P. Rajan vs State Of Kerala
2024 Latest Caselaw 23154 Ker

Kerala High Court

P. Rajan vs State Of Kerala on 2 August, 2024

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
                W.P.(C) NO. 27619 OF 2020
PETITIONER:

         P. RAJAN,
         AGED 61 YEARS
         S/O.LATE PACHAN, SARIGAMA, 27/1482, CONVENT
         ROAD, VANJIYOOR, THIRUVANANTHAPURAM - 695 035.

         BY ADVS.
         SAIBY JOSE KIDANGOOR
         SRI.BENNY ANTONY PAREL
         SMT.S.SIBHA
         SHRI.ANOOP SEBASTIAN
         SMT.DEEPA VALENTINE LESLIE


RESPONDENTS:

    1    STATE OF KERALA
         REP.BY THE SECRETARY, DEPARTMENT OF HOME
         AFFAIRS, GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM - 695 001.

    2    DIRECTOR GENERAL OF POLICE
         VAZHUTHACAUD, THIRUVANANTHAPURAM,
         KERALA - 695 010.

    3    DIRECTORATE OF CRIME BRANCH
         HEADED BY ADDITIONAL DIRECTOR GENERAL OF
         POLICE, EANCHAKKAL, THIRUVANANTHAPURAM,
         KERALA - 695 008.

    4    THE COMMISSIONER OF POLICE
         KOCHI CITY, ERNAKULAM - 682 011.

    5    THE ASSISTANT COMMISSIONER OF POLICE
         DISTRICT C BRANCH, THRIKKAKARA, ERNAKULAM
         DISTRICT-682 021.
                                 2
W.P.(C) No.27619 of 2020



      6       THE STATION HOUSE OFFICER
              ERNAKULAM TOWN NORTH POLICE STATION,
              ERNAKULAM - 682 018.

      7       THE STATION HOUSE OFFICER
              ERNAKULAM TOWN SOUTH POLICE STATION, KOCHI,
              KERALA - 682 015.

              BY SMT SHEEBA THOMAS, GOVERNMENT PLEADER


          THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING ON 17.07.2024, THE COURT ON 02.08.2024 DELIVERED
THE FOLLOWING:
                                      3
W.P.(C) No.27619 of 2020



                    P.G. AJITHKUMAR, J.
   -----------------------------------------------------------
                 W.P.(C) No.27619 of 2020
   -----------------------------------------------------------
           Dated this the 2nd day of August, 2024

                                JUDGMENT

The petitioner is the defacto complainant in crime

No.174 of 2019 of Ernakulam Town South Police Station. He is

also the accused in crime No.2113 of 2018 of Ernakulam Town

North Police Station. He seeks a writ of mandamus

commanding the 2nd respondent to entrust investigation in

crime No.174 of 2019 with a senior police officer to be

conducted under the supervision of respondents No.2 and 3.

He also seeks a direction to the 5th respondent not to finalise

the final report in Crime No.2113 of 2018 till the investigation

in crime No.174 of 2019 is concluded.

2. The petitioner is a film producer. The de facto

complainant in Crime No.2113 of 2018 of Ernakulam Town

North Police Station (referred to as 'defacto complainant',

hereafter) acted in a minor role in his movie 'Chunkzz'. The

acquaintance between them developed into intimacy. The

petitioner would contend that she used to obtain money from

him on the pretext that her father was a cancer patient.

Eventually she started blackmailing the petitioner and

demanding huge amounts. It was on 26.12.2018. She asked

the petitioner to reach Olive Down Hotel, Kadavanthra and he

was threatened at that hotel.

3. The petitioner lodged a complaint regarding the

threat before the Assistant Commissioner of Police,

Sankumugham on 28.12.2018. Later, on recording his

statement, Vanchiyoor police registered crime No.105 of 2019

under Section 385 of the Indian Penal Code, 1860. The said

crime was transferred to Ernakulam Town South Police Station

pursuant to which crime No.174 of 2019 was registered.

4. The petitioner would contend that crime No.2113 of

2018 was registered without any basis. The de facto complainant

lodged the complaint with a view to tarnish the image of the

petitioner. She maintained a good relationship with the petitioner

till December, 2018 as could be seen from Ext.P6, which means

she was subjected to rape by the petitioner on 10.04.2017 is

false. Ext.P6 is the WhatsApp messages between them. The de

facto complainant changed twice the date of alleged rape. She

did so on realising that on the two dates she mentioned initially

the petitioner was not available in India. Although three

prominent persons in the film industry were involved in the

dispute between the petitioner and the de facto complainant, the

investigating officer did not choose to question them. The threat

and intimidation perpetrated by the de facto complainant for

extracting money is evident from their mobile phone

conversation, a recording of which is contained in Ext.P3 C.D.

Crime No.2113 of 2018 was registered without even recording

the statement of the de facto complaint, which is the mandate of

Section 154 of the Code of Criminal Procedure, 1973. The

petitioner is totally innocent and all materials are consistent with

that fact. However, the investigating officers, without

appreciating those facts, have been proceeding in a wrong

direction. No effective investigation has so far been conducted in

crime No.174 of 2019. Pointing out those circumstances, the

petitioner has filed this writ petition.

5. Respondent No.5 filed a statement for himself and

on behalf of respondents No.4, 6 and 7. Steps taken for the

purpose of investigation in crime No.2113 of 2018 and crime

No.174 of 2019 have been explained in the statement. It was

mentioned that the investigation in both the crimes were

almost complete.

6. On 11.10.2021, this Court directed the learned

Government Pleader to get a report filed with respect to

Exts.P3 and P6. In obedience to that direction, respondent

No.5 filed the clarification report dated 23.10.2021. Apart

from explaining about Exts.P3 and P6, what transpired and

the materials collected during the investigation in the

aforementioned crimes are narrated. It is also submitted that

a final report was already submitted before the court in crime

No.174 of 2019. That crime was referred as 'false'. The report

was submitted on 17.06.2021. It is also stated that the

investigation in crime No.2113 of 2018 of Ernakulam Town

North Police Station is already complete and it was done in a

just and appropriate manner. The allegation that there were

lapses in the investigation was denied. It is also stated that

the materials collected were consistent with the allegations

contained in the complaint submitted by the de facto

complainant. The writ petition is accordingly sought to be

dismissed.

7. The petitioner has submitted a reply statement

controverting the assertions and allegations in the statements

submitted by respondent No.5.

8. Heard the learned counsel for the petitioner and

the learned Government Pleader.

9. On 11.10.2021 this Court passed an interim order.

The said interim order was extended from time to time. The

learned Government Pleader, after adverting to the reliefs

claimed in the writ petition, submitted that having the final

report in crime No.174 of 2019 already been submitted before

the court, this writ petition has become infructuous. It is

stated in the report dated 23.10.2021 submitted by the

respondent No.5 that the final report in crime No.174 of 2019

was submitted before the court on 17.06.2021. The

conclusions in the said final report was that the allegations set

forth in the said crime are false. For the better appreciation of

the said contention, the reliefs (a) and (b) sought in the writ

petition are extracted below:

"(a) Issue a writ of mandamus or appropriate writ, orders or directions commanding the 2nd respondent to entrust the further investigation in Cr.No.174/2019 of Ernakulam Town South Police Station to a Superior Officer under the supervision of 2nd and 3rd respondents, for effective and meaningful enquiry, investigation and appropriate actions in the crime in question.

(b) Issue appropriate direction directing the 5th respondent not to finalize the charge if any in crime No.2113/2018 of Ernakulam North Police Station without completing the investigation in Crime No.174/2019 of Ernakulam Town Police Station."

10. As pointed out above, much before this Court

passing the interim order, the final report in crime No.174 of

2019 was submitted. The interim order is dated 11.10.2021.

The final report was filed on 17.06.2021. The relief (a) in the

writ petition is to entrust the investigation in crime No.174 of

2019 with a senior police officer and relief (b) is to direct

respondent No.5 not to finalise the final report in crime

No.2113 of 2018 till investigation in crime No.174 of 2019 is

concluded. Since the final report in crime No.174 of 2019 has

already been submitted before the court, both the said reliefs

became practically infructuous.

11. The final report was submitted after filing of this

writ petition. True, only subsequent to filing of the final report,

the interim order was granted. However, it being after filing of

this writ petition, it is incumbent upon this Court to consider

the merits of the contentions of the petitioner. I may,

however, recall the principle that the powers of this Court to

interfere with an investigation is an extraordinary power and it

is to be used very sparingly and in exceptional circumstances.

12. The learned counsel for the petitioner would submit

that if the conversation contained in Ext.P3 C.D. and the chats

between the petitioner and the de facto complainant

contained in Ext.P6 were appreciated in the proper

perspective, respondent No.5 could have well understood that

the complaint lodged by the de facto complainant was false

and the she really had intimidated the petitioner with a view

to extract money from him. When she changed the date of the

alleged rape repeatedly, that by itself would show that the

allegation was a false story created only for the purpose of

threatening the petitioner. If such an incident occurred, as

lastly asserted by her, on 26.09.2017, there would not have

any cordial relationship between them. Whereas, as is

reflected from Ext.P6, till 26.12.2018 their relationship was

cordial. It was on that date the petitioner was intimidated and

demanded money. In that context investigating officer's

failure to record the statements of the three persons who

intervened in the dispute and named by the petitioner became

fatal. It is accordingly contended that faulty investigation

resulted in a total travesty of justice.

13. In the statements submitted by respondent No.5

the allegations set forth by the petitioner are answered and

explained. The reason why the de facto complainant did not

lodge a complaint in time and continued her relationship with

the petitioner has been mentioned. That fact has been

seriously investigated and evidence was collected. Similarly,

the reason for change in the date of incident and rape

allegedly committed by the petitioner was also seen explained

by the de facto complainant.

14. The duty of an investigating officer is to collect

evidence concerning matters in issue and relevant facts. The

alleged threat, which is subject matter of crime No.174 of

2019 occurred on 26.12.2018. It may be true that

subsequently a few persons intervened in the dispute, the

evidence concerning that may not be relevant in the matter of

proof of commission of the offence. Those facts may be

relevant, but, are facts to be proved by evidence and

marshelled at that time of trial. The contentions raised by the

petitioner and mentioned above have a telling effect on the

merits of the case in crime No.2113 of 2018 if a trial in that

matter would take place. On an anxious consideration of the

materials on record, I do not find sufficient grounds for

ordering a further investigation in crime No.174 of 2019. None

of the contentions raised by the learned counsel for the

petitioner do not enable the petitioner to claim such a relief

rather. In view of that matter, I do not venture further to

deliberate upon the contentions of the petitioner for, the same

would cause prejudice to both parties if a trial ultimately

happens in crime No.2113 of 2018. In the circumstances, I

find that this writ petition lacks merits. It is accordingly

dismissed.

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

APPENDIX OF WP(C) 27619/2020

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE FIR NO.2113/2018 OF ERNAKULAM NORTH POLICE STATION DATED 29.12.2018 EXHIBIT P2 TRUE COPY OF THE MAIL EVIDENCING THE BANK TRANSACTION TO THE ACCOUNT OF MR.JAMES EXHIBIT P3 THE CD CONTAINING THE TELEPHONIC CONVERSATION OF THE DE-FACTO COMPLAINANT WITH THE PETITIONER FROM MOBILE NUMBERS 8921629520 TO 9447072324 EXHIBIT P4 TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 8.1.2019 EXHIBIT P5 TRUE COPY OF THE ORDER IN CRL.

M.C.NO.60/2019 DATED 10.1.2019 EXHIBIT P6 TRUE COPIES OF THE WHATSAPP MESSAGES IN THE MONTH OF NOVEMBER AND DECEMBER 2018 FROM THE NUMBER 8921629520 USED BY THE DE-FACTO COMPLAINANT TO THE NUMBER 00971529259918 USED BY THE PETITIONER EXHIBIT P7 TRUE COPY OF THE FIR NO.174/2019 OF THE ERNAKULAM TOWN SOUTH POLICE STATION DATED 30.1.2019 EXHIBIT P8 TRUE COPY OF THE REPRESENTATION PREFERRED BEFORE THE 2ND RESPONDENT DATED 24.11.2020