Kerala High Court
Krishnakumar.M.S vs The Superintendent Of Police on 20 May, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
WA NO. 568 OF 2022
AGAINST THE JUDGMENT IN WP(Crl.) 502/2021 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
KRISHNAKUMAR.M.S.,
AGED 56 YEARS, S/O.M.S.MADHAVAN, MELETH GREESHMAM,
MUTTOM P.O., HARIPAD, ALAPPUZHA-690 511.
BY ADVS.
SHABU SREEDHARAN
JINSON OUSEPH
CHITRA VIJAYAN
SHYAM KUMAR.M.P
RESPONDENTS/RESPONDENTS:
1 THE SUPERINTENDENT OF POLICE,
ALAPPUZHA, CCSB ROAD, CIVIL STATION WARD,
ALAPPUZHA-688 012.
2 THE STATION HOUSE OFFICER,
KAYAMKULAM, ALAPPUZHA-690 502.
3 MUHAMMED HANEEFA,
S/O.ABDUL KHADER, KALLELIL, CHERAVALLY,
KAYAMKULAM P.O., ALAPPUZHA-690 502.
4 SHAMIL MUHAMEED,
S/O.MUHAMMED HANEEFA, KALLELIL, CHERAVALLY,
KAYAMKULAM P.O., ALAPPUZHA-690 502.
SRI.K.P.HARISH, SR. GP
SRI.SERGI JOSEPH THOMAS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.05.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.568 of 2022
2
JUDGMENT
Dated this the 20th day of May, 2022
S.Manikumar, C.J.
Before the writ court, the writ petitioner/appellant has
sought for the following reliefs:
"1) To issue a writ of mandamus or any other appropriate
writ, order or direction commanding the respondents 1 &
2 to take urgent necessary steps to trace the Innova car
with reg. no. KL. 29N 4554 so as to enable the petitioner
to have possession of the same.
2) To issue a writ of mandamus or any other appropriate
writ, order or direction commanding the respondents 1 &
2 to take appropriate steps to get back all the documents
entrusted with the respondents 3 & 4 to the petitioner.
3) To issue a writ of mandamus or any other appropriate
writ, order or direction commanding the respondents 1 &
2 to take appropriate penal action against respondents 3
& 4 for having committed the offences of criminal breach
of trust, cheating, criminal intimidation etc upon the
petitioner."
2. Before the writ court, on instructions, on the above
prayers and facts supporting the prayers, the learned Public
Prosecutor has submitted that a preliminary enquiry was
W.A.No.568 of 2022
conducted, which revealed that the vehicle was already sold
by the petitioner and, therefore, crime was not registered.
Further submission has been made on behalf of respondents 3
and 4 that they have no knowledge about the vehicle. Taking
note of the rival contentions, writ court, by judgment dated
10.02.2022, ordered thus:
"5. In other words, the contentions of the petitioner
and respondents 3 and 4 are cutting each other. There are
disputed questions of fact, so that this Court cannot
invoke jurisdiction under Article 226 of the Constitution.
After approaching police, if a crime is not registered,
alternative and efficacious remedy is available to the
petitioner under the Code of Criminal Procedure, the
petitioner can approach the jurisdictional court, if the
police does not take any action on the complaint. Since
such a remedy is available to the petitioner, question of
issuance of a writ, as sought for by him, does not arise for
consideration. The writ petition is devoid of merits and is
dismissed in limine."
3. Material on record further discloses that being
aggrieved, appellant/petitioner has filed R.P.No.271 of 2022
and after considering the rival contentions, vide order dated
23.03.2022, writ court disposed of the review petition as
W.A.No.568 of 2022
under:
"6. It is true that in Annexure-4 there is no positive
finding by the second respondent that the vehicle was sold
by the petitioner to a person in Ernakulam for Rs.7 lakhs. It
indicates that when telephonic enquiries were made with
the fourth respondent, he had made such a statement. That
is what recorded in paragraph 5 of the statement of facts in
Annexure-4. Anyhow, the vehicle was not searched and was
not traced and nobody could give the second respondent
information about the whereabouts of the vehicle. No
serious enquiry was also made into the allegations. He said
that the dispute is civil in nature; the third respondent, even
though is a lawyer in Haripad Bar, is involved in three
criminal cases under Sections 406, 420 etc. But he took the
stand that the reliefs as prayed for cannot be granted.
7. The learned counsel for the petitioner has a
grievance that the learned Senior Public Prosecutor did not
place the true facts before court. But it is clear that the
learned Senior Public Prosecutor had made representation
in line with Annexure 4. Whatever it may be, at least for two
reasons, review as prayed for cannot be granted.
8. Firstly, as stated earlier, it is a disputed question of
fact. The petitioner wanted to say that the vehicle was with
respondents 3 and 4, on the other hand, respondents 3 and
4 asserted that the petitioner himself had disposed the
vehicle to a person in Ernakulam. When the parties differ on
the facts of the case, court cannot legitimately issue a writ
in favour of the petitioner. Factual aspects cannot be gone
into by the writ court.
W.A.No.568 of 2022
9. Secondly, in order to consider an application for
review, there must be error apparent on the face of records
or there must be new and important aspects which could
not be produced at the time of disposal of the case. Here,
there is no error apparent on the face of the records. There
are disputed questions of facts, whether the vehicle was
given to the respondents 3 and 4 or sold by the petitioner
himself for Rs. 7 lakhs are varied versions given by the
parties. Anyhow, the second respondent had reasons to
believe that there is a dispute in the name of the vehicle
between the parties and therefore, the Investigating Officer
is justified in not registering the case. As the petitioner is
aggrieved by the same, he ought to have approached the
jurisdictional Magistrate giving a complaint seeking to
forward it to the police under Section 156(3) of the Cr.P.C. or
for enquiring under Sections 200 and 202 of the Cr.P.C. That
has not been done.
10. Moreover, it is the settled proposition of law that
when the police refuse to register a crime, even if
information about the commission of a cognizable offence is
related, then the remedy is not by invoking jurisdiction
under Article 226 of the Constitution, but as provided under
the Criminal Procedure Code. This has been reiterated by
the Hon'ble Supreme Court time and again. In the decision
reported in Aleque Padamsee and others v. Union of India
and others [(2007) 6 SCC 171], the Supreme Court after
conducting survey of various authorities on the subject
including All India Institute of Medical Sciences
Employees' Union case [(1996) 11 SCC 582] etc., it was
held that the remedy, if there is inaction or laches on the
W.A.No.568 of 2022
part of the police in registering the FIR, the modalities
contained under Section 190 read with Section 200 of the
Cr.P.C. are to be adopted. That being the position, I am
convinced that there is absolutely nothing to review the
order under challenge."
4. Though the judgment in W.P.(Crl) No.502 of 2021
dated 10.02.2022 is assailed on various grounds and
submissions were advanced by Ms.Aparna, learned counsel for
the appellant, we find no error in the impugned judgment.
Sufficient provisions are there in the Code of Criminal
Procedure to approach the court of competent jurisdiction
when the Police does not take action on the complaint
relating to a crime.
Writ appeal is, therefore, dismissed.
Pending interlocutory applications, if any, shall stand
closed.
Sd/-
S.Manikumar
Chief Justice
Sd/-
Shaji P.Chaly
Judge
vpv //true copy//
P.A. to Judge
