Bindhu R. Krishnan vs State Police Chief
2023 Latest Caselaw 7778 Ker

WP(C) NO. 15764 OF 2023            1




                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     WEDNESDAY, THE 26TH DAY OF JULY 2023 / 4TH SRAVANA, 1945
                          WP(C) NO. 15764 OF 2023
PETITIONER/S:

      1        BINDHU R. KRISHNAN
               AGED 48 YEARS
               W/O LATE.S. RADHAKRISHNAN NAIR, RESIDING AT
               KALEECKAL HOUSE, ELIPPAKKULAM POST, PALLICKAL,
               ALAPPUZHA DISTRICT, PIN - 690503

      2        ABHISHEK
               AGED 24 YEARS
               S/O LATE. S. RADHAKRISHNAN NAIR, RESIDING AT
               KALEECKAL HOUSE, ELIPPAKKULAM POST, PALLICKAL,
               ALAPPUZHA DISTRICT, PIN - 690503

               BY ADVS.
               K.SIJU
               S.ABHILASH
               ANJANA KANNATH



RESPONDENT/S:

      1        STATE POLICE CHIEF
               POLICE HEAD QUARTERS, VAZHUTHAKKAD,
               THIRUVANANTHAPURAM, PIN - 695014

      2        DIRECTOR GENERAL OF POLICE
               SIKKIM POLICE HEADQUARTERS, GANGTOK, SIKKIM, PIN -
               737101

      3        SUPERINTEND OF POLICE
               NAMCHI DISTRICT, STATE OF SIKKIM, PIN - 737126

      4        STATION HOUSE OFFICER
 WP(C) NO. 15764 OF 2023           2




               NAMCHI POLICE STATION, SOUTH SIKKIM, NAMCHI
               DISTRICT, SIKKIM, PIN - 737126

      5        INSPECTOR OF POLICE CYBER CELL
               NAMCHI POLICE STATION, NAMCHI SIKKIM, PIN - 737126

      6        THE BRANCH MANAGER
               STATE BANK OF INDIA, PALLIKAL BRANCH. ALAPPUZHA
               DISTRICT, PIN - 690503


OTHER PRESENT:

               SHRI.JITHESH MENON, SC, SRI. P.NARAYANAN, GP




       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 15764 OF 2023              3




                         P.V.KUNHIKRISHNAN, J
                     ---------------------------------------
                      W.P.(C.) No. 15764 of 2023
                      --------------------------------------
                  Dated this the 26th day of July, 2023


                                JUDGMENT

The above writ petition is filed with following prayers :

"i. To issue a writ of mandamus commanding the respondents 2 to 5 not to harass the petitioners in the guise of notice issued u/s 160 Cr.P.C.

ii. To call for the records leading to Exhibit P1, P3 and P4 and quash the same by issuing a writ of certiorari. iii. To direct the respondents 2 to 5 to record the statement of the petitioners by using the video conference facility as set up by the 1st respondent, without insisting personal appearance at Sikkim.

iv. To pass such other reliefs that this Hon'ble Court deem fit and proper."[SIC]

2. The petitioners herein are aggrieved by the alleged

harassment by respondent Nos. 2 to 5 and the proceedings

initiated against them as per Exts.P1, P3 and P4. The 2 nd

petitioner is the son of the 1st petitioner. The 1st petitioner is a

widow of an ex-serviceman who was working in Indian Army. It

is the case of the petitioners that the petitioners are surviving

with the family pension from the Military. The 1 st petitioner was

maintaining an account with the 6th respondent-Bank vide

account No. 32063560905 and drawing family pension from the

said account. It is stated in the writ petition that the 6 th

respondent informed the petitioners on 04.04.2023 that the 5 th

respondent had requested to freeze the account as no debit

vide a letter in connection with the investigation of a crime

registered by the 4th respondent at Namchi Police Station,

Sikkim as Crime No. 38/2022 under Secs. 417 and 420 IPC.

Immediately, the petitioners contacted the 6 th respondent and

they served a copy of the communication by the 5 th respondent

demanding freezing of account by invoking Sec. 102 Cr.P.C.

Ext.P2 is the said communication. It is submitted that the

petitioners contacted the 5th respondent and enquired about

Ext.P1. The 5th respondent has forwarded a copy of the FIR in

Crime No.38/20222 registered at Namchi Police Station and

Ext.P2 is the relevant pages of the FIR . The crime was

registered against unknown persons for allegedly swindling

Rs.1,56,000/- from the defacto complainant in connection with

the purchase of Amazone gift cards from two mobile numbers.

According to the defacto complainant, she had purchased 50

numbers of Amazone gift cards and she shared the link as

requested in two mobile numbers and they redeemed the gift

cards and thereby she sustained a loss of Rs.1,56,000/-.

Thereafter, on 12.04.2023, the 5th respondent issued a notice

under Secs. 160 Cr.P.C. to the petitioners directing them to

contact him over e-mail and WhatsApp and directed to appear

before him on 28.04.2023 to give statement. Exts.P3 and P4 are

the notices issued under Sec.160 Cr.P.C. It is submitted that

the petitioners are innocent persons and have no connection

with the alleged transaction referred in Ext.P2. They have no

connection with the account number or mobile number

referred in the FIR, is the submission. When the petitioners

received Exts.P3 and P4, they submitted Medical Certificate

showing their inability to travel up to Sikkim to give evidence

or statement. But, it is stated that the 5th respondent is

adamant for the personal appearance of the petitioners and

even threatened that they will be implicated in a crime. Ext.P5

is an email communication issued by the 5 th respondent to the

2nd petitioner. The petitioners are even ready to give their

statement in Kerala or through video conference. The same was

also rejected and hence, apprehending further harassment, this

writ petition is filed.

3. Heard the learned counsel for the petitioners and the

learned Public Prosecutor.

4. The counsel appearing for the petitioners reiterated

the contentions raised in this writ petition. The counsel for the

petitioners also takes me through the report from the Station

House Officer, Namchi Police Station by which it is stated that

the notice issued to the petitioners are already withdrawn. The

Public Prosecutor also takes me through the report submitted

by the Station House Officer, Namchi Police Station. This Court

considered the contentions of the petitioners and the Public

Prosecutor. The Public Prosecutor produced the report

submitted by the Station House Officer which was addressed to

the Advocate General of Kerala. It will be better to extract the

report.

6. "In a similar way during the analysis of money trail and corresponding Gmail accounts, Phone Numbers and UPI accounts the name of Abhishek R came as one of the persons involved in the transaction. Hence, there was prime suspicion on the above mentioned person for being involved in the above mentioned crime.

7. So, Sir, the next step in the investigation was to seize the mobile phones etc. involved in the crime and for which a statement of above mentioned prime suspect along with the mobile and SIM card issued in their name is very much vital for the case.

Since although the present evidences in hand are pointing towards the two persons, but I did'nt want to arrest them before being 100% sure. And it is possible only after technical analysis of mobile phones; hence I did not go for arrest directly although the maximum punishment for the offence is of 7 years.

As any case the proceeds of crime are being seized u/s 102 CrPC to be handed over to the victim after the order of the Hon'ble Court. Since in this case also proceeds of the crime i.e. Rs. 1,56,000/- was channelized firstly through Amazon Gift Cards then through PUBG Account and after that it is very hard to locate due to huge data of transactions and several layers of money transfer. Hence, it is suspected that the

proceeds of the crime was being used in the bank accounts of the suspects because the accounts were opened using the same documents which were found to be suspicious during the investigation. Hence, the debit freezing of the accounts was made u/s 102 Cr.P.C. and intimation was given to Hon'ble Court.

Further, this-is-to-state that the issuing of 160 Cr.PC notices for joining the investigation was an inadvertent mistake made during the course of investigation and as soon as it came to know that was a mistake, it was withdrawn immediately with word of regret.

Sir, this is to accept that the actions were taken in Good faith and in the course of justice and the actions were taken with a view that no harassment is caused to the above mentioned suspects to arresting them without being 100% sure. The human error made by sending the notices u/s 160 Cr.PC has been already rectified and highly regretted."

5. So, it is clear that the Station House Officer, Namchi

Police Station informed that Sec.160 Cr.P.C. notices for joining

the investigation was an inadvertent mistake and made during

the course of investigation and it is withdrawn. If that is the

case, I think the prayers in this writ petition can be allowed.

The impugned orders can be set aside. If the questioning of the

petitioners are necessary in connection with the crime

No.38/2022 of Namchi Police Station, Sikkim, the Station

House Officer is free to communicate the 1 st respondent

through his superiors and the questioning of the petitioners can

be done through video conference.

Therefore, this writ petition is disposed of with the

following directions :

1) Exts.P1, P3 and P4 are quashed.

2) The respondent Nos. 2 to 4 are free to record the

statement of the petitioners by using video conference

facility in consultation with the 1 st respondent, if

necessary.

Sd/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF WP(C) 15764/2023

PETITIONER EXHIBITS

Exhibit P1 THE COPY OF REQUISITION GIVEN BY THE 5TH RESPONDENT TO THE 6TH RESPONDENT ON 4.4.2023 U/S 102 CR.P.C

Exhibit P2 THE COPY OF THE RELEVANT PAGES OF THE FIR DATED 25.7.2022 OF NAMCHI POLICE STATION, NAMCHI SOUTH DISTRICT, SIKKIM IN CRIME NO.38/2022

Exhibit3 THE COPY OF NOTICE DATED 12.4.2023 RECEIVED BY THE 1ST PETITIONER U/S 160 CR.P.C FROM THE 6TH RESPONDENT

Exhibit P4 THE COPY OF NOTICE DATED 12.4.2023 RECEIVED BY THE 2ND PETITIONER U/S 160 CR.P.C FROM THE 6TH RESPONDENT

Exhibit P5 THE COPY OF MAIL DATED 2.5.2023 ISSUED BY THE 5TH RESPONDENT TO THE 2ND PETITIONER

Exhibit P6 THE COPY OF MAIL DATED 16.5.2023 ISSUED BY THE 3RD RESPONDENT TO THE COUNSEL FOR THE PETITIONERS AND THE ATTACHMENTS