Kerala High Court
Vinod Valiyatoor vs Xxxxxx on 25 October, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
Friday, the 25th day of October 2024 / 3rd Karthika, 1946
WA NO. 1712 OF 2024
AGAINST JUDGMENT DATED 18/10/2024 IN WP(C) 33035/2024 OF THIS COURT
APPELLANT(S)/3RD PARTY
VINOD VALIYATOOR, AGED 46 YEARS, S/O. GOPALAKRISHNAN P., SREEKRIPA,
PANTHARANGADI POST, KARIPARAMBU, MALAPPURAM DISTRICT , PIN - 676306
BY ADVOCATE S.SREEKUMAR (B/O)
ADVS.M/S. N.M.MADHU AND C.S.RAJANI
RESPONDENT(S)/WRIT PETITIONERS/RESPONDENTS 1 TO 4
1. XXXXXXXXXX, AGED XXXX YEARS,XXXXX
2. XXXXXXXXXX AGED XXX YEARS ,XXXXX
3. STATE OF KERALA REPRESENTED BY HOME SECRETARY, KERALA STATE ROOM NO:
357(A), FIRST FLOOR, MAIN BLOCK, SECRETARIAT, TRIVANDRUM, PIN -
695001
4. SUPERINTENDENT OF POLICE, DISTRICT POLICE OFFICE, MALAPPURAM
DISTRICT, KERALA, PIN - 675505
5. ADDITIONAL POLICE SUPERINTENDENT, DISTRICT POLICE OFFICE, MALAPPURAM
DISTRICT, KERALA, PIN - 676505
6. STATION HOUSE OFFICER, PONNANI POLICE STATION, MALAPPURAM DISTRICT,
KERALA, PIN - 679586
BY ADV.SHAMEEM AHAMED - R1 & R2
V.TEKCHAND, SENIOR GOVERNMENT PLEADER FOR R3 TO R6
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of the judgment dated 18.10.2024 in W.P.(C)
NO.33035/2024, pending disposal of the above Writ appeal.
This Writ Appeal coming on for orders on 25/10/2024 upon perusing
the appeal memorandum the court on the same day passed the following:
EXHIBIT P3 COPY OF THE COMPLAINT FILED BEFORE SHO, PONNANI ON
07/09/2024.
Nitin Jamdar, C.J. & S. Manu, J.
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W.A.No. 1712 of 2024
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Dated this the 25th day of October, 2024
ORDER
Nitin Jamdar, C.J.
Heard Sri. S. Sreekumar, learned counsel for the Appellant, Sri.M.P.
Shameem Ahamed, learned counsel for Respondent Nos.1 and 2 and Sri.
V. Tekchand, learned Senior Government Pleader for Respondent Nos.3
to 6.
2. Though we are conscious of the gravity of the allegations made by
the Respondents/Complainants, since certain serious issues are raised by
the Appellant who was not a party before the learned Single Judge
advancing them for the first time in this appeal, while we grant
opportunity to the Respondents/Original Complainants to file a counter,
we are constrained to pass certain interim directions.
3. The Respondents/Complainants filed a complaint before the
Magistrate and the Magistrate called for a report from the superior officer
in the context of Section 175(4) of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (Sanhita, 2023), however no final order in the complaint
was passed. In the meanwhile, W.P.(C)No.33035 of 2024 was filed by
the Respondents/Complainants seeking the following directions:
"1. It is prayed to issue a writ of mandamus or such other
Writ or direction to the Respondent No.4 to Register an FIR
on the information received which contained cognizable
offense as Exhibit P3 Document and conduct Investigation.
2. The Petitioner No.2 respectfully prays that the Honorable
Court directs the Respondents No.1&3 to comply with the
Supreme Court's directions regarding the procedure for
recording statements and registering an FIR. Specifically,
prayed to order the respondents to:
a. Register an FIR immediately upon receiving a complaint
related to a cognizable offense, in accordance with the
law and the guidelines established by the Supreme Court.
b. Summon the witness for statement collection only after
the FIR is registered and not before, ensuring due process
and preventing any harassment of the witnesses.
3. The Petitioner respectfully prays before this Honorable
Court to declare that the immunity provided under Section
175(4) of BNSS shall not extend to crimes committed by a
public servant that are unrelated to their official duties.
Specifically, the Court is requested to rule that the protection
afforded to public servants does not apply to acts that
constitute criminal offenses committed outside the scope of
their official functions. This prayer is made to ensure that
public servants are held accountable for any criminal acts they
commit in their personal capacity, without the shield of
immunity intended for their official duties."
As regards the registration of FIR is concerned, prayer Nos.1 and 2 were
under consideration of the learned Magistrate.
4. As regards the conditions provided under section 174(4) of the
Sanhita, 2023 is concerned, because the Magistrate called for a report
from the superior officer, the Complainants, under the apprehension that
the matter stands concluded by the Magistrate, sought for this
declaration.
5. The records would show that the learned Magistrate had not
concluded the issue finally. We also note that the learned Single Judge
called for a report/explanation from the Magistrate to explain a judicial
order. Question arises whether an interference in an ongoing proceedings
was warranted when the Magistrate had not passed any final order, also
whether a report should have been called for to explain a judicial order.
6. The learned counsel for the Appellant submitted that under Section
174(4) of the Sanhita, 2023, it is after consideration of the assertion made
by the public servant that a final decision will have to be taken as to
whether the incident is arising out of the discharge of official duties or not
and by the impugned judgment, the contentions of the Appellant stand
foreclosed.
7. Therefore, various questions arise for consideration including that
of the procedure followed while passing the impugned order.
8. The learned counsel for the Respondents/Complainants submits
that pursuant to the impugned judgment, the learned Magistrate has
passed an order yesterday (24 October 2024), but copy is not available.
The learned Senior Government Pleader submits that FIR is not yet
registered.
9. At the request of the learned counsel for the
Respondents/Complainants to file counter affidavit, stand over to 1
November 2024.
10. The learned Senior Government Pleader states since the matter is
adjourned in these circumstances, the filing of FIR would be deferred till
the next date of posting.
Sd/-
Nitin Jamdar
Chief Justice
Sd/-
S. Manu
Judge
vpv
25-10-2024 /True Copy/ Assistant Registrar
