Kerala High Court
B.Vinod vs State Of Kerala on 11 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943
WP(C) NO. 5204 OF 2014
PETITIONERS:
1 B.VINOD
KAZHAKOOTAM PS, THIRUVANANTHAPURAM.
2 A S SAJI SANKAR
FORMERLY WORKING AS SI OF POLICE,
KAZHAKOOTAM PS, THIRUVANANTHAPURAM.
3 A.F.FAZALUDEEN
ASI OF POLICE, CONTROL ROOM, KAZHAKUTTAM.
4 SHIBU S.V, FORMERLY GSI OF POLICE,
KAZHAKUTTOM PS,THIRUVANANTHAPURAM.
BY ADVS.SRI.SRI.SUMAN CHAKRAVARTHY
SRI.A.S.ANILKUMAR
SMT.BREJITHA UNNIKRISHNAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY HOME SECRETRY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 STATE POLICE CHIEF
POLICE HEAD QUARTERS, THIRUVANANTHAPURAM 695 014.
3 THE DEPUTY SUPERINTENDENT OF POLICE
ATTINGAL, THIRUVANANTHAPURAM DIST. 695101.
4 SUDHIN K S,
ROHINI NIVAS, MEPARM, CHEMPAZHANTHI P.O.,
THIRUVANANTHAPURAM. - 695 587.
R4 BY ADV SRI.SHAJIN S.HAMEED
R1 TO R4 BY GOVT. PLEADER SMT.SHYNIMOL
THIS WRIT PETITION (CIVI) HAVING BEEN FINALLY HEARD ON
16.02.2022 , THE COURT ON 11.03.2022 DELIVERED THE FOLLOWING:
WP(C) No.5204 of 2014 2
VIJU ABRAHAM, J.
.................................................................
W.P.(C) No.5204 of 2014
.................................................................
Dated this the 11th day of March, 2022
JUDGMENT
The above writ petition is filed challenging Exhibit P6 order dated 30.01.2014 by the State Police Complaints Authority (hereinafter referred to as "the Authority") on a complaint filed by the 4th respondent against the petitioners herein alleging assault and registration of a false case against him.
2. Brief facts necessary for the disposal of the present writ petition are as follows: Petitioners are police officials who are respondents 1 to 4 in O.P No. 97 of 2013 before the State Police Complaints Authority. The averment in Exhibit P1 complaint before the Authority is that on 17.02.2013 the 4th respondent herein was riding a motorcycle bearing Registration No. KL 01 V 5686 along with his friend without wearing a helmet and when he reached near the police check post where the 2nd petitioner along with police party was checking the vehicles, one policeman asked him to stop the bike all of a sudden and that the 3rd petitioner WP(C) No.5204 of 2014 3 caught hold on the handle of the bike which resulted in the bike getting accelerated and thereby hit the 3rd petitioner and he along with the 4th respondent fell down. Thereupon, petitioners assaulted the 4th respondent and his friend. Thereafter, a crime was registered against the 4th respondent and his friend as Crime No. 172 of 2013 of Kazhakootam Police Station alleging commission of offences punishable under Sections 279, 332, 427 and 34 IPC r/w Section 188 (3) (1) and 181 of the Motor Vehicles Act. Later Exhibit P11 final report was filed in the said crime before the Judicial First Class Magistrate Court II, Attingal. It is the case of the petitioners that Exhibit P1 complaint before the State Police Complaints Authority is a false one and it is only an attempt of the 4th respondent to wriggle out from the criminal prosecution. Detailed written statements were filed by the petitioners before the Authority as Exhibit P2 to P5. It is contended that the Authority without considering the contentions raised by the petitioners and without appreciating the evidence adduced in its correct perspective, held as per Exhibit P6 order dated 30.01.2014 that the 4th respondent suffered bodily harm at the hands of the petitioners and that his mobile was misappropriated and therefore directed to register a criminal case against the WP(C) No.5204 of 2014 4 petitioners under Sections 323, 324, 325, 403, r/w 34 IPC. It was further ordered that Crime No. 172 of 2013 wherein the 4th respondent is arrayed as an accused has to be reinvestigated by the CBCID. It is aggrieved by Exhibit P6 order of the Authority that the present writ petition is filed. Even though this writ petition was filed as early as 2014, no counter affidavit is seen filed by any of the respondents.
3. Heard Shri. Suman Chakravarthy, the learned counsel appearing for the petitioners, Smt. Shiny Mol, learned Government Pleader appearing for respondents 1 to 3 and also Shri. Shajin. S. Hameed, learned counsel appearing for the 4th respondent.
4. Learned counsel for the petitioners, Shri. Suman Chakravarthy raised the following contentions: The Authority lacks jurisdiction to entertain Exhibit P1 complaint in view of Section 110 (1) (i) & (ii) of the Kerala Police Act, 2011, and therefore Exhibit P6 is issued without jurisdiction. The petitioners are entitled to protection under Section 113 of the Kerala Police Act. The Authority has no power to order reinvestigation of a case that is now pending before a competent court. The power conferred on the Police Complaint Authority is only to recommend departmental inquiry and registration of a criminal case. A WP(C) No.5204 of 2014 5 departmental inquiry has already been initiated and has culminated in the exoneration of the charges leveled against the petitioners. The 4th respondent has already filed Exhibit P12 complaint against the petitioners as C.M.P. No.970 of 2013 and that the said case is now pending as C.C. No. 291 of 2014 before the Judicial First Class Magistrate Court II, Attingal and therefore there is no scope for registration of a further crime. The Authority did not consider the pendency of Exhibit P12 complaint even though the same was specifically urged. The evidence of the doctors will unequivocally prove that no injury is caused as contended by the 4th respondent in Exhibit P1 complaint before the Authority. The petitioners have long years of unblemished service and they are totally innocent and the allegations raised against them are false and incorrect.
5. Per contra, the learned counsel for the 4th respondent, Shri. Shajin. S. Hameed contended that evidence adduced before the Authority will categorically prove the atrocity committed by the petitioners against the 4th respondent. He further contended that the Authority is well within its powers to entertain Exhibit P1 complaint. The filing of Exhibit P12 private complaint will not in any manner affect the right of the Authority from issuing WP(C) No.5204 of 2014 6 appropriate direction for registration of a crime when it is found to be appropriate in the facts of the case and that further proceedings in the said crime is stayed by this Court in Crl. R.P No. 795 of 2014 filed by the petitioners herein. The Authority issued Exhibit P8 order after considering all the contentions raised by both parties and therefore it is not liable to be interfered with.
6. The first question to be considered is as to the jurisdiction of the Authority to entertain Exhibit P1 complaint. The petitioners contended that in view of Section 110 (1) (i) & (ii) of the Kerala Police Act, 2011 the Authority lacks jurisdiction to entertain the same. Section 110 (1) (i) & (ii) read as follows:
"110. Police Complaints Authority.-(1)The Government shall constitute a State Police Complaints Authority for examining and inquiring the,-
(i) complaints on all types of misconduct against Police Officers of and above the rank of Superintendent of Police;
(ii) grave complaints against officers of other ranks in respect of sexual harassment of women in custody or causing death of any person or inflicting grevious hurt on any person or rape, etc."
Even though Sub-Clause (i) of Section 110 (1) of the Kerala Police Act, 2011 only empowers the State Authority to inquire into complaints of all types of misconduct against police officers of and above the rank of Superintendent of Police, Sub-Clause (ii) of Section 110 (1) gives ample power to inquire into grave complaints WP(C) No.5204 of 2014 7 against officers of other ranks in respect of sexual harassment of women in custody or causing the death of any person or inflicting grievous hurt on any person or rape, etc. A perusal of Exhibit P1 complaint would show that the contention of the 4th respondent is that the injuries alleged, especially the injury caused to the left ear of the 4th respondent will come under the definition of grievous hurt as explained in Section 320 IPC. When a complaint is filed alleging the commission of offences punishable under Section 325 IPC, I feel that the said complaint could be entertained by the State Police Complaints Authority in view of Sub-Clause (ii) of Section 110 (1) of the Act. A similar view was taken by this Court in Gopakumar v. The State Police Complaints Authority, 2019 (3) KLT 22. Further, a Division Bench of this Court in Rajendran Pillai v. State Police Complaints Authority, 2019 (3) KLT 908 held that as the Act does not envisage the State Authority to be the hierarchically superior authority to the District Authority to exercise appellate/revisional powers, even in a case where the State Authority has exercised the jurisdiction of the District Authority, the complainant will not in any manner be prejudiced since such a process will not occasion deprivation of any statutory remedy of appeal/revision. Therefore, the contention of WP(C) No.5204 of 2014 8 the petitioners that Exhibit P1 complaint is not maintainable before the State Police Complaints Authority is without any basis.
7. Further contention of the petitioners is that the direction in Exhibit P6 order of the Authority to reinvestigate Crime No. 172/2013 of Kazhakootam Police Station by the CBCID, in which the 4th respondent is arrayed as one of the accused is absolutely illegal. It is a fact that the investigation in the said crime is completed and Exhibit P11 final report has been filed before the Judicial First Class Magistrate Court-II, Attingal. It is settled law that power to order/direct "reinvestigation" exclusively falls within the domain of higher courts, that too in exceptional cases and that such power has to be exercised by the superior courts very sparingly and with great circumspection. The Apex Court in Vinay Tyagi v. Irshad Ali @ Deepak and Others, (2013) 5 SCC 762 held in Paragraphs 43 and 45 of the said judgment as follows:
"43. At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct "further investigation", "fresh" or "de novo" and even "reinvestigation", "Fresh", "de novo" and "reinvestigation" are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection."WP(C) No.5204 of 2014 9
"45. The power to order/direct "reinvestigation" or "de novo"
investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigation agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the court may, by declining to accept such a report, direct "further investigation", or even on the basis of the record of the case and the documents annexed thereto, summon the accused."
(underline supplied) The said view has been reiterated by the Apex Court in Chandra Babu @ Moses v. State Through Inspector of Police and Others, (2015) 8 SCC 774. The Police Complaints Authority has been constituted by an amendment to the Kerala Police Act, 1960 in implementation of the directions issued by the Apex Court in Prakash Singh and Others v. Union of India and Others, (2006) 8 SCC 1 to all State Governments to constitute a Police Complaints Authority at District Level as well as State Level. That being so, the Authority can decide on a complaint only in accordance with the terms of the provisions of the Act. In view of the above, I am of the opinion that the State Police Complaints Authority has no power to order reinvestigation of a pending crime, and therefore the direction to re-investigate Crime No. 172/2013 of Kazhakootam Police Station (now pending as WP(C) No.5204 of 2014 10 C.C.No.970 of2013 before the Judicial First Class Magistrate Court, Attingal) by the CBCID cannot be sustained.
8. The other contention raised by the petitioners is that the direction issued by the Authority to the Government and the State Police Chief to register a case against them is absolutely arbitrary and unjust, in as much as the specific contentions raised by the petitioners were not taken into consideration by the Authority while issuing Exhibit P6 order. It is the case of the petitioners that it is specifically averred in Exhibits P2 to P5 written statements filed by them before the Authority that a private complaint has been filed by the 4th respondent against the petitioners alleging commission of offences punishable under Sections 324, 326, 342, r/w Section 34 IPC and that the case is now pending as C.C. No. 291 of 2014 before the Judicial First Class Magistrate Court II, Attingal. Even though it was specifically contended before the Authority regarding the pendency of the private complaint as against the petitioners on a similar set of allegations, the said aspect was not taken into consideration or even dealt with by the Authority while issuing Exhibit P6 order. Further, it is contended that the direction issued by the Authority as per Exhibit P6 order to register a case against the petitioners WP(C) No.5204 of 2014 11 even alleging commission of offence punishable under Section 403 IPC based on the allegation of the 4th respondent that the mobile phone was taken into custody by the 2nd petitioner and it is not returned back so far and the same amounts to dishonest misappropriation of property, is on a wrong appreciation of facts. It is the case of the petitioners that the mobile phone in question was produced before the JFCM-II, Attingal in Crime No. 172 of 2013 along with Exhibit P7 property list, and the said aspect was not properly considered by the Authority while issuing a direction to register a case against the petitioners as per Exhibit P6 order. It is also the contention of the petitioners that disciplinary proceedings were initiated in connection with the above allegation and that they have been exonerated of the charges leveled against them. It is also contended that Exhibit P8 medical certificate and Exhibit P9 O.P records will clearly prove lack of bonafide in filing Exhibit P1 complaint and the same was not properly considered by the Authority. After considering the rival contentions of both sides and on a perusal of Exhibit P6 order, I feel that these contentions were not considered or dealt with by the Authority while issuing Exhibit P6 order. Therefore, in the facts and circumstances of this case, I am of the view that the State Police Complaints Authority WP(C) No.5204 of 2014 12 should reconsider the matter afresh after taking into consideration the various contentions of the petitioners as enumerated above. I, therefore, set aside Exhibit P6 order of the State Police Complaints Authority dated 30.01.2014 in O.P No. 97 of 2013 with a consequential direction to the said Authority to reconsider the matter afresh with notice to the petitioners and the 4th respondent and finalize the proceedings within a period of 4 months from the date of receipt of a copy of the judgment.
With the above-said directions, the writ petition stands disposed of.
Sd/-
VIJU ABRAHAM, JUDGE WP(C) No.5204 of 2014 13 APPENDIX OF WP(C) 5204/2014 PETITIONER EXHIBITS EXT.P1: TRUE COPY OF THE COMPLAINT IN OP 97/13.
EXT.P2: TRUE COPY OF WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT.
EXT.P3: TRUE COPY OF WRITTEN STATEMENT FILED BY THE 2ND RESPONDENT.
EXT.P4: TRUE COPY OF WRITTEN STATEMENT FILED BY THE 3RD RESPONDENT.
EXT.P5: TRUE COPY OF WRITTEN STATEMENT FILED BY THE 4TH RESPONDENT.
EXT.P6: COPY OF ORDER DATED 30/01/2014 IN OP 97/13.
EXT.P7: TRUE COPY OF THE PROPERTY LIST IN CRIME NO.172/13.
EXT.P8: TRUE COPY OF THE MEDICAL CERTIFICATE DATED 17/2/13.
EXT.P9: TRUE COPY OF THE OP RECORD DATED 18/02/13.
EXT.P10: TRUE COPY OF THE ORDER DATED 2/03/13 OF THE RAGE IG THIRUVANANTHAPURAM.
EXT.P11: TRUE COPY OF THE FINAL REPORT IN CRIME 172/13 OF KAZHAKOOTAM.
EXT.P12: TRUE COPY OF THE CMP NO.970/13 BEFORE THE JFMC ATTINGAL.
RESPONDENTS' EXHIBITS: NIL