Bindu Pillai v. The State Police Chief and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941** ## **WP(C).No.5640 of 2019** ## **PETITIONER:** **BINDU PILLAI AGED 47 YEARS D/O. LATE PADMANABHAN PILLAI, PULIPURA KIZHAKKETHIL, SAI KRISHNA HOUSE, KUREEPUZHA, THRIKKADAVOOR VILLAGE, KOLLAM DISTRICT.** **BY ADVS. SRI.BABU S. NAIR RAJESH P.A. SMT.SHAMSEERA. C.ASHRAF SMT.SMITHA BABU SUJA PADNABAN PILLAI** ## **RESPONDENTS:** |**1**|**THE STATE POLICE CHIEF**| |---|---| ||**POLICE HEAD QUARTERS, THIRUVANANTHAPURAM - 695001**| |**2**|**THE DISTRICT POLICE CHIEF,**| ||**KOLLAM - 691001**| |**3**|**THE SUPERINTENDENT OF POLICE**| ||**CRIME BRANCH C.I.D., KOLLAM - 691001**| |**4**|**THE DEPUTY SUPERINTENDENT OF POLICE,**| ||**CRIME BRANCH C.I.D. KOLLAM - 691001**| |**5**|**THE STATION HOUSE OFFICER,**| ||**KOLLAM WEST POLICE STATION, KOLLAM DISTRICT - 691001.**| |**6**|**ADDL.R6. THULASEEDHARAN PILLAI, AGED 54 YEARS,**| ||**S/O. RAGHAVAN PILLAI, INDIRA BHAVANAM, KAKKAKOTTOR**| ||**MURI, AMPALATHUMKALA TALUK, EZHUKONE VILLAGE,**| ||**KOTTARAKARA TALUK, KOLLAM DISTRICT (REPRESENTED BY**| ||**THE POWER OF ATTORNEY HOLDER), RADHAMONY,**| **WP(C).No.5640 of 2019** **2** **AGED 51 YEARS, GOKULAM, EZHUKONE VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT. (IS IMPLEADED AS ADDL.R6 AS PER ORDER DATED 20.06.2019 IN I.A.NO.1/19.)** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR FOR R1-R5 SRI.S.RAJEEV, ADVOCATE FOR ADDITIONAL R6.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.5640 of 2019** **3** ## **ALEXANDER THOMAS, J.** ## **===========================** ## **W.P(C) .No.5640 of 2019** **===========================** Dated this the 10[th] day of July, 2019 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows: - _“i) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondents 3 and 4 to conduct a proper and effective investigation in to Crime No.67/2018 of the Kollam West Police Station, forthwith;_ - _ii) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondents 3 and 4 to renew the Look Out Circular issued against the accused as No.1/SIC/ACK/LOC/2018 dated, 24-2-2018 in Crime No.67/2018 of the Kollam West Police Station forthwith;_ - _iii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ 2. Heard Sri.Babu S.Nair, learned counsel appearing for the petitioner (de facto complainant), Smt.Priya Shanavas, learned Government Pleader appearing for official respondents 1 to 5 and Sri.S.Rajeev, learned counsel appearing for additional R-6 (accused). 3. The official respondents have now filed a statement on behalf of the Assistant Commissioner of Police, District Crime Branch, Kollam through the learned Government Pleader, in which it has been _inter alia_ stated in paragraph No.18 thereof that the investigation has now been completed and the Investigating Officer has now submitted the final report **WP(C).No.5640 of 2019** **4** before the Court, etc., by way of a refer report stating that the allegations raised in the crime are false. The 6[th] respondent has also filed an affidavit dated 04.06.2019, wherein a copy of the final report so submitted by the Investigating Officer in the above crime before the Sessions Court, Kollam on 27.02.2019 has been produced as Ext.R6(a). Now that a final report by way of a refer report has already been filed by the Investigating Officer, in relation to the abovesaid Crime No.67/2018 of Kollam West Police Station as per Ext.R6(a), it may not be right and proper for this Court to adjudicate the various rival contentions raised by the rival parties herein and to enter into findings on the merits thereof, as those are matters which are best left to be adjudicated and evaluated by the court below concerned, after hearing the prosecution as well as the de facto complainant. The principles in that regard are well settled by various rulings of the Apex Court, various High Courts and this Court, including the one in the case as in _**Parameswaran Nair v. Surendran and another**_ [2009 (1) KLT 794 = ILR 2009 (1) Kerala 831], wherein it has been held in paragraph No.17 thereof as follows: - _“17. The well-settled legal propositions can be summed up as follows:_ - _(1) When a final report is made by an officer of the Police Station under sub-section 2 of section 173 of Code of Criminal Procedure, if the Magistrate is not inclined to take cognizance of the offence and issue process, notice must be issued to the complainant/first informant and opportunity is to be granted to him to make his submissions to persuade the Magistrate to take cognizance of the offence and issue process._ **WP(C).No.5640 of 2019** **5** _(2) The Magistrate is not bound by the opinion of the investigating officer. He can disregard the report and take the view that there is sufficient ground for proceeding further and take cognizance of the offence and issue process. If the Magistrate decides to disregard the report and take cognizance of the offence and issue process to the accused, it is not mandatory to issue notice to the complainant. Notice is mandatory if the Magistrate is inclined to accept the report._ _(3) Magistrate can direct further investigation under sub-section 3 of Section 156._ _(4) Magistrate can take cognizance on the final report itself under Section 190(1)(b) disregarding the opinion of the police and issue summons._ _(5) Magistrate can take cognizance on the original complaint, where investigation under sub-section 3 of Section 156 was earlier ordered and record the statement of the complainant and the witnesses as provided under Section 200 and can conduct an inquiry. In that inquiry Magistrate can direct investigation by a police officer or such other officer as provided under Section 202 and based on the report and all these materials decide whether cognizance of the offence is to be taken and process is to be issued._ _(6) If the Magistrate accepts the report and drop the proceedings after granting opportunity to the complainant, though 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.”_ 4. Accordingly, it is ordered that the Sessions Court concerned before whom Ext.R6(a) refer report has now been filed should issue notices to the petitioner/de facto complainant as well as the prosecution agency and then will take appropriate decision on the said report in accordance with law and in the light of the well settled legal principles laid down in that regard. Thereafter, in case the petitioner has any legally justiciable grievances, then it will certainly open to her to seek redressal of the same, **WP(C).No.5640 of 2019** **6** in the manner known to law. With these observations and directions, the above Writ Petition (Civil) will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd **WP(C).No.5640 of 2019** **7** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE FIR AND FIS IN CRIME NO.67/2018 OF KOLLAM WEST POLCIE STATION DT 17.1.2018. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED, 11.4.2018 IN WP(CRL.) NO.133/2018 OF THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF THE STATEMENT OF THE INVESTIGATING OFFICER DATED, 06.06.2016 PRODUCED BEFORE THIS HON'BLE COURT ALOGN WITH THE MEMO FILED BY THE GOVERNMENT PLEADER. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 5.07.2018 IN WPC NO. 14493/2018 OF THIS HON'BLE COURT. EXHIBIT P5 TRUE COPY OF THE FIR IN C4RIME NO. 820/2018 OF THE ANCHALAMOODU POLICE STATION DATED, 11.07.2018. EXHIBIT P6 TRUE COPY OF THE FIR IN CRIME NO.1373/2018 OF THE ANCHALAMOODU POLICE STATION DATED, 31.10.2018. EXHIBIT P7 TRUE COPY OF THE PETITION IN OP(HMA) NO.1310/2018 BEFORE THE FAMILY COURT, KOLLAM. EXHIBIT P8 TRUE COPY OF THE RECEIPT OF THE PETITION FILED BY THE PETITIONER BEFORE THE NRI CELL, TRIVANDRUM AS PETITION NO.150/2019 DATED, 24.1.2019. EXHIBIT P9 TRUE COPY OF THE RECEIPT OF THE PETITION NO.4565/2019 FILED BEFORE THE KOTTARAKKARA POLICE STATION.** **WP(C).No.5640 of 2019** **8** **EXHIBIT P10 TRUE COPY OF THE RECEIPT OF THE APPLICATION FILED BY THE PETITIONER UNDER THE RTI ACT, DATED 25.1.2019** **EXHIBIT P11 TRUE COPY OF THE RECEIPT OF THE APPLICATION FILED BY THE PETITIONER UNDER THE RTI ACT, DATED 08.02.2019.** **EXHIBIT P12 TRUE COPY OF THE LOOK OUT CIRCULAR NO.1/SIC/ACK/1000/2018, W.R.T. LETTER/MEMO NO.296/GL/2018-QC ISSUED BY BUREAU OF IMMIGRATION (MINISTRY OF HOME AFFAIRS) ISSUED ON 24.2.2018 VALID TILL 22-2-2019 WITH TYPED COPY** **EXHIBIT P13 TRUE COPY OF THE ORDER DATED, 12.04.2018 IN CRL.M.C.NO.1695/2018 OF THIS HON'BLE COURT.** **PETITIONER'S/S EXHIBITS:** **EXHIBIT R6(A) COPY OF THE FINAL REPORT SUBMITTED BEFORE THE SESSIONS COURT, KOLLAM DATED 27.02.2019.**