Kerala High Court
K.K.Joshwa vs 1. State Of Kerala on 6 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
WP(CRL.) NO. 575 OF 2023
PETITIONER:
K.K.JOSHWA,
AGED 71 YEARS, S/O KUNJUMMEN, AGED 71,
KALEEKKAL, SNRA 81, SURYA NAGAR, POWDIKONAM P.O.,
THIRUVANANTHAPURAM, PIN-695 588.
BY ADVS.NANDAGOPAL S.KURUP
ABHIRAM T.K.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
2 DISTRICT POLICE CHIEF,
THIRUVANANTHAPURAM CITY, THYCAUD P.O.,
THIRUVANANTHAPURAM, PIN-695 014.
3 STATION HOUSE OFFICER,
MANNANTHALA POLICE STATION, MANNANTHALA P.O.,
THIRUVANANTHAPURAM, PIN-695 043.
* ADDL.R4 SIBY MATHEWS,
AGED 71 YEARS, S/O.JOSEPH MATHEW,
TC.14/229, SILVERHILLS, ANAYARA P.O.,
THIRUVANANTHAPURAM-695 029.
* ADDL.R4.IMPLEADED AS PER ORDER DATED 04/06/2023 IN
I.A.NO.1/23
R1-R3 SMT.NIMA JACOB, GOVERNMENT PLEADER
ADV.M.BAIJU NOEL
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
-:2:-
W.P.(Crl.) No.575 of 2023
'C.R.'
JUDGMENT
Dated this the 6th day of June, 2024 This is a petition filed by the petitioner under Article 226 of the Constitution of India, seeking the following reliefs:-
I. Issue a writ of certiorari or other appropriate writ or order quashing Exhibit P7 passed by the second respondent, in the interest of justice.
II. Issue a writ of mandamus or other appropriate writ or direction commanding the third respondent to consider Exhibit P3 complaint and register a First Information Report at the Mannanthala Police Station, Thiruvananthapuram, in the interest of justice.
III. Issue a writ of mandamus or other appropriate writ or direction commanding the first respondent to take appropriate departmental action as against the second and third respondents, in accordance with the mandate of the Hon'ble Supreme Court in Para 111(iv) of the judgement in Lalita Kumari v.-:3:- W.P.(Crl.) No.575 of 2023
Government of U.P., reported in [2014 (2) SCC 1], for willfully not registering the FIR on Exhibit P3 and P4 complaints, in the interest of justice.
IV. Pass such other orders as this Hon'ble Court deems fit, in the interest of justice.
2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the additional 4th respondent, who is arrayed as the respondent in Exts.P3 and P4 complaints filed by the petitioner.
3. The crux of the case is centered on publication of Ext.P2 - a book by name 'Nirbhayam', written by the 4 th respondent and published by Green Books, Thrissur run by the 2nd accused as the Managing Editor. The specific case of the petitioner, as espoused in Ext.P3 filed before the Station House Officer, Mannathala Police Station and Ext.P4 filed before the District Police Chief, Thiruvananthapuram is that in Page Nos.209 to 227 of the book by name 'Nirbhayam' a -:4:- W.P.(Crl.) No.575 of 2023 chapter of having caption "Sooryanelli Case" is incorporated which relates to the rape of a minor girl by number of accused persons during 1996. The specific allegation is that in the above said book, the author of the book revealed the identity of the rape victim with exact details though her name was not specifically disclosed. It is alleged that in the book, names, address and all the details of the parents of the victim disclosed with certainty and thereby the 4 th respondent committed an offence punishable under Section 228A of IPC providing imprisonment for a period upto two years and shall also liable to fine. Accordingly, Ext.P3 complaint was filed before the Station House Officer and Ext.P4 before the District Police Chief. Ext.P2 produced in this writ petition, is the exact page of the said book containing the recitals that would disclose the identity of the rape victim, as per the contentions raised by the writ petitioner.-:5:- W.P.(Crl.) No.575 of 2023
4. Since the petitioner was not satisfied with the proceedings after filing of Exts.P3 and P4, he approached this Court by filing W.P.(C) No.31667/2019 and this Court passed an order on 15.12.2022 to consider Exts.P3 and P4 (Exts.P5 and P7 in the above writ petition). As per the directions issued by this Court, Ext.P7 communication was given to the petitioner by the Commissioner of Police, Thiruvananthapuram City, stating that it was decided not to take any further action on Exts.P3 and P4 as found by the Investigating Officer.
5. The learned counsel for the petitioner pointed out that, even as per the counter statement filed by the State in W.P. (C) No.31667/2019, a copy of the same has been placed as Ext.P5, in Paragraph No.8, it is admitted that, "during the course of enquiry, statement of victim's father, XXX (name not disclosed) was recorded. As per the statement, it is revealed that the name, place and occupation of the parents of the Sooryanelli victim are same as mentioned in the book named -:6:- W.P.(Crl.) No.575 of 2023 Nirbhayam".
6. Accordingly, it is submitted by the learned counsel for the petitioner that even though the prosecution admitted materials warranting registration of a crime for the offence punishable under Section 228A of IPC, but shockingly, Ext.P7 communication was given to the petitioner to save the 4 th respondent from prosecution. The learned counsel brought the attention of this Court in Ext.P2 - Page No.212 of the so-called book and read out the relevant portions to appraise the point that recitals therein, prima facie show commission of offence punishable under Section 228A of the Indian Penal Code and therefore, Ext.P7 order should be interfered directing a proper investigation, since a cognizable offence punishable under Section 228A of IPC is prima facie made out compelling registration of crime against the additional 4th respondent in view of the decision of the Apex Court in Lalitha Kumari v.
Govt. of U.P. and Others [2013 (4) KHC 552]. -:7:- W.P.(Crl.) No.575 of 2023
7. Going by the lengthy judgment in Lalitha Kumari's case (supra), in Paragraph No.111, the Constitution Bench of the Apex Court summarised the conclusion/directions as under:-
"111. Conclusion/Directions:
In view of the aforesaid discussion, we hold:
(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in -:8:- W.P.(Crl.) No.575 of 2023 brief for closing the complaint and not proceeding further.
(iv) The Police Officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months -:9:- W.P.(Crl.) No.575 of 2023 delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above." Another decision of the Apex Court in Nipun Saxeena and Another v. Union of India and Others [2019 (1) KHC 199], -:10:- W.P.(Crl.) No.575 of 2023 also is pointed out to contend that the Apex Court also issued directions to address the necessity to protect identity and names of victims of rape and victims under the Protection of Children from Sexual Offences Act. The directions issued by the Apex Court are as under:
"1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
2. In cases where the victim is dead or of unsound mind the name of the victim or her Identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
3. FIRs relating to offences under S.376, S.376A, S.376AB, S.376B, S.376C, S.376D, S.376DA, S.376DB or 376E of IPC and offences under POCSO shall not -:11:- W.P.(Crl.) No.575 of 2023 be put in the public domain.
4. In case a victim files an appeal under S.372 Cr.P.C., it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.
6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the Court.
7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under S.228A(2)(c) of IPC should be made only to the Sessions Judge concerned until -:12:- W.P.(Crl.) No.575 of 2023 the Government acts under S.228A(1)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.
8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.
9. All the States/Union Territories are requested to set up at least one 'one stop centre' in every district within one year from today."
8. The learned counsel for the 4th respondent who got arrayed as a party subsequently on his volition filed a counter statement and pointed out that, as per Clause (vi)(e) of Paragraph 111 of Lalitha Kumari's case (supra), the Apex Court included cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay, as cases where without registering FIR preliminary enquiry can be resorted -:13:- W.P.(Crl.) No.575 of 2023 to. It is argued further that in the present case, the publication of the book was in May, 2017 and Ext.P3 complaint was filed for the first time on 25.10.2019. After a delay of more than 2 years, therefore the present case is one covered by Clause (vi)(e) of Paragraph 111 of Lalitha Kumari's case and therefore, the Police Officer is not required to register FIR in the present crime and a preliminary enquiry is legally permissible as per the ratio in Lalitha Kumari's case.
9. While addressing the rival arguments, I am not inclined to decide the question as to whether the procedure adopted by the Investigating Officer to go for a preliminary enquiry is right or not at this stage, since the grievance of the petitioner as well as the 4th respondent could be addressed by analysing the materials to find out whether commission of offence punishable under Section 228A of IPC is made out, warranting registration of FIR in the facts of the case. -:14:- W.P.(Crl.) No.575 of 2023
10. On perusal of Ext.P2, the extract of page No.212 of the book even though the name of the victim was referred under a different name, the details of the parents of the victim, the place where the victim and parents were resided and later had been residing, the school where the victim studied and had studied thereafter were disclosed in detail.
11. The learned counsel for the 4th respondent argued that Ext.P2 in no way disclosed the identity of the victim, Since 2010, the victim has been residing in Kottayam District at a different place.
12. Coming to the elements to constitute offence under Section 228A of IPC, it is profitable to refer 228A(1) of IPC which is as under:-
228A. Disclosure of identity of the victim of certain offences etc.
1.Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376, -:15:- W.P.(Crl.) No.575 of 2023 section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA and section 376DB[1] is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
13. The learned counsel for the 4th respondent argued that the offence under Section 228A would attract only when there is printing or publishing the name or any matter which would make known the identity of any person who committed offence of rape. But such publication is permissible by or with authorisation in writing of the victim, in this context, it is worthwhile to refer the direction issued by the Apex Court in Nipun Saxeena and another (supra) and the said directions would hold the field in the matter of printing or publishing by electronic social and other medias, etc. the name and identity of a rape victim. Even otherwise, -:16:- W.P.(Crl.) No.575 of 2023 no materials forthcoming to see that such authorisation as contemplated in Sub-section (2)(b) and (c) of Section 228A of IPC, was obtained prior to the book was published.
14. The learned Government Pleader supported Ext.P7 order, whereby it was informed by the Commissioner of Police to the petitioner that there is nothing available to register a crime. In Paragraph No.8 of the statement filed by the State in W.P.(C) No. 31667/2019, the contention is as extracted hereinabove.
15. On perusal of Ext.P7 dated 05.03.2023 issued by the Police Commissioner to the petitioner along with Ext.R2(a) copy of preliminary enquiry final report filed by Sri.Arunraj M.P., Assistant Commissioner of Police, Cantonment Sub Division dated 28.02.2023, it has been stated in Paragraph No.3 as under:-
"3. Whoever prints publishes any matter in relation to any proceedings before a court with -:17:- W.P.(Crl.) No.575 of 2023 respect to an offence referred to in sub-section (1) without the previous permission of such court shall be punished with imprisonment of either description for a term may extend to two years and shall also be liable to fine.
To ascertain whether the allegation comes under the purview of Sec. 228A IPC, a legal opinion was sought from the Director General of Prosecution. In the legal opinion ".....the materials forwarded along with it do disclose an offence under section 228A IPC. On a careful perusal of the complaint and relevant pages of the alleged book in question, it is seen that the details are sufficient enough to identify a girl. But the copy of the truncated portion of the alleged book does not in clear term convey the fact that the girl is a victim of any of the offences mentioned in Section 228A of IPC except mere mentioning of "peedippikkapetta penkutti". True that in the complaint there is a positive assertion that the girl mentioned above is a victim of the offences -:18:- W.P.(Crl.) No.575 of 2023 of rape. But the complainant cannot keep the Station House Officer guessing of anything or to ask him to take notice of anything in the air. If at all anything is there, it must be specific. If as a matter of fact it is discernible from the whole book in question that the girl mentioned above is a victim of any of the offences mentioned under Section 228A of IPC, it may attract an offence under Section 228A of IPC. Hence, it is for the investigating officer to verify/peruse the book in question in its entirety and to ascertain whether the girl mentioned above is a victim of any the offences mentioned under section 228A of IPC and proceed in accordance with law. I opine accordingly".
16. Ext.P8 filed in this writ petition is the legal opinion given by Sri.T.A. Shaji, Director General of Prosecution and the last page of the legal opinion, it has been opined as under:-
-:19:-W.P.(Crl.) No.575 of 2023
"Now the question arises as to whether the complaint as well as the materials forwarded along with it do disclose an offence under Section 228A. On a careful perusal of the complaint and the relevant pages of the alleged book in question, it is seen that the details are sufficient enough to identify a girl. But the copy of the truncated portion of the alleged book does not in clear term convey the fact that the girl is a victim of any of the offences mentioned in Section 228A of IPC except mere mentioning of "peedippikkapetta penkutti". True that in the complaint there is a positive assertion that the girl mentioned above is a victim of the offences of rape. But the complainant cannot keep the Station House Officer guessing of anything or to ask him to take notice of anything in the air. If at all anything is there, it must be specific. If as a matter of fact it is discernible from the whole book in question that the girl mentioned above is a victim of any of the offences mentioned under Section 228A of IPC, it may attract an -:20:- W.P.(Crl.) No.575 of 2023 offence under Section 228A of IPC. Hence, it is for the investigating officer to verify/peruse the book in question in its entirety and to ascertain whether the girl mentioned above is a victim of any the offences mentioned under section 228A of IPC and proceed in accordance with law. I opine accordingly".
17. On reading the legal opinion along with the preliminary enquiry final report, the Assistant Commissioner of Police as well as the learned Director General of Prosecution found that on a careful perusal of the complaint and the relevant pages of the alleged book in question, it is seen that the details are sufficient enough to identify a girl. But the book did not in clear terms convey the fact that the said girl as a victim of the offences mentioned in Section 228A of IPC and the rationale for the said conclusion that mere mentioning of "peedippikkapetta penkutti" in no way disclose the girl as a victim of offences of rape. -:21:- W.P.(Crl.) No.575 of 2023
18. On reading the preliminary enquiry final report and the legal opinion, I have no hesitation to say that the finding in the final report is an attempt to save the former higher police official from the clutches of prosecution. As per the preliminary enquiry final report and the legal opinion given by the Director General of Prosecution, both of them found that the details were sufficient enough to identify the girl as "peedippikkapetta penkutti". When analysing the Malayalam term "peedippikkapetta penkutti" the same means a victim of 'sexual assault' or 'molestation' or 'rape' . So the word would carry the offences dealt in Section 228A of IPC. Apart from referring the girl as "peedippikkapetta penkutti", her identity as a 'rape victim' is discernible from the book itself otherwise.
19. In this regard, I have perused the relevant pages of the book viz., Page Nos.209 to 211(Ext.P2). It is discernible that in Page No.210 of the book, a news published in the -:22:- W.P.(Crl.) No.575 of 2023 Malayala Manorama Daily, January, 1996 also incorporated in bold letters with caption 'Advocate and others who committed rape on the victim were arrested'. So reading the book from page Nos.209, 210 and 211, one could easily get the identity of the girl referred as "peedippikkapetta penkutti" as a victim of rape covered by Section 228A of IPC. Therefore, the preliminary enquiry final report found to be without application of mind by the Investigating Officer and the same is liable to be set aside.
20. Summarising the issue involved in this case, with reference to the recitals in Ext.P2, no prudent man would say that no offence under Section 228A of IPC is made out from the materials. Contra finding recorded by the Investigating Officer who conducted the preliminary enquiry is unsustainable in law. Therefore, this case would require investigation by registering FIR to find out the allegations of Exts.P3 and P4 in tune with the mandate of Lalitha -:23:- W.P.(Crl.) No.575 of 2023 Kumari's case (supra).
21. It is noticed that even though Exts.P3 and P4 were lodged, the petitioner did not approach the Magistrate Court seeking an investigation under Section 156(3) of Cr.P.C. As rightly pointed out by the learned counsel for the 4 th respondent, the decision of this Court in Sakiri Vasu v. State of U.P. and Others [2008 (2) KHC 13], the Apex Court held in Paragraph Nos.25, 27 and 28 as under:-
"25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under S.482 CrPC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under S.154(3) and S.36 CrPC before the concerned police officers, -:24:- W.P.(Crl.) No.575 of 2023 and if that is of no avail, by approaching the concerned Magistrate under S.156(3).
xxxx xxxx xxxx
27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under S.482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under S.36 and S.154(3) before the concerned police officers, and if that is of no avail, under S.156(3) CrPC before the Magistrate or by filing a criminal complaint under S.200 Cr.PC and not by filing a writ petition or a petition under S.482 Cr.PC.
28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally -:25:- W.P.(Crl.) No.575 of 2023 well settled that if there is an alternative remedy the High Court should not ordinarily interfere."
22. In view of the decision reported in Don Paul v. State of Kerala [2024 (3) KHC 617], it was held in paragraphs 6 to 10 as under:-
"6. In paragraph 24 of the decision reported in Babu Venkatesh & Ors. v. State of Karnataka & Ors.'s case (supra), paragraphs 30 and 31 of the decision reported in (MANU / SC / 0344/2015 :
2015 (6) SCC 287) Priyanka Srivastava and anr. v. State of Uttar Pradesh & Ors. were referred as under:
"30: In our considered opinion, a stage has come in this country where S.156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the -:26:- W.P.(Crl.) No.575 of 2023 allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Art.226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under S.154(1) and S.154(3) while filing a petition under S.156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under S.156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is -:27:- W.P.(Crl.) No.575 of 2023 made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under S.156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute / family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay / laches in initiating criminal prosecution, as are illustrated in Lalita Kumari (MANU / SC / 1166/2013 : 2014 (2) SCC 1 : 2014 (1)SCC (Cri.) 524) are being filed.
That apart, the learned Magistrate would also beaware of the delay in lodging of the FIR."
7. Finally, in paragraphs 25 to 28 of the decision reported in Babu Venkatesh &Ors. v. State of Karnataka & Ors.'s case (supra) it was held as extractedherein above in paragraph 4. -:28:- W.P.(Crl.) No.575 of 2023
8. In the latest decision reported in (2023 KHC 6519 : 2023 (4) KHC SN 3 : 2023 LiveLaw (SC) 396 : 2023 (3) KLT 431 : 2023 (2) KLJ 897 : 2023 SCC OnLine SC 569)), Kailash Vijayvargiya v. Rajlakshmi Chaudhuri the Apex Court, after referring Priyanka Srivastava and anr. v. State of Uttar Pradesh & Ors.(supra), held that this Court highlighted abuse of the criminal process by the unprincipled and deviant litigants who do knock at the door of the criminal court for malevolent reasons. Reiterating Lalita Kumari (supra), it was observed that an action under S.156(3) should not be entertained without the complainant taking recourse to sub-section (1) and (3) of S.154 and compliance of these two Sections should be clearly spelt out in the application and necessary documents filed. To check malevolence and false assertions, the Court directed that every petition / application under S.156(3) should be supported by an affidavit so that the person making an application should be conscious of it and to see that no false allegation is made. If the affidavit is found to be false, the -:29:- W.P.(Crl.) No.575 of 2023 complainant will be liable for prosecution in accordance with the law. Vigilance is specially required in cases pertaining to fiscal sphere, matrimonial / family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay / laches. Thus, the Magistrate must be attentive and proceed with perspicacity to examine the allegation made and the nature of those allegations. He should not issue directions without proper application of mind which would be contrary to the object and purpose of the Statute."
23. Therefore, the remedy of a person when his grievance, by filing or informing materials which would suggest a cognizable offence, if not acted upon by the Police Officer and the Police Superintendent is normally to approach the Magistrate seeking an investigation under Section 156(3) Cr.P.C. or else could approach the Magistrate for an enquiry permitted under Section 202 Cr.P.C. by filing a private complaint.
-:30:-W.P.(Crl.) No.575 of 2023
However, it is well settled that the power of a constitutional court to order investigation is not taken away because of availability of alternative remedy in an appropriate case of this nature where the accused is none other than former DGP of the Kerala State. That apart, it is perceivable that Exts.P3 and P4 complaints were filed by the petitioner who worked along with the 4th respondent as Deputy Superintendent of Police, on 25.10.2019 and on 06.11.2019, the complaints not properly acted upon the last five years. Having noticed the above factual and legal position, this writ petition stands disposed of as under:-
i) In view of the discussion held above, Ext.P7 found to be unsustainable in law and the same stands set aside.
ii) There shall a direction to the 3 rd respondent Station House Officer, Mannanthala Police Station to consider Ext.P3, where there is disclosure of a cognizable offence and to proceed forthwith, -:31:- W.P.(Crl.) No.575 of 2023 following the ratio in Lalitha Kumari's Case (supra) at any rate, within a period of seven days from the date of receipt of a copy of this judgment.
Sd/-
A. BADHARUDEEN JUDGE bpr -:32:- W.P.(Crl.) No.575 of 2023 APPENDIX OF WP(CRL.) 575/2023 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE COVER PAGE OF THE BOOK "NIRBHAYAM-ORU IPS OFFICERINTE ANUBHAVAKURUPU" ALONG WITH THE RELEVANT PAGE CONTAINING THE DETAILS OF THE PRINTER AND PUBLISHER.
Exhibit P2 TRUE COPY OF THE PAGES 209 TO 212 OF THE BOOK "NIRBHAYAM-ORU IPS OFFICERINTE ANUBHAVAKURUPU", 2017 EDITION, PUBLISHED BY GREEN BOOK PRIVATE LIMITED, THRISSUR.
Exhibit P3 TRUE COPY OF THE COMPLAINT DATED 25.10.2019 PREFERRED BY THE PETITIONER BEFORE THE THIRD RESPONDENT.
Exhibit P4 THE TRUE COPY OF THE COMPLAINT DATED 06.11.2019 PREFERRED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.
Exhibit P5 TRUE COPY OF THE STATEMENT DATED 20.01.2020 IN W.P(C).NO. 31667/2019 ON THE FILES OF THE HON'BLE COURT.
Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 15.12.2022 IN W.P(C) NO. 31667/2019 PASSED BY THIS HON'BLE COURT.
Exhibit P7 TRUE COPY OF THE NOTICE DATED 05.03.2023 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER.
Exhibit P8 TRUE COPY OF THE CIRCULAR NO. 5/2018 DATED 11.04.2018 ISSUED BY THE DIRECTOR GENERAL OF POLICE, KERALA REFERRED TO IN EXHIBIT P7.
-:33:-W.P.(Crl.) No.575 of 2023 RESPONDENTS' EXHIBITS Exhibit-R4(a) TRUE COPY OF THE O.S.NO.192/2017 OF SUB COURT THIRUVANANTHAPURAM.
Exhibit-R4(b) TRUE COPY OF THE ADDRESS DETAILS OF THE VICTIM IN JUDGMENT OF WPC.NO.8644 OF 2013 (E) DATED 12.04.2013 OF THE HON'BLE HIGH COURT OF KERALA.