Kerala High Court
K.C. Mohanan vs State Of Kerala on 22 September, 2025
2025:KER:70025
O.P(Crl) No.54/2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 22ND DAY OF SEPTEMBER 2025 / 31ST BHADRA, 1947
OP(CRL.) NO. 54 OF 2025
CMP NO.2449 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
KANNUR
PETITIONER/COMPLAINANT:
K.C. MOHANAN
AGED 61 YEARS
D/O KANNAN, KANIYARA HOUSE, MANGAD, P.O. KANNUR
UNIVERSITY, KALLIASSERI, KANNUR, PIN - 670567
BY ADV SRI.K.RAJESH SUKUMARAN
RESPONDENT/STATE/ACCUSED:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
2 STATION HOUSE OFFICER
KANNAPURAM POLICE STATION, P.O. KANNAPURAM, CHERUKUNNU,
KANNUR, PIN - 670301
3 K.C. REETHA
AGED 57 YEARS
W/O RAGHUNATH, KANIYARA HOUSE, MANGAD, P.O. KANNUR
UNIVERSITY, KALLIASSERI, KANNUR, PIN - 670567
4 RAGHUNATH
AGED 63 YEARS
H/O K.C. REETHA, KANIYARA HOUSE, MANGAD, P.O. KANNUR
UNIVERSITY, KALLIASSERI, KANNUR, PIN - 670567
5 RITHIN
AGED 33 YEARS
S/O RAGHUNATH, KANIYARA HOUSE, MANGAD, P.O. KANNUR
UNIVERSITY, KALLIASSERI, KANNUR, PIN - 670567
2025:KER:70025
O.P(Crl) No.54/2025 2
BY ADVS.
SRI.BONNY BENNY
SRI.SANIL JOSE
SRI.K.P.ANTONY BINU
SHRI.AMALJITH
SRI.VINAY.V, AMICUS CURIAE
SMT PUSHPALATHA M.K., SR. PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
17.09.2025, THE COURT ON 22.09.2025 DELIVERED THE FOLLOWING:
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O.P(Crl) No.54/2025 3
JUDGMENT
The decision of the Judicial First Class Magistrate Court-I, Kannur
to proceed with the enquiry under Section 202 Cr.P.C upon a complaint
preferred by the petitioner herein, instead of forwarding it to the police
under Section 156(3) Cr.P.C as requested by him, is under challenge in
this Original Petition filed under Article 227 of the Constitution of India.
2. The petitioner filed Ext.P1 complaint before the learned
Magistrate narrating four incidents of physical assault and verbal abuse
on the part of the respondents 3 to 5, in connection with the usage of a
road leading to his house. It is alleged that the respondents 3 to 5
made several attempts to annex the road in front of their house to their
property and to obstruct the passage of the petitioner through the said
road. On 05.05.2022, the petitioner and his wife were alleged to have
been wrongfully restrained by respondents 3 to 5 and physically
assaulted with verbal abuses, when he obstructed their encroachment
into the road in front of their house by constructing a gate. On
28.05.2022, the respondents 3 to 5 and their workers are alleged to
have resorted to the same acts of physical violence and verbal abuses
upon the petitioner and his wife when they obstructed the attempt of
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the above respondents to commit encroachments into the road leading
to the house of the petitioner. At that time, the respondents are
alleged to have poked with a stone upon the back of the petitioner's
wife causing injuries which required treatment at Kannur Government
Hospital. It is the further allegation of the petitioner that, on another
occasion, respondents 3 to 5 removed the survey stone and destroyed
it when the petitioner demanded the re-installation of the above survey
stone at its original point. Again, on 22.10.2022 and on 18.02.2023,
the respondents 3 to 5 are alleged to have criminally intimidated the
petitioner and his wife, and physically assaulted them with a wooden
rod. It is alleged that the 4th respondent had outraged the modesty of
the petitioner's wife on 18.02.2023 by pulling her hands, and attempted
to commit murder of the petitioner by waving a dagger towards his
neck. It is, in respect of the aforesaid incidents, that the petitioner filed
Ext.P1 complaint before the learned Magistrate on 25.04.2023.
3. The learned Magistrate posted the above complaint for
recording the sworn statement of the petitioner to 02.05.2023.
Thereafter, the case went on adjourning at the request of the
complainant, who was not ready to give sworn statement before the
learned Magistrate.
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4. In the present petition, the petitioner would contend that
the learned Magistrate ought to have forwarded this complaint to the
police under Section 156(3) Cr.P.C, instead of posting it for recording
his sworn statement. According to the petitioner, since the offences
alleged are cognizable, and the nature of the allegations required the
recovery of material objects at the intervention of the police, the
learned Magistrate ought to have passed the orders under Section
156(3) Cr.P.C, directing investigation by the police.
5. Having regard to the legal issue involved in this case about
the scope of invoking the powers under Article 227 of the Constitution
of India for interfering with the discretionary powers of the Magistrate
to decide whether a complaint has to be forwarded to the police or to
proceed with the enquiry under Section 202 Cr.P.C, Adv.Mr.Vinay.V was
appointed as Amicus Curiae to assist the Court.
6. Heard the learned counsel for the petitioner, the learned
counsel for respondents 3 and 4, the learned Amicus Curiae
Adv.Mr.Vinay.V, and the learned Public Prosecutor representing the
State of Kerala.
7. The nature of the allegation raised by the petitioner in
Ext.P1 complaint would reveal that the root cause of the crimes alleged
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thereunder is a civil dispute relating to the use of a road leading to the
house of the petitioner through a portion of land in front of the house
of respondents 3 to 5. However, it is not made clear by the petitioner
in the complaint or in this Crl.M.C as to whether any litigation is
pending before the Civil Court in connection with the aforesaid issue.
In addition to that, it is pertinent to note that Ext.P1 complaint
discloses four different incidents of physical assault and verbal abuse,
which would constitute four different crimes, said to have happened on
05.05.2022, 28.05.2022, 22.10.2022 and 18.02.2023. Perhaps, the
complexities in the above regard might be the reason which prompted
the learned Magistrate to proceed with the enquiry under Section 202
Cr.P.C instead of forwarding the complaint to the police under Section
156(3) Cr.P.C.
8. A reading of Section 156(3) Cr.P.C would reveal that the
option to send the complaint for the investigation of the police is
subject to the discretion of the Magistrate. No doubt, the discretion in
the above regard has to be exercised upon sound judicial principles. In
the case on hand, the learned Magistrate cannot be found to be at fault
for his decision to proceed with the enquiry under Section 202 Cr.P.C, in
view of the peculiar nature of the cause of crime, which is deep rooted
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in a civil issue relating to a road existing in front of the property of
respondents 3 to 5. That apart, the joinder of four different crimes in a
single complaint might have compelled the learned Magistrate to look
into in detail on the aforesaid issues, instead of straight away
forwarding it to the police.
9. The contention of the petitioner that the matter requires
investigation by the police since the recovery of material objects has to
be made, is not appealing to reason since it cannot be expected that
the police would be able to recover the wooden rod and dagger
allegedly used by respondents 3 to 5 to assault the petitioner three
years ago. So also, the custodial interrogation of the respondents 3 to
5 appears to be irrelevant in the facts and circumstances of the case.
Therefore, there is no merit in the argument of the learned counsel for
the petitioner that the investigation of the matter by the police was an
inevitable requirement to meet the ends of justice.
10. The power vested with this Court under Article 227 of the
Constitution of India has to be exercised sparingly to keep the Tribunals
and Courts within the bounds of their authority. Unless there is
manifest miscarriage of justice, the exceptional powers conferred under
Article 227 of the Constitution of India cannot be invoked to unsettle a
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decision taken by the court below in exercise of its discretion. In
Radhey Shyam v. Chhabi Nath [(2009) 5 SCC 616], the Apex
Court has held that the powers under Article 227 can be exercised only
in those cases where there is manifest miscarriage of justice, and that
the said power is not meant to correct a mistake of fact and law. The
relevant paragraph of the said decision is extracted hereunder:
"31. Under Article 227 of the Constitution, the High Court does not
issue a writ of certiorari. Article 227 of the Constitution vests the High
Courts with a power of superintendence which is to be very sparingly
exercised to keep tribunals and courts within the bounds of their
authority. Under Article 227, orders of both civil and criminal courts can
be examined only in very exceptional cases when manifest miscarriage
of justice has been occasioned. Such power, however, is not to be
exercised to correct a mistake of fact and of law."
11. Elucidating the scope and applicability of Article 227, a five
judges bench of the Hon'ble Apex Court held in Rajendra Diwan v.
Pradeep Kumar Ranibala (2019) 20 SCC 143 as follows:
"85. The power of superintendence conferred by Article 227 is,
however, supervisory and not appellate. It is settled law that this
power of judicial superintendence must be exercised sparingly, to
keep subordinate courts and tribunals within the limits of their
authority. When a Tribunal has acted within its jurisdiction, the High
Court does not interfere in exercise of its extraordinary writ
jurisdiction unless there is grave miscarriage of justice or flagrant
violation of law. Jurisdiction under Article 227 cannot be exercised "in
the cloak of an appeal in disguise".
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86. In exercise of its extraordinary power of superintendence
and/or judicial review under Articles 226 and 227 of the Constitution
of India, the High Courts restrict interference to cases of patent error
of law which go to the root of the decision; perversity; arbitrariness
and/or unreasonableness; violation of principles of natural justice,
lack of jurisdiction and usurpation of powers. The High Court does
not re-assess or re-analyse the evidence and/or materials on record.
Whether the High Court would exercise its writ jurisdiction to test a
decision of the Rent Control Tribunal would depend on the facts and
circumstances of the case. The writ jurisdiction of the High Court
cannot be converted into an alternative appellate forum, just
because there is no other provision of appeal in the eye of the law."
12. In view of the settled principles of law laid down by the
Hon'ble Supreme Court in the above regard, it is not possible for this
Court to interfere with the judicial discretion exercised by the learned
Magistrate to proceed with the enquiry under section 202 Cr.P.C instead
of forwarding the complaint to the police under section 156(3) Cr.P.C.
Needless to say, this petition is devoid of merit.
In the result, the petition is hereby dismissed. The assistance
rendered by the learned Amicus Curiae Advocate Mr. Vinay. V in
enlightening this Court on the various legal aspects of the issue, is
placed on record with appreciation.
(sd/-)
G. GIRISH, JUDGE
jsr
2025:KER:70025
APPENDIX OF OP(CRL.)54/2025
PETITIONER EXHIBITS
Exhibit P 1 THE TRUE COPY OF THE PRIVATE COMPLAINANT, CMP
2449/2023 FILED BY THE PETITIONER HEREIN
BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE
COURT NO.1, KANNUR
Exhibit P 2 THE CERTIFIED COPY OF THE DOCKET PROCEEDINGS
IN CMP 2449/2023 PENDING BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT NO.1, KANNUR
Exhibit P 3 THE TRUE COPY OF THE JUDGMENT OF THE HON'BLE
HIGH COURT OF KERALA REPORTED IN 2023 (2) KHC
52 (FEMEENA.E VS STATE OF KERALA )
Exhibit P 4 THE TRUE COPY OF THE JUDGMENT OF THE HONBLE
APEX COURT IN 2022 (5) KHC 403 (XYZ VS STATE
OF MADHYA PRADESH)
