Kerala High Court
D. Harikumar vs State Of Kerala on 31 July, 2025
Author: V.G.Arun
Bench: V.G.Arun
Crl.M.C.No.2606/25
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 31ST DAY OF JULY 2025 / 9TH SRAVANA, 1947
CRL.MC NO. 2606 OF 2025
CRIME NO.122/2025 OF Ernakulam Central Police Station,
Ernakulam
PETITIONERS:
1 D. HARIKUMAR ,
AGED 45 YEARS
S/O G. DAMODARAN NAIR,ADDRESS SHOWN IN FIR IS MGM
RESIDENTIAL ASSOCIATION EZHAMKULAM, PARAKODE P.O,
ADOOR, PATHANAMTHITTA WITH PRESENT ADDRESS AT 1ST
FLOOR, BUILDING NO.40,
AL HITMI VILLAGE C RING ROAD, UMM GHUWAILINA,
DOHA, QATAR-55436, PIN - 691554
2 RAVI PILLAI @ B. RAVINDRAN PILLAI,
AGED 70 YEARS
S/O BALAKRISHNA PILLAI,RAVIGEETHAM,
KADAPPAKADA, KOLLAM ,
PRESENTLY RESIDING AT VILLA NO.1316,
ROAD NO. 7921,BLOCK NO.579,
AL JANABIYAH,
BAHRAIN- 119,
PIN - 691008
Crl.M.C.No.2606/25
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3 ASHOK KUMARAN @SABU C ,
AGED 50 YEARS
S/O CHANDRASEKHARA PILLAI,
KARUVACHAM VEETTIL HOUSE,
PUTHENSANKETHAM,
THEVALAKKARA,
KOLLAM, PIN - 691590
4 JIJU VS,
AGED 45 YEARS
S/O V.R.SREENIVASAN,
VAZHOOR HOUSE,
VEMBALLUR PO,KODUNGALLUR,
THRISSUR, PIN - 680671
BY ADV SHRI.HARIKUMAR G. (GOPINATHAN NAIR)
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 SEBY ANTONY,
AGED 59 YEARS
S/O DAVID ANTONY, ARUKKATTIL HOUSE, PATHIRAPPALLY
,POOMKAVU, ALAPPUZHA, PIN - 688521
OTHER PRESENT:
SRI. AJITH MURALI, PP.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
16.07.2025, THE COURT ON 31.07.2025 PASSED THE FOLLOWING:
Crl.M.C.No.2606/25
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V.G.ARUN, J
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Crl.M.C.No.2606 of 2025
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Dated this the 31st day of July, 2025
ORDER
The petitioners are the accused in Crime No.122 of 2025 registered at the Ernakulam Central Police Station for the offence under Section 92(a) of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as 'the RPwD Act'). Even though the litigation has a long chequered history, for the purpose of deciding the issue involved, the following facts alone are essential;
The 2nd respondent (de facto complainant) had worked in M/s.Nasser S Al Hajri and Partners General Trading and General Contracting Company in Kuwait ('the company' for short) as its Works Manager for a period of 14 months. According to the petitioners, the 2nd respondent resigned from the company citing medical reasons and after returning to Crl.M.C.No.2606/25 4 2025:KER:59184 India, launched a complaint against petitioners 1 to 3 with the NRI cell of the Kerala Police. In his complaint, the 2 nd respondent alleged that the company owned by the 2 nd petitioner had manipulated records and forged the signatures of employees and thus, made them work in the project without enrolling under the mandatory insurance scheme. While working at the project site of the company, the 2 nd resopondent was diagnosed with a pathological illness/occupational hazard and had to be hospitalised for extended periods. Although 2 nd respondent raised a claim for insurance, it was rejected on the ground that he was not covered under a valid insurance policy.
2. Based on the 2nd respondent's complaint, a crime was registered and final report submitted stating that the investigation had revealed that the 2nd respondent was persuaded to work in the company by making him believe that he was covered under an Insurance Scheme. After entering such finding, the case was referred as 'mistake of fact', stating that the police was not able to decide as to the place of Crl.M.C.No.2606/25 5 2025:KER:59184 occurrence of the offence. Thereupon, the 2 nd respondent preferred a protest complaint and after conducting preliminary enquiry, the Magistrate took cognisance for offences punishable under Sections 420, 468 and 471 read with 34 of the IPC. The order taking cognisance and further proceedings thereon were challenged by the petitioners before this Court. By Annexure A1 order, the Crl.M.Cs. were allowed, the order issuing process to the petitioners set aside and the complaint dismissed. Although Annexure A1 order was challenged before the Supreme Court by the 2nd respondent, the Special Leave Petition was dismissed as per Annexure A2 order and the review petition filed against Annexure A2 met with the same fate.
3. The 2nd respondent in the meanwhile preferred a complaint before the State Disability Commissioner alleging that the petitioners had filed fabricated documents along with their counter affidavit in the Crl.M.C filed before the High Court and even though the 2 nd respondent requested for copies Crl.M.C.No.2606/25 6 2025:KER:59184 of those documents, the copies were not furnished immediately. It is also alleged that, since those documents were not made part of the records, the learned Judge who passed Annexure A1 order was kept in the dark as to the forgery committed. In his complaint before the State Disability Commissioner, the 2 nd respondent also alleged that, by furnishing wrong address of the 1st petitioner, the petitioners deliberately delayed service of notice on them in the Special Leave Petition filed by him before the Supreme Court.
4. Pending his complaint before the State Disability Commissioner, the 2nd respondent approached this Court by filing W.P.(C).No.21807 of 2024 alleging delay in considering his complaint. That writ petition was disposed of by directing the State Disability Commissioner to consider the complaint within two months. Thereupon, the Commissioner issued Annexure A3 letter instructing the Station House Officer, Ernakulam Central Police Station to register an FIR, conduct a proper enquiry and submit charges against the accused as per Section 92(a) of the Crl.M.C.No.2606/25 7 2025:KER:59184 RPwD Act before the concerned Magistrate. Annexure A4 FIR, which is the subject matter of challenge in this Crl.M.C, was registered thereafter.
5. Learned counsel for the petitioners contended that the FIR registered on the direction of the State Disability Commissioner is ex facie illegal. It is argued that the Bharatiya Nagarik Suraksha Sanhita provides only two modes for registration of a crime. The first under Section 175(1), when information regarding a cognisable case within the limits of the police station is received and the second, when the jurisdictional Magistrate forwards a complaint for investigation under Section 175(4). It is submitted that as far as the case at hand is concerned, Annexure A4 would show that the FIR was registered on the direction of the State Disability Commissioner. It is pointed out that Annexure A3 communication issued by the Commissioner is challenged in a writ petition and therein an interim order has also been issued. Alternatively it is contended that, even if the allegations raised Crl.M.C.No.2606/25 8 2025:KER:59184 by the 2nd respondent are accepted in their entirety, no offence under Section 92(a) of the RPwD Act is made out.
6. The 2nd respondent appearing in person submitted that he is being victimised by the petitioners from the time he left the company and the harassment has taken a toll on his health and faculties. It is the contention of the 2 nd respondent that Annexure A4 FIR was registered after recording his statement. Merely because the State Disability Commissioner had issued Annexure A3 letter, that cannot be the ground for quashing the FIR. According to the 2 nd respondent, by submitting false documents in the earlier Crl.M.C., concealing those documents later, furnishing wrong address, resulting in consideration of his SLP being delayed, the petitioners have insulted and humiliated him, for which prosecution for the offence under Section 92(a) of the RPwD Act is maintainable.
7. Learned Public Prosecutor submitted on instructions that the crime was registered pursuant to the letter from the State Disability Commissioner and the 2 nd respondent's Crl.M.C.No.2606/25 9 2025:KER:59184 statement was taken thereafter.
8. Although various contentions are raised, the only question to be considered in this Crl.M.C is whether the FIR is registered pursuant to the direction issued by the State Disability Commissioner or on the basis of the 2 nd respondent's complaint. I am not venturing to decide the other contentions in view of the pendency of the writ petition challenging Annexure A3 communication of the State Disability Commissioner.
9. For deciding the question arising for consideration here is concerned, the tone and tenor of Annexure A3 letter is of utmost importance. Therefore, Annexure A3 letter is extracted hereunder;
"Kind attention is invited to the reference cited. As per orders of Hon. Kerala High Court, Heard the petitioner, by the under signed on 19.12.2024. Subsequent to this, it is instructed that the Station House Officer, Ernakulam Central Police Station to take appropriate action (ie, to register an FIR, conduct a proper enquiry and submit charges against the accused as per section 92(a) of the RPWD Act 2016 before the concemed magistrate). Herein, it is also instructed to exclude Mrs. Geethakumari P S (Aged 73, Harigeetham Sanathanan ward, Alappuzha) from the array list of accused, as agreed with the complainant."Crl.M.C.No.2606/25 10
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10. A reading of the letter leaves no room for doubt that the Commissioner has not only directed registration of FIR, but also to conduct proper enquiry and submit charges against the accused as per Section 92(a) of the RPwD Act. Surprisingly, the Commissioner has even instructed the Station House Officer to exclude one Geetha Kumari P.S. from the array of accused. Moreover, the Station House Officer has filed a statement clarifying that the de facto complainant has contacted, his statement recorded and the FIR registered upon receipt of the letter from the Commissioner. Here it is pertinent to note that in compliance of the direction in Annexure A3, Smt.Geetha Kumari P.S is excluded from the array of accused. Yet another pertinent aspect is that even in his statement to the Police, the 2nd respondent has emphasised on the fact that the Commissioner has instructed the SHO to register the FIR. The above facts lead to the conclusion that the crime was registered on the instruction of the State Disability Commissioner. Crl.M.C.No.2606/25 11
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11. The procedure to be adopted on receipt of information in cognisable cases is explained in Section 173 of BNSS. Going by the section, the information received has to be reduced to writing, read over to the informant and signed by the person. Being so, the Commissioner will figure as the informant, as the crime is registered based on his letter. Such procedure being alien to law, cannot be countenanced. The illegal manner in which the FIR is registered leaves this Court with no alternative but to intervene and correct the illegality.
For the aforementioned reasons, the Crl.M.C is allowed. Annexure A4 FIR and further proceedings in Crime No.122 of 2025 registered at the Ernakulam Central Police Station are quashed. It is made clear that this order will not stand in the way of the Station House Officer registering an FIR based on a fresh complaint/ information submitted by the 2 nd respondent, if a cognisable offence is made out.
sd/-
V.G.ARUN, JUDGE sj Crl.M.C.No.2606/25 12 2025:KER:59184 APPENDIX OF CRL.MC 2606/2025 PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE COMMON JUDGMENT IN CRL. MC NOS. 5901 AND 6042/2022 DATED 11.07.2023 Annexure A2 A TRUE COPY OF THE ORDER IN SPECIAL LEAVE TO APPEAL (CRIMINAL) NO. 11866- 11867/2023 DATED 03.03.2025 Annexure A3 A TRUE COPY OF THE ORDER/LETTER DATED 19.12.2024 ISSUED BY THE STATE DISABILITY COMMISSIONER Annexure A4 A TRUE COPY OF THE FIR NO. 122 OF 2025 BEFORE ERNAKULAM CENTRAL POLICE STATION DATED 01.02.2025 Annexure A5 A TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE 1ST PETITIONER Annexure R 2-1 Annexure R2-2 RELEVANT PAGES OF THE RPWD ACT 2016 SECTION 81, MARKED AND ATTACHED HEREIN AS ANNEXURE R2-2, DATED NIL Annexure R2-3 TRUE COPY OF THE EMAIL COMPLAINT SENT TO SHO DATED 3-1-2025 MARKED AND ATTACHED HERE IN AS ANNEXURE R2-3.
Annexure R2-4 TRUE COPY OF THE HIGH COURT JUDGMENT IN WPC-2427-2025 DATED 6-2-2025 IS MARKED AND ATTACHED HEREAS ANNEXURE R2-4 RESPONDENT ANNEXURES Annexure R2-5 The true copy of the WPC-22048-2025 Interim Order dated 17-06-2025 Annexure R2-6 True copy of the Counter Affidavit filed by the 2nd Respondent in WPC-
22048-2025 Registered on 17-6-2025 Crl.M.C.No.2606/25 13 2025:KER:59184 Annexure R2-7 True copy of the Judgement in WPC-
21807-2025 Dated 13-11-2024 Annexure R2-8 A TRUE COPY OF THE same, ACKNOWLEDGMENT RECEIVED BY THE PETITIONER DIARY NUMBER DNO/23/CCPD/1073 ON 9 DECEMBER 2023of WPC-21807-2024 Annexure R2-9 a true copy of the letter sent to State Commissioner dated 19 November 2024 Annexure R2-10 True copy of the commissioner letter dated 19-11-2024 is marked and attached as Annexure R-2 10 Annexure R2-11 Relevant Pages of WPC-2427-2025 Petition, stating submission of complaint to police on 24-12-2024 in paragraph 4 and 5 Annexure R2-12 Document shown by the Petitioners in CrlMC-5901-2022 as Annex A2 , as the Resignation letter of the 2nd Respondent dated 20 September 2017 is marked and attached here as ANNEXURE R- 2 12 Annexure R2-13 medical report dated 23-09-2017, submitted by the Petitioners as their Annex A3 in CrlMC-5901-2022, is marked and attached here as Annexure R 2-13.
Annexure R2-14 Petitioner sent a Termination letter ( E mail ) dated 13-11-2017, Marked and attached here as ANNEXURE R2 -14 , which was shown by the 2nd Respondent in the Crl MC-5901-2022 as Annex R2-21. Crl.M.C.No.2606/25 14
2025:KER:59184 Annexure R2-15 Document titled ' the further averment that the amounts due to the complainant were not settled is also incorrect as all amount due to him were duly paid and acknowledged by the complainant ' and this document dated 9 -7-2017 is shown in the Crl MC 5901-2022 as Annex A 21, is marked and attached here as Annexure R2- 15, Annexure R2-16 the previously submitted forged insurance document in the name of NSH Kuwait , a true copy of the same, which was shown as Annex R2-4 dated 19-6-2017 , in the objection filed as counter affidavit by the 2nd Respondent herein ,is marked and attached as Annexure R2- 16.
Annexure R2-17 The real version of the insurance document with the same policy number and endorsement , but in the name of NSH Saudi which was shown as Annex R2- 9, dated as 3 -7-2017 in the cover letter , in the objection filed as counter affidavit by the 2nd Respondent herein is marked and attached as Annexure R2- 17 Annexure R2-18 . The correspondence in this regard, , wherein the main Contractor Ms FDH ( Joint Venture of Fluor , Daewoo Hyundai ) refused recognition of NSH Kuwait wide its letter dated 28-6-2017 which was shown as Annex R2-8, in the objection filed as counter affidavit by the 2nd Respondent herein is marked and attached here as Annexure R2- 18 Crl.M.C.No.2606/25 15 2025:KER:59184 Annexure R2-19 The general terms of the contract , which permits a per occurrence claim of 6,00,000 Kuwait Dinar, (equivalent of 16 crore Indian rupees as per the exchange rate prevailed in 2017, which was shown as Annex R2-1 ( dated nil ) , in the objection filed as counter affidavit by the 2nd Respondent herein is marked and attached as in 2017, Annexure R2- 19 Annexure R2-20 The Mediation which took place at the direction of the Supreme Court dated 20-02-2025, in which the Petitioners herein did not co operate is marked and presented here as Annexure R2- 20