Kerala High Court
Adv.K.V.Manoj Kumar vs State Of Kerala Rep. By Public ... on 19 June, 2025
Author: V.G.Arun
Bench: V.G.Arun
Crl.M.C.No.7977/22
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
CRL.MC NO. 7977 OF 2022
AGAINST THE ORDER/JUDGMENT DATED 24.09.2022 IN CRMP
NO.5570 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
KANNUR
PETITIONER:
ADV.K.V.MANOJ KUMAR,
AGED 46 YEARS
PRESIDENT, INDIAN LAWYERS CONGRESS, RAYAROTH HOUSE,
POST KAYARALAM, KANNUR DIST.KERALA, PIN - 670602
BY ADV SRI.T.ASAFALI
RESPONDENTS:
1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI., PIN - 682031
2 STATION HOUSE OFFICR, KANNUR T,
KANNUR TOWN POLICE STATION,
KANNUR,KERALA, PIN - 670001
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
11.06.2025, THE COURT ON 19.06.2025 PASSED THE FOLLOWING:
Crl.M.C.No.7977/22
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V.G.ARUN, J
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Crl.M.C.No.7977 of 2022
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Dated this the 19th day of June, 2025
ORDER
The petitioner is aggrieved by Annexure A-8 order of the
Judicial Magistrate of First Class-1, Kannur directing him to appear
for recording sworn statement as part of the inquiry into the
complaint filed by him. The essential facts are as under;
On 21.08.2022, in a press conference at New Delhi, the
Governor of Kerala made a revelation that, on 28.12.2019, while
the 80th History Congress was in progress, an attempt was made
to kill him and, Mr.Gopinath Ravindran, the then Vice Chancellor
of Kannur University, was behind the incident. According to the
petitioner, being a law abiding citizen, he made enquiries and
was dismayed to know that no crime was registered with respect
to the incident. Therefore, the petitioner lodged Annexure A-4
complaint at the Kannur Police Station and followed it up with
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Annexure A-6 complaint to the Superintendent of Police, Kannur.
As no action was taken on the complaints, the petitioner
approached the Magistrate Court with Annexure A-7 complaint,
praying for an order directing investigation into the incident
revealed by the Governor. The Magistrate having decided to
conduct inquiry under Section 202, instead of ordering
investigation under section 156(3) of the Code, this Crl.M.C is
filed.
2. Advocate Asaf Ali, learned counsel for the petitioner put
forth the following arguments to convince the Court that no useful
purpose will be served by the court conducting inquiry;
The shocking disclosure by a constitutional authority like the
Governor of Kerala should have resulted in immediate registration of
a crime. For reasons best known, the police chose not to register the
crime. Therefore, the petitioner approached the police and
thereafter, the jurisdictional Magistrate. The evidence regarding the
attempt to assault the Governor is available mainly in electronic form
and recovery/ seizure of those video footages can be done
effectively if only investigation by the Police is ordered. Going by
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Section 133 of the Code of Civil Procedure, Governors of States are
exempted from personal appearance in court. Therefore, the
Magistrate will not be able to summon the Governor as a witness in
the inquiry. Moreover, going by the Hon'ble Governor's statement,
the conspiracy to attack him was hatched in Delhi. Being so, police
investigation is unavoidable. Relying on the decision in XYZ v. State
of Madhya Pradesh and Others [(2023) 9 SCC 705], it is
submitted that when the facts brought to the Magistrate's notice
constitute cognisable offences, regarding which police investigation
is necessary, the discretion granted under Section 156(3) can only be
read it being the Magistrate's duty to order police investigation.
3. Per contra, the learned ADGP contended that the attempt
of the petitioner is to take political mileage of an incident that had
never occured . If the Hon'ble Governor wanted an investigation into
the alleged incident, he could have directed so. Reliance is placed on
the decision of this counsel in Superintendent of Police, C.B.I.
v. State of Kerala [2005 (3) KLT 823] to contend that the option to
refer the complaint to the police for investigation under Section
156(3) before cognizance or under Section 202(1) after cognizance is
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to be exercised by the Magistrate. It is contended that the
application filed by the petitioner was not supported by a duly sworn
affidavit, which the Supreme Court has held to be mandatory as per
the decision in Priyanka Srivastava and Another v. State of Uttar
Pradesh and Others (2015) 6 SCC 287. It is pointed out that a
Public Interest Litigation seeking a direction to the State and the
police to register a crime and investigate the alleged attempt to
assault the Governor was dismissed by the Division Bench vide
judgment dated 27.09.2022 in WP(C) No. 30661 of 2022. Hence, the
petitioner's complaint seeking similar relief ought to have been
rejected.
4. In view of the contention that the complaint was not
accompanied by an affidavit, a report was called from the
jurisdictional Magistrate. In the report, the Magistrate has stated
that a brief affidavit was filed along with the complaint. A certified
copy of the affidavit was also made available by the counsel for the
petitioner. As the affidavit contains the essential details, the
challenge regarding maintainability of the complaint for want of
affidavit is rejected.
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5. From the arguments advanced, the 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
(supra), the 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.
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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 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."
6. The same view was expressed by the Supreme Court in
Priyanka Srivastava (supra), 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. "
The above precedents unequivocally holds that the court
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should be cautious while considering a complaint containing
only the prayer to order police investigation.
7. No doubt, in XYZ v. State of MP & Ors. (supra), cited by
the learned counsel for the petitioner, the Supreme Court has held
that at the preliminary stage, the court is not called upon to decide
the veracity of the allegations in the complaint, except to underscore
the importance of an investigation by the police in a matter where
the CCTV footage or other evidence is not under the possession or
control of the complainant, but has to be inquired into in the course
of an investigation by the police. Pertinently, in XYZ v. State of MP
& Ors., the complaint was filed by the victim, a yoga instructor,
alleging that the Vice-Chancellor of her institute had touched her
inappropriately. On the other hand, the petitioner herein is not the
victim and is seeking an investigation on the basis of a statement
made by the Hon'ble Governor, that too, after two years of the
alleged incident. In such circumstances, the Magistrate cannot be
held to be at fault for having directed the complainant to be present
for recording his sworn statement. Even if it may not be possible for
the Magistrate to revert and direct police investigation at this stage,
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that is no reason for this Court to interfere with the Magistrate's
decision to conduct inquiry on a complaint of this nature. The
contentions that electronic records are to be recovered/seized and
the Governor cannot be summoned as witness in the inquiry are also
not convincing reasons for invoking this Court's inherent power
under Section 482 of Cr.P.C, since the decision of the Magistrate
cannot be termed as an abuse of process of court .
For the aforementioned reasons, the Crl.M.C is dismissed.
sd/-
V.G.ARUN, JUDGE
sj
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PETITIONER ANNEXURES
Annexur A-1 TRUE COPY OF THE PAPER CUTTINGS
CONTAINING THE NEWS REPORT OF
HONOURABLE GOVERNOR PUBLISHED IN
MATHURBHUMI DAILY DT.22-8-2022
Annexure A-2 TRUE COPY OF THE PAPER CUTTINGS
CONTAINING THE NEWS REPORT OF
HONOURABLE GOVERNOR PUBLISHED IN
MATHGURBHUMI DAILY DT.20-9-2022
Annexure A-3 TRUE COPY OF THE PAPER CUTTINGS
CONTAINING THE NEWS REPORT OF THE
HONOURABLE GOVERNOR PUBLISHED IN
MALAYALA MANORAMA DAILY DT.20-9-2022
Annexure A-4 CERTIFIED COPY OF THE CMPLAINT DT.21-8-
2022 LODGED TO SHO KANNUR TOWN POLICE
STATION BY THE PETITIONER
Annexure A-5 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT
ISSUED BY KANNUR TOWN POLICE STATION.
Annexure A-6 CERTIFIED COPY OF THE COMPLAINT DT.21-
8-2022 LODGED TO THE SUPDT.OF POLICE,
KANNUR BY THE PETITIONER
AnnexureA7 CERTIFIED COPY OF THE COMPLAINT FILED
BY THE PETITIONER BEFORE THE HONOURABLE
COURT OF JUDICIAL FIRST CLASS
MAGISTRATE N.I,KANNUR
AnnexureA8 CERTIFIED COPY OF HE ORDER DT.24-9-2022
MADE IN CMP NO.5570 ON THE FILE OF THE
COURT OF JUDICIAL FIRST CLASS
MAGISTRATE NO.I,KANNUR.
