Kerala High Court
Gopakumar vs State Of Kerala on 8 July, 2025
Author: V.G.Arun
Bench: V.G.Arun
Crl.M.C.No.9070/24
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
CRL.MC NO. 9070 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 30.09.2024 IN CRMP
NO.7301 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-III,NEYYATTINKARA
PETITIONER:
GOPAKUMAR,
AGED 53 YEARS
S/O. KRISHNAN, KUNNATHU GOVINDA VILASAM, BUNGLOW,
PERUMPAZHUTHOORP.O., NEYYATTINKARA,
THIRUVANANTHAPURAM, PIN - 695126
BY ADV SHRI.V.S.BABU GIREESAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE HOME SECRETARY, SECRETARIATE,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS,
VAZHUTHACADU,THIRUVANANTHAPURAM, PIN - 695014
Crl.M.C.No.9070/24
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3 THE SUPERINTENDENT OF POLICE,
DISTRICT OFFICE, PMG, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM, PIN - 695033
4 THE STATION HOUSE OFFICER,
BALARAMAPURAM POLICE STATION, BALARAMAPURAN
P.O.,THIRUVANANTHAPURAM, PIN - 695501
5 KOMALAN,
AGED 52 YEARS
S/O. KESAVAN,THIRUPURAM, KARTHIKA BHAVAN,
THIRUPURAM P.O., NEYYATTINKARA,
THIRUVANANTHAPURA, PIN - 695123
BY ADVS.
SRI.R.T.PRADEEP
SHRI.NIRANJAN T. PRADEEP
OTHER PRESENT:
SMT. PUSHPALATHA. M.K, SR.PP.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
04.03.2025, THE COURT ON 08.07.2025 PASSED THE FOLLOWING:
Crl.M.C.No.9070/24
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V.G.ARUN, J
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Crl.M.C.No.9070 of 2024
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Dated this the 8th day of July, 2025
ORDER
The petitioner is the complainant in Crl.M.P. No.7301 of
2024 pending on the files of the Judicial Magistrate of First
Class-III, Neyyattinkara. The complaint is filed on behalf of a
person named Thulaseedharan, who the petitioner claims to be
his close relative. The allegations in the complaint are to the
following effect;
Thulaseedharan had borrowed Rs.3 lakhs from the 5 th
respondent 13 years back and had executed a sale deed with
respect to his property with a building as guarantee. The sale
deed was executed on the specific understanding that, once the
amount is returned, the sale deed will be cancelled. In view of
the understanding, Thulaseedharan continued to be in
possession of the property. While so, Thulaseedharan and his
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wife went to the United Kingdom on 05.08.2024 in connection
with his grandson's treatment for brain tumor. Utilising the
opportunity, the 5th respondent broke into the building, removed
valuable items and put a new lock on the door. Although
Thulaseedharan sent complaints to the Superintendent of Police
(Rural) as well as the Director General of Police, no fruitful
action was taken. Therefore, as authorised by Thulaseedharan,
petitioner filed the complaint seeking a direction to the 4 th
respondent to register a crime and investigate the offence
committed by the 5th respondent.
2. As part of enquiry into the complaint, the Magistrate
sought for a report from the 4th respondent. Accordingly, the 4 th
respondent submitted Annexure VI report. Thereupon the
learned Magistrate directed the complainant to be present for
taking sworn statement. This Crl.M.C is filed aggrieved by the
said direction.
3. Learned counsel for the petitioner contended that, on
the facts and circumstances of the case, police investigation is
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imperative. According to the counsel, insofar as theft is
alleged, recovery is essential, which cannot be done as part of
an enquiry. Reliance is placed on the decision of the Apex
Court in Om Prakash Ambadkar v. State of Maharashtra
and Others [2025 SCC OnLine SC 238] to point out that the
Magistrate should remain vigilant with regard to the nature of
allegations and direct police investigation, if such course of
action is conducive to justice. The decision in Lalita Kumari v.
Government of Uttar Pradesh and Others [(2014) 2 SCC 1]
is also pressed into service to buttress the argument that in
appropriate cases the Magistrate should not hesitate to order
police investigation.
4. Learned counsel for the 5 th respondent raised a
preliminary objection pointing out that the complaint is not
accompanied by an affidavit as mandated by the decision of the
Apex Court in Babu Venkatesh and Others v. State of
Karnataka and Another [(2022) 5 SCC 639]. It was then
contended that the discretion to decide whether to conduct
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enquiry or order police investigation is vested with the
Magistrate and unless the decision is absurd or patently illegal,
this Court should not interfere. According to the counsel, it is
pointed out that the 5th respondent is in possession of the
property from 07.09.2011, the date on which the sale deed was
executed and has preferred a civil suit seeking to injunct
Thulaseedharan and his wife from trespassing into the property.
5. The contention raised on behalf of the 5 th respondent
that the complaint is liable to be dismissed as it is not
accompanied by an affidavit is a matter to be considered by the
Magistrate. Therefore, I am not venturing to decide that issue.
6. From the arguments advanced, the other question
arising for consideration is, whether the direction of the
Magistrate, requiring the petitioner to be present for recording
sworn statement warrants interference. In this context, it will
be appropriate to understand the legal position by referring to
the well considered decision of this Court in Superintendent
of Police, C.B.I v. State of Kerala [2005 (3) KLT 823], the
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relevant portion of which reads as under;
"15. A person who is able to exert influence on the police
may file a complaint falsely implicating innocent persons with a
solitary prayer to forward the same to the police. In such cases the
only intention of the complainant will be to harass the opponent
using police. It is the duty of the Court to punish a person who is
guilty of a criminal offence. So, the prayer in the complaint must be
to try the accused and to punish him in case he is found guilty of
any offence. So when the sole prayer in the complaint is to refer the
same to police, the Magistrate shall approach the matter with care
and caution and insist for materials to show a prima facie case.
There is also a possibility that a person who is involved in a criminal
case may misuse the opportunity to fabricate evidence to be used
as defence evidence in the case in which he is an accused. The
Magistrate shall not allow an unscrupulous criminal to use the Court
as a tool for harassing innocent persons or for fabricating false
evidence.
16. In V. K. Sreenivasan v. D.G. Nair and Ors. 2005 (2) KLT
396 = 2005 (1) KLJ 788, this Court had considered the right of a
complainant to ask the Magistrate to refer the matter to police
under S.156(3) of the Code of Criminal Procedure. This Court
relying on a decision reported in Morarji Jivraj v. Emperor, AIR 1935
Bom. 76 held that the complainant has no right or privilege to
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require the Court to refer the case to the police. The Magistrate
shall not act mechanically merely because a complainant makes a
request to refer the case to the Police. In this case the learned
Magistrate had not applied his mind before forwarding the complaint
to the police and mechanically passed an order forwarding the same
to the Sub Inspector of Police."
7. The same view was expressed by the Supreme Court in
Priyanka Srivastava and Another v. State of Uttar Pradesh
and Others [(2015) 6 SCC 287], paragraph 29 of which is
extracted below;
"29. At this stage it is seemly to state that power under
Section 156(3) warrants application of judicial mind. A court of law
is involved. It is not the police taking steps at the stage of Section
154 of the code. A litigant at his own whim cannot invoke the
authority of the Magistrate. A principled and really grieved citizen
with clean hands must have free access to invoke the said power. It
protects the citizens but when pervert litigations takes this route to
harass their fellows citizens, efforts are to be made to scuttle and
curb the same. "
8. The above precedents unequivocally holds that the
court should be cautious while considering a complaint
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containing only the prayer to order police investigation.
9. In the case at hand, the learned Magistrate decided to
record the sworn statement of the complainant, after
obtaining a report from the jurisdictional Police. The
discretion thus exercised by the learned Magistrate cannot be
interfered with, merely for the reason that the petitioner
prefers police investigation.
For the aforementioned reasons, the Crl.M.C is dismissed.
sd/-
V.G.ARUN, JUDGE
sj
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PETITIONER ANNEXURES
Annexure I TRUE COPY OF THE VISA AND THE
IMMIGRATION ENDORSEMENT IN THE PASSPORT
DATED 05.08.2024
Annexure I (a) TRUE COPY OF THE VISA AND THE
IMMIGRATION ENDORSEMENT IN THE PASSPORT
DATED 05.08.2024
Annexure II TRUE COPY OF THE COMPLAINT DATED
10.08.2024 BEFORE THE 4TH RESPONDENT
Annexure III TRUE COPY OF THE COMPLAINT DATED
10.08.2024 TO THE 2ND RESPONDENT
Annexure IV TRUE COPY OF THE ACKNOWLEDGMENT DATED
10.09.2024
Annexure V TRUE COPY OF THE CMP NO.7301/2024 OF
THE JFMC-III,NEYYATTINKARA
Annexure VI TRUE COPY OF THE REPORT FILED BY THE
4TH RESPONDENT ON 30.09.2024
Annexure VII TRUE COPY OF THE ORDER DATED 30.09.2024
OF THE JFMC-III , NEYYATTINKARA
