C. Premanandakrishnan v. State of Kerala and Vijaya Kumar

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 6[TH] DAY OF JULY 2022 / 15TH ASHADHA, 1944 CRL.MC NO. 1814 OF 2022 [AGAINST C.M.P.NO.1043/2022 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVAKKAD] ## PETITIONER/ACCUSED: C.PREMANANDAKRISHNAN AGED 49 YEARS S/O. KRISHNAN NAIR, WORKING AS INSPECTOR OF POLICE, TEMPLE POLICE STATION, GURUVAYOOR - 680 101 AND RESIDING AT CHORPPATH HOUSE, KOTTAPPURAM, SREEKRISHNAPURAM, PALAKKAD 679513 BY ADV SUMAN CHAKRAVARTHY ## RESPONDENTS/STATE AND COMPLAINANT: 1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA PIN - 682031 2 V.VIJAYA KUMAR AGED 72 YEARS, S/O.APPU NAIR, ANUGRAHA, PUTHUPARIYARAM, PALAKKAD - 678 731 NOW RESIDING AT NO.13/38, KRISHNA ENCLAVE, MALLISSERY PARAMBU, WEST GURUVAYOOR, OPP.MULLATHARA TEMPLE, THRISSUR, KERALA - PIN - 680101 R2 BY ADV GAJENDRA SINGH RAJPUROHIT, ADV. AKHIL GEORGE R1 BY SRI.VIPIN NARAYAN SR.PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 19.05.2022, THE COURT ON 6.7.2022 PASSED THE FOLLOWING: CRL.MC No.1814 of 2022 2 ## O R D E R The petitioner, the Station House Officer of Guruvayoor temple Police Station, has approached this Court to quash Annexure-2 complaint submitted by the 2nd respondent, numbered as Crl.M.P.No.1043/2022 on the Judicial First Class Magistrate Court files, Chavakkad and all further proceedings pursuant thereto. 2. The facts which led to the filing of this Crl.M.C. are as follows: The 2[nd] respondent is a person who is involved in several criminal cases. Annexure-1 contains the details of criminal cases registered against the 2[nd] respondent, which would indicate that, in Kerala, there are 30 cases registered for various offences, whereas the other 10 cases are registered against him in the State of Tamilnadu. It is the case of the petitioner CRL.MC No.1814 of 2022 3 that, to wreak vengeance against the petitioner, who is the present Station House Officer, Guruvayoor Temple Police Station, the 2[nd] respondent submitted Annexure-2 complaint before the Judicial First Class Magistrate Court, Chavakkad which is numbered as Crl.M.P.No.1043/2022 raising several allegations against the petitioner for the offences punishable under Sections 383, 506, 190, 200, 211, 217, 341 and 352 of the Indian Penal Code (IPC) r/w. Sections 115 and 116(c) of the Kerala Police Act. Annexure-2 complaint was submitted on 14.3.2022, and on the very same day itself, the aforesaid complaint was referred for investigation to the Station House Officer, Guruvayoor temple Police Station with the following order: _“Complainant present. Complaint forwarded to SHO Guruvayoor temple PS for registering an FIR investigate and the report. If a crime is already registered on the said set of facts based on the petition previously filed by the_ CRL.MC No.1814 of 2022 4 _complainant before the police authorities, this complaint shall be appended to the file of the said crime and kept in the case file.”_ The specific case of the petitioner is that, the procedure adopted by the learned Magistrate was not proper as the complaint was forwarded to the Station House Officer of Guruvayoor Temple police Station even though the accused person in the aforesaid complaint is the Station House Officer of the very same Police Station in his personal capacity. In such circumstances, it was pointed out that, the same should not have been forwarded to the same person who is arrayed as the accused in the complaint as it would create a situation where the petitioner would be compelled to register a case against himself. Highlighting the aforesaid discrepancy, this Crl.M.C. is filed. 3. Heard Sri.Suman Chakravarthy, the learned counsel for the petitioner, Sri. Vipin Narayan, the learned Senior Public Prosecutor for the CRL.MC No.1814 of 2022 5 State and Sri. Akhil George, the learned counsel for the 2[nd] respondent. 4. The learned counsel for the petitioner asserted the discrepancy highlighted above while making submissions. The learned counsel further relied on the decisions in Superintendent of Police, C.B.I v. State of Kerala [2005(3) KLT 823], Prasanth v. C.V.Kuriakose and Another [2020(4) KHC 795] and Priyanka Srivastava and Another v. State of Uttar Pradesh and Others [2015(6) SCC 287] . 5. On the other hand, the learned counsel for the 2[nd] respondent would vehemently oppose the aforesaid contentions. According to him, there is no impropriety in forwarding the case to the Station House Officer of Guruvayoor temple Police station. The learned counsel places reliance upon Section 2(o) of the Code of Criminal Procedure (Cr.PC) which defines _“officer in charge of the police station”_ and CRL.MC No.1814 of 2022 6 according to him, it enables any other police officer in the said station to register a complaint against the person who is the Station House Officer of the concerned station in certain circumstances. Thus, the learned counsel for the 2[nd] respondent seeks for dismissal of the Crl.M.C. 6. The crucial question that arises is whether the procedure adopted by the learned Magistrate in referring the matter for investigation under Section 156(3) of Cr.PC is proper or not in the facts and circumstances of the case. There is no dispute that the petitioner is the Station House Officer of the police station concerned and he is the person accused of the offences in Annexure-A2 private complaint. The specific case of the petitioner is that, as he is the Station House Officer, he cannot be compelled to register a case against himself. On the other hand, in response to the CRL.MC No.1814 of 2022 7 aforesaid contention, the learned counsel for the 2[nd] respondent relies on the stipulations contained in Section 2(o) of the Cr.PC which reads as follows: _“(o): officer in charge of a police station” includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present.”_ 7. It is true that the stipulation contained in Section 2(o) of the Cr.PC empowers the officer who is next in the rank of the Station House Officer to perform the duties as an officer in charge of the police station in certain circumstances. However, the situation contemplated herein is entirely different. In my view, the situation at hand cannot be treated as a case where the petitioner/Station House Officer is unable to perform his duties. At the CRL.MC No.1814 of 2022 8 most, inability as far as the petitioner/Station House Officer is concerned is only with respect to the present complaint; it would not extend in exercising his general powers. It is also to be noted in this regard that, even if it is assumed that, the Station House Officer next in rank is treated as a person who is in charge of the Police station for the purpose of registering a crime in this case, I am of the view that, no fruitful purpose would be served if the officer subordinate to the petitioner herein would be compelled to conduct an investigation against his superior officer. Therefore, no fruitful investigation can be expected in such a case as the person subordinate to the petitioner herein would be compelled to report to the petitioner/accused in respect of the investigation which he makes. 8. It is discernible from the order passed by the learned Magistrate that, while passing an CRL.MC No.1814 of 2022 9 order referring Annexure-2 complaint for investigation to the Station House Officer, Guruvayoor Temple Police Station, the learned Magistrate has not taken into consideration the impact of such order, consequent to the peculiar situation prevailing in this case. As per the provisions of Cr.PC, it is possible for the Magistrate to conduct an inquiry under Section 202 Cr.PC before taking action on the complaint. In this case, no such exercise has been done. 9. Moreover, in Priyanka Srivastava’s case (supra), the Hon’ble Supreme Court observed that, the private complaint submitted before a Magistrate seeking direction for registration of F.I.R. under Section 156(3) must be supported by an affidavit. It is the case of the petitioner in this case that, Annexure-A2 was not accompanied by an affidavit. Apart from the above, the observations made by this Court in Prasanth’s case (supra) are also very much CRL.MC No.1814 of 2022 10 relevant. Paragraphs 6 and 7 of the aforesaid judgment are as follows: _“6. Having examined the nature of contentions raised by the parties, it is quite natural for one to think that since the falsity or genuineness of the certificates relied on by the petitioner is a matter of controversy necessitating enquiry, continuance of investigation pursuant to Annexure - B FIR is only desirable. That apart, one should not, however, lose sight of the other side of the picture also. Any investigation permitted to be held by the police authorities as to the authenticity or otherwise of the certificates in question pursuant to the complaint lodged by a member of the public, will certainly affect, not only the reputation but also the career prospects of the suspect in the crime. If the outcome of the investigation ultimately turns out to be in favour of the suspect, no doubt by that time, his reputation as well as opportunity for employment might be ruined. It, however, does not mean that in all the cases wherever possession of requisite qualification or authenticity of certificates is in question, investigation should be invariably withheld. It would only be a prudent approach if the judicial Magistrate concerned who forwards the complaint for registration and orders investigation into the crime ensures that the complaining person approaches him only with good sense of responsibility and also even preparedness to face the consequences if his_ CRL.MC No.1814 of 2022 11 _allegations turn out, at a later stage to be factually wrong or otherwise ill – motivated. 7. This position has been taken note of with utmost concern by the Honourable Apex Court which, in one of its decisions insisted the Judicial Magistrates entertaining complaints to make sure that the allegations made in the complaint are genuine, before it being forwarded for registration and investigation to the Police under S.156(3) of Cr.P.C. This insistence came into vogue in the wake of the bald and frivolous allegations made by certain complainants turning out to be false in some cases, at the later stage of the investigation. It was opined by the Honourable Apex Court that there existed the need for devising appropriate legal mechanism for holding the persons responsible for making false imputations. It was thus suggested that in order to confirm that only persons with sense of responsibility approach the court with honest complaints, the learned Magistrate should insist the applicant to file affidavit along with the complaint in appropriate cases, duly swearing that the imputations made in the complaint are factually true to the best of their knowledge, information and belief. A rigid procedure demanding affidavit to accompany every complaint is not what is intended. It is after all the discretion which the Magistrate may exercise in selected and deserving cases depending on the nature of allegations in the complaint and also facts and circumstances of each case.”_ CRL.MC No.1814 of 2022 12 As per the observations extracted above, this Court reiterated the necessity of the precautions to be taken by the learned Magistrate while entertaining a complaint seeking registration of the F.I.R. and investigation by the police under Section 156(3) of the Cr.PC. 10. In Ramdev Food Products (P) Ltd v. State of Gujarat[(2015) 6 SCC 439] , it was observed by the Honourable Supreme Court as follows: _“ The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of the credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.”_ Similarly, In Anil Kumar v.M.K.Aiyappa [(2013)10 SCC 705], it was held by the Honourable Supreme Court as follows: CRL.MC No.1814 of 2022 13 _“ The scope of Section 156(3) Cr PC came for consideration before this court in several cases. This court in Maksud Sayed [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising the jurisdiction under section 156(3). It held that where jurisdiction exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr PC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under section 156(3) against a public servant without a valid sanction order. The application of mind should be reflected in order. The mere statement that_ _he has gone through the complaint, and documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complaint, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order. However, a detailed expression of his views is neither required nor warranted………….”_ Thus, it is evident that, the Honourable Supreme Court laid down the legal proposition that the Magistrate has to apply his mind before referring the matter for investigation to police under section 156(3) CrPC, and such application CRL.MC No.1814 of 2022 14 of mind should reflect in the order as well. In this case, it is discernible from the records that no such exercise has been conducted by the learned Magistrate while forwarding the complaint to the police for registration of the F.I.R. In my view, the peculiar facts of this case would necessitate a more careful approach on the part of the Magistrate for various reasons due to following points; (1) the accused is a police officer, (2) the complainant is a person involved in several cases including serious offences, (3) The complaint was raised against the person who happened to be the Station House Officer of the police station, to which petitioner is seeking for reference for investigation under section 156(3) CrPC, (4) Consequence of a direction to register crime by the very same officer against whom accusation has been made in the complaint and thereby being instrumental to a situation where the CRL.MC No.1814 of 2022 15 accused is forced to register an FIR against himself, etc. However, the order passed by the Magistrate directing the registration of crime, referring the matter to the police, does not contain any reflections of consideration of the above aspects. In my view, non-consideration of the factors above is very much material. Therefore, I am of the view that interference is necessary in the order passed by the learned Magistrate and hence the same is to be set aside. In such circumstances, this Crl.M.C. is disposed of by setting aside the order passed by the Judicial First Class Magistrate Court, Chavakkad on 14.3.2022 referring Annexure-A2 complaint for investigation to the police under section 156(3) CrPC. The learned Magistrate is directed to consider the contents of Annexure-A2 in light of the principles laid down by the Hon’ble Supreme Court, which are referred to CRL.MC No.1814 of 2022 16 above and pass a fresh order thereon in accordance with law. Sd/ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.1814 of 2022 17 ## APPENDIX OF CRL.MC 1814/2022 PETITIONER’S ANNEXURES: |Annexure1|A TRUE COPY OF THE LIST OF CASES WHEREIN| |---|---| ||THE 2ND RESPONDENT IS INVOLVED| |Annexure2|A TRUE COPY OF THE COMPLAINT IN CRLMP| ||NO.1043/2022 ON THE FILES OF JFCM CHAVAKKAD| |Annexure3|A TRUE COPY OF THE REFER REPORT IN CRIME| ||NO.595/2010 ON THE FILES OF JFCM CHAVAKKAD| |Annexure4|A TRUE COPY OF THE ORDER DATED 18.06.2019| ||IN CMP NO.313/2018 IN C.C NO.68/2016| |Annexure5|A TRUE COPY OF THE COMPLAINT FILED BEFORE| ||THE ACP GURUVAYOOR DATED 17.11.2021 BY THE| ||2ND RESPONDENT| //TRUE COPY// SD/- P.S. TO JUDGE