Kerala High Court
Bilkheez Beegum S vs State Of Kerala on 12 April, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
WP(CRL.) NO. 203 OF 2023
PETITIONERS:
1 BILKHEEZ BEEGUM S.
AGED 49 YEARS,D/O. (LATE) SHAMSUDHEEN,
KARTHIKA,
VIKAS NAGAR 31, T.K.M. COLLEGE P.O.,
KOLLAM DISTRICT - 691005
2 MUMTHAZ BEEGUM S.
AGED 55 YEARS, D/O. (LATE) SHAMSUDHEEN
KANJIRATHUM MOODU VEEDU,
UNIVERSAL NAGAR - 75, KILIKOLLOOR P.O.,
KOLLAM - 691004
3 SHAHANAZ BEEGUM S.
AGED 52 YEARS
VALAVIL VEEDU,
CHATHINAMKULAM, CHANDANATHOPPU P.O.,
KOLLAM DISTRICT - 691014
4 HANEEZ BEEGUM S
AGED 48 YEARS,D/O (LATE) SHAMSUDHEEN,
KARTHIKA,
VIKAS NAGAR 31,T.K.M. COLLEGE P.O.,
KOLLAM DISTRICT - 691005
BY ADVS.
SRI.K.A.MOHAMED HARIS
SRI.P.T.ABHILASH
SRI.K.M.SALIM
RESPONDENTS:
1 STATE OF KERALA
REP. BY SECRETARY TO HOME DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695001
W.P.(Crl.) No.203/23 -:2:-
2 STATE POLICE CHIEF
OFFICE OF THE STATE POLICE CHIEF,
VELLAYAMBALAM,
THIRUVANANTHAPURAM - 695010
3 DISTRICT POLICE CHIEF,
OFFICE OF THE DISTRICT POLICE CHIEF,
KOLLAM CITY, KOLLAM - 691001
4 ADDITIONAL DIRECTOR GENERAL OF POLICE
(CRIME BRANCH)
STATE CRIME BRANCH,
CBCID HEADQUARTERS, ENCHAKKAL,
THIRUVANANTHAPURAM - 695008
5 ASSISTANT COMMISSIONER OF POLICE
DISTRICT CRIME BRANCH, KOLLAM CITY,
KOLLAM - 691001
6 STATION HOUSE OFFICER
KILIKOLLOOR POLICE STATION,
MANGAD P.O., KOLLAM - 691015
SRI. M.C. ASHI, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 20.03.2024, THE COURT ON 12.04.2024 DELIVERED
THE FOLLOWING:
W.P.(Crl.) No.203/23 -:3:-
BECHU KURIAN THOMAS, J.
--------------------------------
W.P.(Crl.) No.203 of 2023
---------------------------------
Dated this the 12th day of April, 2024
JUDGMENT
Petitioners seek various directions including constitution of a
special investigation team to investigate into the death of their father,
Sri.Shamsudheen, apart from seeking an investigation into an
alleged bogus sale of a house.
2. Petitioners' father, Sri.Shamsudheen died on 25.09.2017.
According to the petitioners, though they had submitted several
complaints, there was no enquiry or investigation into his suspicious
death, and therefore, they have approached this Court under Article
226 of the Constitution of India for appropriate directions.
3. A statement has been filed by the Investigating Officer
pointing out that after the death of petitioner's father, a complaint was
received raising allegations regarding the circumstances that led to
the death. Immediately, the Station House Officer of Kilikollur Police
Station conducted an enquiry and realizing that the deceased died
naturally due to serious illness, no further proceedings were initiated.
The statement of the Nephrologist who had treated the deceased
was recorded and according to the said doctor, Sri. Shamsudheen
was undergoing treatment since 2009 as an outpatient in the
Department of Nephrology, apart from undergoing treatment for other
illnesses like diabetes. The statement also pointed out that due to
chronic kidney disease, Sri. Shamsudheen was undergoing regular
dialysis from January 2017 onwards, and due to a respiratory
infection, he was admitted to the intensive care unit of the
Travancore Medical College on 22.09.2017. Thereafter, he was
under the support of a ventilator due to the severity of his illness, and
later, on 25.09.2017 at 11.10 am, he succumbed to his illness.
4. The statement mentions that the cause of death, as per the
report of the Travancore Medical College, was chronic kidney
disease, end stage renal disease, aspiration pneumonia, sepsis -
septic shock, multi infarct state, and cardiopulmonary arrest. In view
of the statement of the doctor who treated Sri. Shamsudheen, there
was no suspicion surrounding the death and the petition was closed.
Since he died in the hospital, the postmortem was not carried out.
The statement also refers to various disputes pending between the
petitioners and their mother against the deceased Shamsudheen.
Allegations regarding deliberate dereliction of duty and negligence
were all denied.
5. I have heard Sri. Mohamed Haris, the learned counsel for
the petitioners, and Sri. Ashi M.C., the learned Public Prosecutor.
6. During the hearing, this Court called upon the Public
Prosecutor to make available the file relating to the enquiry allegedly
conducted by the sixth respondent. I have perused the said records
also.
7. There were property disputes between the petitioners'
mother and her former husband - the deceased Shamsudheen.
Petitioners father had divorced their mother and had remarried.
Though petitioners raised allegations surrounding the death of their
father, it is evident, on going through the records produced at the
direction of the Court, that the deceased was suffering from various
illnesses and died at the hospital after being on ventilator support for
few days. There is no dispute that petitioners' father was suffering
from chronic kidney disease apart from other heart ailments. At the
time of his death, Sri. Shamsudheen was 73 years old. From the
enquiry report, it is noticed that the Department of Nephrology at the
Travancore Medical College Hospital had diagnosed
Sri. Shamsudheen as suffering from chronic kidney disease, end
stage renal disease, aspiration pneumonia - sepsis - septic shock
coronary artery disease, post coronary artery bypass graft, multi
infarct state. The case summary of the patient is seen recorded as
below:
"Mr. Shamsudeen kutty, 73 year old male is a known case of Diabetic
Nephropathy/ Systemic Hypertension, Chronic kidney disease - End
stage renal disease/ post coronary artery bypass graft/ old
cerebrovascular accident - multi infarct state admitted complaints of
cough with expectorant complaints, vomiting on 23/9/2017. Patient
had history of dyspnoea, desaturation, shifted to Medical intensive
care unit-I. Chest X-ray suggestive of right lower zone consolidation,
aspiration pneumonia. Treated with intravenous antibiotics and with
conservative management. On 24/9/2017, patient went bradycardia
and cardiac arrest, cardiopulmonary resuscitation done for 15 minutes,
reverted and intubated and connected to mechanical ventilator.
Patient was on hypotension, multiple ionotropes support. Done
intermittent dialysis on 25/9/2017. Patient went again cardiac arrest
and not reverted and declared 25/9/2017 at 11.10 AM."
8. On a perusal of the enquiry report, it is evident that the
father of the petitioners died due to medical ailments, that too, in a
hospital and while he was on ventilator support. The allegations now
raised by the petitioners are all with an eye on the civil disputes
pending against their father's brother. The death of the petitioners'
father is now attempted to be used by the petitioners for ulterior
purposes. The jurisdiction of this Court cannot be utilised to seek
ulterior objectives of the petitioners.
9. Though a crime was not registered pursuant to the
complaint and only an enquiry was conducted, in the circumstances
of the case, the same cannot be found fault with. The death of
Sri. Shamsudheen was identified on enquiry as not due to any
unnatural circumstances but due to various illnesses. Further, there
were family disputes between the parties, including matrimonial and
civil. Sri. Shamsudheen had remarried after divorcing the mother of
the petitioners which had led to various disputes between them.
M.C. No. 31/2007 before the Judicial First Class Magistrate's Court-I,
Kollam, was filed by the mother of the petitioners against
Sri.Shamsudheen, as evident from Ext.P3. In the objection filed in
the said case, the deceased Shamsudheen had alleged that his
marriage with the mother of the petitioners (Smt. Suhara Beevi) was
dissolved on 03-10-2008 and also that due to cruelty from the mother
of the petitioners, he had to leave his home and was under the
support of his friends even for his medical treatments. In the said
case, an interim residence order was issued. Another litigation, as
O.S No. 100/2010, was initiated by the mother of the petitioners
against the deceased Sri. Shamsudheen before the Munsiff Court,
Kollam, which was dismissed on 31-05-2013 as per Ext.P7. Thus,
there were seriously contested disputes between the parties arising
from matrimonial and family issues.
10. In the statement filed on behalf of the sixth respondent, it
was stated that the complaint from the first petitioner and their
mother was received after the body was buried. However, it was
clarified during the arguments that the said statement was based on
the date mentioned in the acknowledgment. But, in fact, the
complaint was received while the body of Sri. Shamsudheen was
about to be buried, that too after his face was covered for burial. It
was also submitted that immediately the burial proceedings were
directed to be stopped and the sixth respondent went to the Hospital
and conducted a preliminary enquiry. Thereafter, the burial took place
after he was satisfied about the natural death of Sri. Shamsudheen
based on the medical records and the information from the doctor.
Though the aforesaid conduct is not fully appropriate, in the given
circumstances, this Court does not feel it to be a reason to direct an
enquiry.
11. In Lalitha Kumari v. Government of Uttar Pradesh and
Others [(2014) 2 SCC 1], it was held that if any information
disclosing the commission of a cognizable offence is laid before an
officer-in-charge of the police station, the said police officer has no
other option except to register a case on the basis of such
information. However, exemptions were carved out in the matter of
certain categories of cases wherein, before the registration of FIR, a
preliminary enquiry was necessary. The following conclusions arrived
at by the Supreme Court are relevant:
(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 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 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."
12. The sixth respondent had not registered an FIR on
receiving the complaint and instead proceeded to conduct an
enquiry. Since there were family disputes between the parties and
the death was due to natural circumstances, that too, in a hospital,
the complaint did not disclose any cognizable offence. In fact, a
perusal of the complaint filed by the first petitioner, along with her
mother, mentions that they came to know about the death of
Shamsudheen only from the Court, when the Counsel appearing for
the deceased informed that his party had died. The SHO had, on
receipt of the complaint, conducted a preliminary inquiry and found
that no cognizable offence was made out. In such circumstances,
there is no illegality in the procedure adopted by the sixth
respondent. Hence the exercise of jurisdiction under Article 226 of
the Constitution of India is unwarranted.
Accordingly, I find no merit in this writ petition and it is
dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE RESIDENCE AND
PROTECTION ORDER DATED 22.05.2007 PASSED
IN M.C. NO. 31 OF 2007 FILED BY THE
MOTHER OF THE PETITIONERS
Exhibit P2 TRUE COPY OF THE SALE DEED NO. 3157/2009
AND THE ANNEXURE SHOWING THE DETAILS OF
AREA OF THE BUILDING.
Exhibit P3 TRUE COPY OF THE RESIDENCE AND
PROTECTION ORDER DATED 28.11.2011 PASSED
IN CRL. M.P. NO. 9210 OF 2011 IN M.C.
NO. 31 OF 2007.
Exhibit P4 TRUE COPY OF THE THUMP IMPRESSIONS AND
SIGNATURES OF THE PURCHASER SRI. NAZAR,
PUT IN THE REGISTER BOOK OF SRO RECEIVED
UNDER RTI ACT.
Exhibit P5 TRUE COPY OF THE LAND TAX RECEIPTS
PRODUCED BY SRI.NAZAR IN THE MUNSIFF
COURT, KOLLAM AND SUB COURT, KOLLAM
ALONG WITH THE COUNTER CLAIM.
Exhibit P6 TRUE COPY OF THE RELEVANT PAGES OF THE
JUDGMENT AND DECREE IN O.S. 100/2010.
Exhibit P7 TRUE COPY OF THE RELEVANT PAGES OF THE
JUDGEMENT IN O.S. 51/2011.
Exhibit P8 TRUE COPY OF THE BUILDING TAX RECEIPTS
ISSUED FROM KOLLAM MUNICIPAL
CORPORATION, IN THE NAME OF
SRI.SHAMSUDHEEN DURING 2002, 2006 &
2008.
Exhibit P8 (a) TRUE COPY OF THE ORDER DATED 06.03.2010
ISSUED BY KOLLAM MUNICIPAL CORPORATION.
Exhibit P8 (b) TRUE COPY OF THE BUILDING TAX RECEIPTS
ISSUED FROM KOLLAM MUNICIPAL
CORPORATION, IN THE NAME OF SRI. NAZAR
DURING 2010 & 2012.
Exhibit P8 (c) TRUE COPY OF THE BUILDING TAX RECEIPTS
ISSUED FROM KOLLAM MUNICIPAL
CORPORATION, IN THE NAME OF
SRI. SHAMSUDHEEN DURING 2014 & 2015.
Exhibit P9 TRUE COPY OF THE RTI APPEAL DATED
12.08.2020 AND ITS REPLY DATED
24.09.2020.
Exhibit P10 TRUE COPY OF THE RTI APPLICATION DATED
19.06.2020 AND ITS REPLY RECEIVED DATED
20.05.2021, FROM THE PUBLIC INFORMATION
OFFICER OF THE KOLLAM MUNICIPAL
CORPORATION.
Exhibit P11 TRUE COPY OF THE ORDER PASSED BY THE
STATE INFORMATION OFFICER DATED
01.12.2021.
Exhibit P12 TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE 1ST PETITIONER BEFORE THE 6TH
RESPONDENT SHO ON 25.09.2017 ALONG WITH
THE RECEIPT.
Exhibit P13 TRUE COPY OF ONE OF THE ADDITIONAL
COMPLAINT SUBMITTED BY THE PETITIONERS
BEFORE THE 6TH RESPONDENT SHO ON
22.07.2019 ALONG WITH THE RECEIPT.
Exhibit P14 TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE 1ST PETITIONER BEFORE THE 3RD
RESPONDENT DISTRICT POLICE CHIEF ON
08.08.2019
Exhibit P15 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONERS BEFORE THE
DISTRICT POLICE CHIEF ON 12.11.2022
ALONG WITH THE POSTAL RECEIPT &
ACKNOWLEDGMENT.
