C.Premanandakrishnan vs State Of Kerala, Represented By ...
2022 Latest Caselaw 8421 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
                        CRL.MC NO. 1814 OF 2022
  [AGAINST C.M.P.NO.1043/2022 ON THE FILE OF THE JUDICIAL FIRST
                 CLASS MAGISTRATE COURT, CHAVAKKAD]
PETITIONER/ACCUSED:

            C.PREMANANDAKRISHNAN
            AGED 49 YEARS
            S/O. KRISHNAN NAIR, WORKING AS
            INSPECTOR OF POLICE, TEMPLE POLICE STATION,
            GURUVAYOOR - 680 101 AND RESIDING AT
            CHORPPATH HOUSE, KOTTAPPURAM,
            SREEKRISHNAPURAM, PALAKKAD 679513


            BY ADV SUMAN CHAKRAVARTHY



RESPONDENTS/STATE AND COMPLAINANT:

    1       STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA
            PIN - 682031

    2       V.VIJAYA KUMAR
            AGED 72 YEARS, S/O.APPU NAIR,
            ANUGRAHA, PUTHUPARIYARAM, PALAKKAD - 678 731
            NOW RESIDING AT NO.13/38, KRISHNA ENCLAVE,
            MALLISSERY PARAMBU, WEST GURUVAYOOR,
            OPP.MULLATHARA TEMPLE, THRISSUR, KERALA - PIN - 680101

            R2 BY ADV GAJENDRA SINGH RAJPUROHIT,

            ADV. AKHIL GEORGE

            R1 BY SRI.VIPIN NARAYAN SR.PP


     THIS   CRIMINAL   MISC.   CASE   HAVING   COME   UP   FOR   HEARING   ON
19.05.2022, THE COURT ON 6.7.2022 PASSED THE FOLLOWING:
 CRL.MC No.1814 of 2022                2




                                 O R D E R

The petitioner, the Station House Officer of

Guruvayoor temple Police Station, has approached

this Court to quash Annexure-2 complaint

submitted by the 2nd respondent, numbered as

Crl.M.P.No.1043/2022 on the Judicial First Class

Magistrate Court files, Chavakkad and all

further proceedings pursuant thereto.

2. The facts which led to the filing of this

Crl.M.C. are as follows:

The 2nd respondent is a person who is

involved in several criminal cases. Annexure-1

contains the details of criminal cases registered

against the 2nd respondent, which would indicate

that, in Kerala, there are 30 cases registered

for various offences, whereas the other 10 cases

are registered against him in the State of

Tamilnadu. It is the case of the petitioner

that, to wreak vengeance against the petitioner,

who is the present Station House Officer,

Guruvayoor Temple Police Station, the 2nd

respondent submitted Annexure-2 complaint before

the Judicial First Class Magistrate Court,

Chavakkad which is numbered as

Crl.M.P.No.1043/2022 raising several allegations

against the petitioner for the offences

punishable under Sections 383, 506, 190, 200,

211, 217, 341 and 352 of the Indian Penal Code

(IPC) r/w. Sections 115 and 116(c) of the Kerala

Police Act. Annexure-2 complaint was submitted

on 14.3.2022, and on the very same day itself,

the aforesaid complaint was referred for

investigation to the Station House Officer,

Guruvayoor temple Police Station with the

following order:

"Complainant present. Complaint forwarded to SHO Guruvayoor temple PS for registering an FIR investigate and the report. If a crime is already registered on the said set of facts based on the petition previously filed by the

complainant before the police authorities, this complaint shall be appended to the file of the said crime and kept in the case file."

The specific case of the petitioner is that, the

procedure adopted by the learned Magistrate was

not proper as the complaint was forwarded to the

Station House Officer of Guruvayoor Temple

police Station even though the accused person in

the aforesaid complaint is the Station House

Officer of the very same Police Station in his

personal capacity. In such circumstances, it was

pointed out that, the same should not have been

forwarded to the same person who is arrayed as

the accused in the complaint as it would create

a situation where the petitioner would be

compelled to register a case against himself.

Highlighting the aforesaid discrepancy, this

Crl.M.C. is filed.

3. Heard Sri.Suman Chakravarthy, the learned

counsel for the petitioner, Sri. Vipin Narayan,

the learned Senior Public Prosecutor for the

State and Sri. Akhil George, the learned counsel

for the 2nd respondent.

4. The learned counsel for the petitioner

asserted the discrepancy highlighted above while

making submissions. The learned counsel further

relied on the decisions in Superintendent of

Police, C.B.I v. State of Kerala [2005(3) KLT

823], Prasanth v. C.V.Kuriakose and Another

[2020(4) KHC 795] and Priyanka Srivastava and

Another v. State of Uttar Pradesh and Others

[2015(6) SCC 287].

5. On the other hand, the learned counsel

for the 2nd respondent would vehemently oppose

the aforesaid contentions. According to him,

there is no impropriety in forwarding the case

to the Station House Officer of Guruvayoor

temple Police station. The learned counsel

places reliance upon Section 2(o) of the Code of

Criminal Procedure (Cr.PC) which defines

"officer in charge of the police station" and

according to him, it enables any other police

officer in the said station to register a

complaint against the person who is the Station

House Officer of the concerned station in

certain circumstances. Thus, the learned counsel

for the 2nd respondent seeks for dismissal of the

Crl.M.C.

6. The crucial question that arises is

whether the procedure adopted by the learned

Magistrate in referring the matter for

investigation under Section 156(3) of Cr.PC is

proper or not in the facts and circumstances of

the case. There is no dispute that the

petitioner is the Station House Officer of the

police station concerned and he is the person

accused of the offences in Annexure-A2 private

complaint. The specific case of the petitioner

is that, as he is the Station House Officer, he

cannot be compelled to register a case against

himself. On the other hand, in response to the

aforesaid contention, the learned counsel for

the 2nd respondent relies on the stipulations

contained in Section 2(o) of the Cr.PC which

reads as follows:

"(o): officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present."

7. It is true that the stipulation contained

in Section 2(o) of the Cr.PC empowers the

officer who is next in the rank of the Station

House Officer to perform the duties as an

officer in charge of the police station in

certain circumstances. However, the situation

contemplated herein is entirely different. In my

view, the situation at hand cannot be treated as

a case where the petitioner/Station House

Officer is unable to perform his duties. At the

most, inability as far as the petitioner/Station

House Officer is concerned is only with respect

to the present complaint; it would not extend in

exercising his general powers. It is also to be

noted in this regard that, even if it is assumed

that, the Station House Officer next in rank is

treated as a person who is in charge of the

Police station for the purpose of registering a

crime in this case, I am of the view that, no

fruitful purpose would be served if the officer

subordinate to the petitioner herein would be

compelled to conduct an investigation against

his superior officer. Therefore, no fruitful

investigation can be expected in such a case as

the person subordinate to the petitioner

herein would be compelled to report to

the petitioner/accused in respect of the

investigation which he makes.

8. It is discernible from the order passed

by the learned Magistrate that, while passing an

order referring Annexure-2 complaint for

investigation to the Station House Officer,

Guruvayoor Temple Police Station, the learned

Magistrate has not taken into consideration the

impact of such order, consequent to the peculiar

situation prevailing in this case. As per the

provisions of Cr.PC, it is possible for the

Magistrate to conduct an inquiry under Section

202 Cr.PC before taking action on the complaint.

In this case, no such exercise has been done.

9. Moreover, in Priyanka Srivastava's case

(supra), the Hon'ble Supreme Court observed

that, the private complaint submitted before a

Magistrate seeking direction for registration of

F.I.R. under Section 156(3) must be supported by

an affidavit. It is the case of the petitioner

in this case that, Annexure-A2 was not

accompanied by an affidavit. Apart from the

above, the observations made by this Court in

Prasanth's case (supra) are also very much

relevant. Paragraphs 6 and 7 of the aforesaid

judgment are as follows:

"6. Having examined the nature of contentions raised by the parties, it is quite natural for one to think that since the falsity or genuineness of the certificates relied on by the petitioner is a matter of controversy necessitating enquiry, continuance of investigation pursuant to Annexure - B FIR is only desirable. That apart, one should not, however, lose sight of the other side of the picture also. Any investigation permitted to be held by the police authorities as to the authenticity or otherwise of the certificates in question pursuant to the complaint lodged by a member of the public, will certainly affect, not only the reputation but also the career prospects of the suspect in the crime. If the outcome of the investigation ultimately turns out to be in favour of the suspect, no doubt by that time, his reputation as well as opportunity for employment might be ruined. It, however, does not mean that in all the cases wherever possession of requisite qualification or authenticity of certificates is in question, investigation should be invariably withheld. It would only be a prudent approach if the judicial Magistrate concerned who forwards the complaint for registration and orders investigation into the crime ensures that the complaining person approaches him only with good sense of responsibility and also even preparedness to face the consequences if his

allegations turn out, at a later stage to be factually wrong or otherwise ill - motivated.

7. This position has been taken note of with utmost concern by the Honourable Apex Court which, in one of its decisions insisted the Judicial Magistrates entertaining complaints to make sure that the allegations made in the complaint are genuine, before it being forwarded for registration and investigation to the Police under S.156(3) of Cr.P.C. This insistence came into vogue in the wake of the bald and frivolous allegations made by certain complainants turning out to be false in some cases, at the later stage of the investigation. It was opined by the Honourable Apex Court that there existed the need for devising appropriate legal mechanism for holding the persons responsible for making false imputations. It was thus suggested that in order to confirm that only persons with sense of responsibility approach the court with honest complaints, the learned Magistrate should insist the applicant to file affidavit along with the complaint in appropriate cases, duly swearing that the imputations made in the complaint are factually true to the best of their knowledge, information and belief. A rigid procedure demanding affidavit to accompany every complaint is not what is intended. It is after all the discretion which the Magistrate may exercise in selected and deserving cases depending on the nature of allegations in the complaint and also facts and circumstances of each case."

As per the observations extracted above, this

Court reiterated the necessity of the

precautions to be taken by the learned

Magistrate while entertaining a complaint

seeking registration of the F.I.R. and

investigation by the police under Section 156(3)

of the Cr.PC.

10. In Ramdev Food Products (P) Ltd v. State

of Gujarat[(2015) 6 SCC 439], it was observed by

the Honourable Supreme Court as follows:

" The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of the credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued."

Similarly, In Anil Kumar v.M.K.Aiyappa [(2013)10

SCC 705], it was held by the Honourable Supreme

Court as follows:

" The scope of Section 156(3) Cr PC came for consideration before this court in several cases. This court in Maksud Sayed [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising the jurisdiction under section 156(3). It held that where jurisdiction exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr PC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under section 156(3) against a public servant without a valid sanction order. The application of mind should be reflected in order. The mere statement that he has gone through the complaint, and documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complaint, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order. However, a detailed expression of his views is neither required nor warranted............."

Thus, it is evident that, the Honourable Supreme

Court laid down the legal proposition that the

Magistrate has to apply his mind before

referring the matter for investigation to police

under section 156(3) CrPC, and such application

of mind should reflect in the order as well. In

this case, it is discernible from the records

that no such exercise has been conducted by the

learned Magistrate while forwarding the

complaint to the police for registration of the

F.I.R. In my view, the peculiar facts of this

case would necessitate a more careful approach

on the part of the Magistrate for various

reasons due to following points; (1) the accused

is a police officer, (2) the complainant is a

person involved in several cases including

serious offences, (3) The complaint was raised

against the person who happened to be the

Station House Officer of the police station, to

which petitioner is seeking for reference for

investigation under section 156(3) CrPC, (4)

Consequence of a direction to register crime by

the very same officer against whom accusation

has been made in the complaint and thereby

being instrumental to a situation where the

accused is forced to register an FIR against

himself, etc. However, the order passed by the

Magistrate directing the registration of crime,

referring the matter to the police, does not

contain any reflections of consideration of the

above aspects. In my view, non-consideration of

the factors above is very much material.

Therefore, I am of the view that interference is

necessary in the order passed by the learned

Magistrate and hence the same is to be set

aside.

In such circumstances, this Crl.M.C. is

disposed of by setting aside the order passed by

the Judicial First Class Magistrate Court,

Chavakkad on 14.3.2022 referring Annexure-A2

complaint for investigation to the police under

section 156(3) CrPC. The learned Magistrate is

directed to consider the contents of Annexure-A2

in light of the principles laid down by the

Hon'ble Supreme Court, which are referred to

above and pass a fresh order thereon in

accordance with law.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk

APPENDIX OF CRL.MC 1814/2022 PETITIONER'S ANNEXURES:

Annexure1 A TRUE COPY OF THE LIST OF CASES WHEREIN THE 2ND RESPONDENT IS INVOLVED

Annexure2 A TRUE COPY OF THE COMPLAINT IN CRLMP NO.1043/2022 ON THE FILES OF JFCM CHAVAKKAD

Annexure3 A TRUE COPY OF THE REFER REPORT IN CRIME NO.595/2010 ON THE FILES OF JFCM CHAVAKKAD

Annexure4 A TRUE COPY OF THE ORDER DATED 18.06.2019 IN CMP NO.313/2018 IN C.C NO.68/2016

Annexure5 A TRUE COPY OF THE COMPLAINT FILED BEFORE THE ACP GURUVAYOOR DATED 17.11.2021 BY THE 2ND RESPONDENT

//TRUE COPY//

SD/- P.S. TO JUDGE