Kerala High Court
Pulimoottil Chacko Thomas vs State Of Kerala on 16 June, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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WA No. 1374 of 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 16TH DAY OF JUNE 2025 / 26TH JYAISHTA, 1947
WA NO. 1374 OF 2025
AGAINST THE JUDGMENT DATED 28.10.2024 IN WP(Crl.) NO.737 OF
2022 OF THE HIGH COURT OF KERALA
APPELLANT:
PULIMOOTTIL CHACKO THOMAS
AGED 68 YEARS
S/O LATE CHACKO P. JOHN, AGED 66 YEARS,
'PULIMOOTTIL', NO. 3/910 C, K. K. ROAD, CHEMBUMUKKU,
THRIKAKKARA P. O. KOCHI-682021
BY ADV SRI.PRAVEEN.H.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO HOME DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001
2 THE SUPERINTENDENT OF POLICE
CBCID ECONOMIC OFFENCES WING DISTRICT CRIME BRANCH
OFFICE, ERNAKULAM, PIN - 683101
3 THE DISTRICT POLICE CHIEF
ERNAKULAM CITY-682011 REVENUE TOWER, PARK AVENUE,
MARINE DRIVE, ERNAKULAM, PIN - 682035
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WA No. 1374 of 2025
4 THE STATION HOUSE OFFICER
PANANGAD POLICE STATION, ERNAKULAM-, PIN - 682506
5 MR. ANIL KUMAR
MANAGING DIRECTOR, AMV INFRASTRUCTURE AND PROPERTIES
PRIVATE LIMITED, DOOR NO.11/585-F, 5TH FLOOR,
AMV TOWER, KUNDANNOOR JUNCTION, MARADU POST,
COCHIN, PIN - 682304
6 MR. SHANKAR JAYARAM
REGIONAL HEAD- DEBTS ICICI BANK HOME LOANS,
ICICI BANK LIMITED ZONAL OFFICE,PUSHPAMANGALAM ESTATE,
N.H.BYEPASS ROAD, EDAPALLY, ERNAKULAM, PIN - 682024
7 SAJAN ROY
REGIONAL HEAD-MORTGAGE, ICICI BANK HOME LOANS,
ICICI BANK LIMITED ZONAL OFFICE, PUSHPAMANGALAM ESTATE,
N.H.BYPASS ROAD, EDAPALLY, ERNAKULAM, PIN - 682024
8 SUMESH P.S
REGIONAL HEAD- SALES MORTGAGE, ICICI BANK HOME LOANS,
ICICI BANK LIMITED, ZONAL OFFICE, PUSHPAMANGALAM
ESTATE, N.H.BYPASS ROAD, EDAPALLY, ERNAKULAM,
PIN - 682024
SMT. NEEMA T V, SENIOR PUBLIC PROSECUTOR.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
16.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WA No. 1374 of 2025
JUDGMENT
Raja Vijayaraghavan V, J.
This Writ Appeal is preferred, challenging the judgment dated 28.10.2024
passed by the learned Single Judge in W.P. (Crl.) No. 737 of 2022 whereby the Writ
Petition seeking issuance of directions to the Investigating Officer in Crime No.
1036 of 2021 of the Panangad Police Station, to carry out a fair, impartial and
thorough investigation was dismissed.
2. The records reveal that Crime No. 1036 of 2021 of the Panangad
Police Station was registered based on a complaint lodged by the
petitioner/appellant herein. The brief allegation in the complaint is that a certain
Mr. Anil Kumar, in collusion with officers of the ICICI Bank Home Loans section,
committed financial fraud against the appellant herein. The grievance of the
appellant was that without conducting an effective investigation, the Station House
Officer, Panangad Police Station, submitted a refer charge before the learned
Magistrate.
3. The learned Single Judge, after noting the factual scenario, reiterated
the settled legal position as laid down by the Apex Court in Bhagwant Singh vs.
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Commissioner of Police and Another1, and it was observed that the remedy of
a person who is aggrieved by a report filed under Section 173 of the Cr.P.C. is to
approach the learned Magistrate on receipt of notice and raise his objections and
not approach this Court under Article 226 of the Constitution of India.
4. Sri. Praveen Hariharan, the learned counsel appearing for the
appellant, submitted that approaching the learned Magistrate with a protest
complaint would not be an efficacious remedy. He urged that the learned
Magistrate is not vested with the power to hand over the investigation to a
superior officer or another agency, as the said power is vested only with the
Constitutional Courts.
5. We have considered the submissions.
6. In the case on hand, after concluding the investigation of the crime,
the investigating officer submitted a refer report stating that no offence was made
out. As held in Bhagwant Singh (supra), if on a consideration of the report made
by the officer-in-charge of a Police Station under sub-section (2)(i) of Section 173
of the Cr.P.C., the Magistrate is not inclined to take cognizance of the offence and
issue process, the informant must be given an opportunity of being heard so that
he can make his submissions to persuade the Magistrate to take cognizance of the
offence and issue process. Admittedly, notice was issued to the appellant by the
[(1985) 2 SCC 537]
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learned Magistrate before accepting the refer report. However, the appellant did
not choose to appear before the learned Magistrate and raise his objections or file
a protest complaint.
7. It has been held in Parameswaran Nair vs. Surendran2 that if
the Magistrate accepts the report and drops the proceedings after granting
opportunity to the complainant, though the complainant can thereafter file a
second complaint it will lie only if there was a manifest error or manifest
miscarriage of justice in the previous order or there is any exceptional
circumstances like new facts which the complainant had no knowledge of or with
due diligence could not have brought forward in the previous proceedings.
8. Instead of approaching the learned Magistrate upon receipt of
summons and filing an objection reiterating his grievances against the filing of the
refer report, the petitioner has directly approached this Court under Article 226 of
the Constitution of India seeking directions. The learned Single Judge took note of
this aspect and held that, without approaching the learned Magistrate and
exhausting the remedies under law, the recourse to filing a Writ Petition under
Article 226 of the Constitution cannot be sustained. However, the right of the
appellant to proceed in accordance with law was reserved.
[2009 (1) KLT 794]
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9. Having considered the submissions advanced by Sri. Praveen
Hariharan, and after perusing the records as well as the observations of the
learned Single Judge, we are of the view that the judgment passed by the learned
Single Judge cannot be said to be erroneous, warranting interference in appeal.
We find absolutely no reason to interfere with the judgment.
This Writ Appeal is accordingly dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K.V. JAYAKUMAR,
JUDGE
APM
