations, the Writ Petition is disposed of."
2. Short facts leading to the instant writ appeal are that,- on the basis of a statement given by wife of the appellant/writ petitioner that the accused have trespassed into the car porch of the house used by him and caused damage to his car bearing Registration No. KL-05-S-1625, which was parked therein, Station House Officer, Kottayam East Police Station W.A.No.902 of 2020 3 (respondent No.2), has registered Crime No.1373 of 2017, alleging offences punishable under Sections 506(i), 427, 143, 144, 147, 448 and 294(b) r/w. Section 149 of the IPC.
3. After completion of the investigation, cognizance has been taken under Sections 448, 427, 143, 144, 294(b), 147, 506(i) r/w. Section 149 of the IPC and the same is pending in C.C. No.1464 of 2016, on the file of the Judicial Magistrate of First Class-I, Kottayam.
4. Grievance of the appellant is that in the final report, only the offence under Section 448 of the IPC has been incorporated, whereas Section 452 of the IPC has not been incorporated. According to the appellant, even going by the allegations, the accused in the crime have committed house trespass. Hence, he made Exhibit-P3 representation dated 27.04.2019 before the District Police Chief, Kottayam (respondent No.1), requesting him to order further investigation. However, the 1st respondent has not taken any action in the matter and that C.C. No.1464 of 2016 was listed for trial from 15.02.2020 onwards.
5. Being aggrieved, W.P.(C) No.4476 of 2020 has been filed seeking for issuance of a writ of mandamus, directing the 1 st respondent - District Police Chief, Kottayam, to consider Exhibit-P3 request dated 27.04.2019, and to order further investigation in Crime No.1373 of 2016 of Kottayam East Police Station, through a superior officer.
W.A.No.902 of 2020 4
6. Writ court, by the judgment impugned, disposed of the writ petition with an observation that if, during trial, the learned Magistrate finds that an offence punishable under Section 452 of the IPC is attracted, nothing impedes him from altering the charge.
7. On the above pleadings, appellant has contended that writ court has disposed of the said writ petition, declining to direct the 1 st respondent, to order further investigation in the crime and held that house trespass is not attracted in the present case, since the car porch of the house used by the appellant cannot be termed as a part of his house, as human dwelling and hence, Section 452 of the Indian Penal Code is not attracted. According to the appellant, the said finding of the learned single Judge is unsustainable.
8. Appellant has further contended that going by the definition of house trespass in Section 442 of the Indian Penal Code, entering into any part of the building used as human dwelling is sufficient to attract the said offence. Further, the car porch of a house is used as a place for custody of the property and in the present case, the accused has trespassed into the car porch and caused damage to the property of the appellant kept therein viz. his car. Hence, house trespass is squarely attracted in the present case.
9. Appellant has further contended that if it is proved that the accused have committed house trespass and that the same was committed after making preparation for causing hurt to, or for assaulting, or for wrongfully restraining, some person; or for putting some person in fear of W.A.No.902 of 2020 5 hurt, assault or wrongful restraining, the offence under Section 452 is squarely attracted. The illegal act of the accused was with a view of putting the appellant and his wife in fear of hurt, assault and wrongful restraining. Hence, dismissal of the writ petition is erroneous and warrants interference by this Court. In the above circumstances, appellant has prayed that till the 1st respondent takes a decision on Exhibit-P3 request dated 27.04.2019, submitted by him seeking further investigation in the subject crime, the trial in C.C. No.1464 of 2016 be stayed.
10. Referring to Section 173(3) of the Code of Criminal Procedure, Mr. M.V.Thampan, learned counsel for the appellant, submitted that the 1 st respondent ought to have issued directions for further investigation. Inviting our attention to sub-section (8) of Section 173 of the Cr.P.C., learned counsel for the appellant further submitted that the 1 st respondent ought to have directed further investigation, when the Station House Officer includes Section 442 of the IPC in the final report.
11. Per contra, placing reliance on the decision in Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another (AIR 2019 SC 5233), Mr. Surin George Ipe, learned Senior Government Pleader, submitted that the appellant ought to have approached the learned Magistrate, by filing a protest petition and writ petition is not the appropriate remedy.
12. Heard learned counsel for the parties and perused the material available on record.
W.A.No.902 of 2020 6
13. Exhibit-P3 representation dated 27.04.2019 submitted by the appellant before the Hon'ble Police Chief, Kottayam, reads thus:
"BEFORE THE HON'BLE POLICE CHIEF KOTTAYAM PETITIONER John M. Kuriakose, Aged 45 years, S/o. John, Mylakkattu Veedu, Puthupally Village, Kottayam Taluk, Kottayam District, PIN-686 001.
RESPONDENTS
1. Santhosh Varghese
2. M.U. Vrgheese
3. Sam Vargheese
4. Satheesh Vargheese
5. Isac P.C. Sir, The 2nd accused M.U.Vrgheese is the son of the M.V.Uthup's fathers brother. The said M.V.Uthup is an in the Kuwait nursing recruitment scam. The accused number 1, 3 and 4 are sons of the 2nd accused. The 3rd accused Sam Varghese and his wife are employees of a bakery owned by the above said Uthup. The accused number 1 and 2 are involved in many financial economic offences happened in Puthuppally and there are cases pending against them for that. The 5th accused is a dependent and helper of the said M.V.Uthup and he is an accused in a case, where he attempted to kill one M. V. Kora Kannirammood near Puthuppally in 1991 with sword stick.W.A.No.902 of 2020 7
M.V.Uthup is the 1st accused in Crime Number 665/2009 of East Police Station, Kottayam where offence under Section 307 of IPC and sections of the Arms Act are alleged, for attempting kill me. The said crime is now pending as C.C. No. 319/2013 before the Additional Sessions Court Kottayam and the trial of the case is proceeding with. The opposite parties the said case are threatening and filing false case against me for settling the said case with M.V.Uthup. The 5th accused, his wife and their son have got Rs.15,000,00 each (total Rs.45,000,00/-) as loan from the Puthuppally Service Co-operative Bank on the security of the said M.V.Uthup's property.
While so, the 1st accused on 20.09.2011 at 11 pm, trespassed to the car porch with a Bullet bike and repeatedly hit on the back side of the petitioner's husbands Maruthi 800 car bearing No. KL 05 Z 1625 and caused damage to the vehicle. Thereafter, the accused 1 to 5 formed unlawful assembly in front of the locked gate of the petitioner property at 12 pm and shaked the gate, abused her with filthy language and threatened to kill her husband. Further, they picked up stones from the retaining wall and thrown to the car lying in the porch and caused damage to the rear side glass, break light and for which, a crime was registered as Crime No.1373/2016 at East Police Station, Kottayam.
I and my wife have clearly stated before the investigation officer that the above incident was happened at the knowledge and aid of the M.V.Uthup who is the 1st accused in 665/2009 of East Police Station, Kottayam. However, the investigation officer has not properly recorded my statement, has not conducted any investigation regarding the conspiracy, has not collected any scientific evidence and like this, he made the investigation a gimmick. The investigation officer has completed the W.A.No.902 of 2020 8 investigation within 9 days and a charge sheet was filed before the court improperly due to the political and monetary influence of M.U.Uthup. On 26.04.2019, the 1st accused has called me four times from his mobile number 9961883698 to my mobile number 8606177885 to settle the cases, and I have attended his calls at 2.04 pm and 2.06 pm, and by these calls, he threatened me to settle all the cases.
Hence I request your kindness to order further investigation in the crime.
Place : Kottayam
Date 27.04.2019 Respectfully
John M Kuriakose"
14. Sections 158 and 173 of the Code of Criminal Procedure, 1973 are extracted hereunder:
"158. Report how submitted.- (1) Every report sent to a Magistrate under section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf.
(2) Such superior officer may give such instructions to the officer in charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate."
"173. Report of police officer on completion of investigation.--(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the W.A.No.902 of 2020 9 information was recorded by the officer in charge of the police station.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating--
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C 2 [376D or section 376E of the Indian Penal Code (45 of 1860)].
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.W.A.No.902 of 2020 10
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report--
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to W.A.No.902 of 2020 11 the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
15. Section 173(3) of the Cr.P.C. is not applicable to the case on hand, as the State Government have not issued any special or general order appointing any superior officer.
16. If a complainant/victim is not satisfied with the report of the police filed before the learned Magistrate, then he can be said to be a person aggrieved. Such a person has a remedy under the Code of Criminal Procedure. He can submit a petition to the learned Magistrate, expressing his grievance, like in the case on hand, failure of the Station House Officer to properly investigate into the allegations of house trespass and inclusion of the offence under Section 442 of the IPC. Such petition is ordinarily called as a Protest Petition.
17. Material on record discloses that the learned Magistrate has taken cognizance of the case in the year 2016 as C.C. No.1464/2016 under Section 448 of the IPC. No protest petition has been filed. Writ petition has been filed in the year 2020, for a mandamus directing the District Police Chief, Kottayam district (respondent No.10), to consider Exhibit-P3 request and to order further investigation in Crime No. 1373/2016 of Kottayam East Police Station, through a superior officer. As observed above, Section 173(3) of the W.A.No.902 of 2020 12 Cr.P.C. is not attracted in the case on hand. Further, in the light of the scheme of Code of Criminal Procedure, a writ petition for the abovesaid prayer is not maintainable.
In light of the above discussion and decision, we are of the considered view that the appellant has not made out a case justifying interference with the impugned judgment, in this appeal. Writ appeal fails and accordingly, dismissed. No costs.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Krj //TRUE COPY// P.A. TO C.J.