K.B. Balachandran v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 17[TH] DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943** ## **WP(C) NO.15796 OF 2020** ## **PETITIONER:** K.B.BALACHANDRAN AGED 65 YEARS S/O. BALAN, PLANKALA PUTHENVEEDU, ATHIYANNOOR, ARALUMMOOD P.O, THIRUVNANTHAPURAM 695 582 BY ADVS. ANJANA KANNATH SMT.P.M.MAZNA MANSOOR ## **RESPONDENTS:** 1 STATE OF KERALA REPREENTED BY THE ADDITIONAL CHIEF SECRETARY, HOME AND VIGILANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001 2 JOINT DIRECTOR OF ENFORCEMENT, DIRECTORATE OF ENFORCEMENT, KOCHI ZONAL OFFICE, KANOOS CASTLE, MULLASSERI CANAL ROAD WEST, KOCHI, PIN 682 011 3 THE DIRECTOR, ANTI-CORRUPTION BUREAU, VIKAS BHAVAN, LAW COLLEGE ROAD, PALAYAM POST, THIRUVANANTHAPURAM 695 033 4 ASSISTANT COMMISSIONER OF POLICE, CYBER SECURITY, CITY SUB DIVISION, KAZHAKUTTAM, THIRUVANANTHAPURAM, PIN 695 582 5 GOPALAKRISHNAN, S/O. NARAYANAN, KALLAS , T.C NO. 100/2994, ATTINKUZHI, KAZHAKUTTAM, THIRUVANANTHAPURAM PIN 695 582 SMT REKHA S-SR PP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2021, THE COURT ON 17.09.2021 DELIVERED THE FOLLOWING: W.P.(C) No.15796/2020 2 ## **R.NARAYANA PISHARADI, J ************************ W.P.(C).No.15796 of 2020 ------------------------------------Dated this the 17[th] day of September, 2021 ------------------------------------------- ## **J U D G M E N T** ## The reliefs sought in this writ petition are as follows: _“i. To issue a writ of mandamus, or any other writ, direction or order commanding he respondents to consider the complaints preferred by the petitioner and take necessary action against the 5[th] respondent without further ado._ _ii. To issue a writ of mandamus, or any other writ, direction or order commanding the 4[th] respondent to retrieve the proceedings taken on Exhibit P4 against the 5[th] respondent and to finalize the same within a time frame stipulated by this Hon'ble Court._ _iii. To issue such other writ order or direction, which is just and necessary in the facts and circumstances of the case.”_ W.P.(C) No.15796/2020 3 2. The petitioner is a retired police officer. The 5[th] respondent is also a retired police officer. The petitioner had filed Ext.P2 complaint against the 5[th] respondent to the Union Home Minister alleging that the 5[th] respondent has acquired and possessed assets disproportionate to his known sources of income. It is stated that the petitioner had also filed complaint against the 5[th] respondent to the State Government and the Director of Vigilance and Anti-Corruption Bureau in the matter. 3. The grievance of the petitioner is that no action has been taken against the 5[th] respondent on the basis of the complaints made by him to the authorities concerned. Therefore, he has sought the above reliefs in the writ petition. 4. Heard learned counsel for the petitioner and also the learned Public Prosecutor. 5. Ext.P1 is the copy of the complaint preferred by one Sivakumar against the 5[th] respondent. The person who has filed Ext.P1 complaint has not been made a party to this writ petition. For this reason alone, the petitioner is not entitled to seek any W.P.(C) No.15796/2020 4 relief against any of the respondents on the basis of Ext.P1 complaint. 6. Ext.P2 is the copy of the complaint allegedly made by the petitioner to the Union Home Minister. The prayer made in Ext.P2 complaint is that the Central Bureau of Investigation may be directed to conduct enquiry against the 5[th] respondent. The Union of India or the CBI has not been made a party to this writ petition. Therefore, the petitioner is not entitled to get any relief on the basis of Ext.P2 complaint. 7. The petitioner has not cared to produce the copy of the complaint alleged to have been made by him to the first and the third respondents against the 5[th] respondent. Therefore, this Court is not in a position to ascertain what exactly were the allegations made by the petitioner against the 5[th] respondent in those complaints. Ext.P4 is only the copy of the postal acknowledgment card in respect of the complaints made by the petitioner. W.P.(C) No.15796/2020 5 8. The grievance of the petitioner is that no action has been taken against the 5[th] respondent inspite of the complaints made by him to the first and the third respondents. 9. What is the remedy of a person on inaction on the part of the police on the information given by him regarding the commission of a cognizable offence? Is it his remedy to rush to the High Court and to file a writ petition seeking action on the complaint given by him to the police? 10. When information with regard to the commission of any cognizable offence is laid with the police but no action in that behalf is taken, the complainant/aggrieved person has right under Section 190 read with Section 200 of the Code of Criminal Procedure to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence. Instead of adopting or availing that procedure, he is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct investigation into the complaint filed by him before the police (See **All India Institute of Medical Sciences Employees** W.P.(C) No.15796/2020 6 **Union v. Union of India: (1996) 11 SCC 582, Aleque Padamsee v. Union of India:(2007) 6 SCC 171, Sakiri Vasu v. State of U.P : AIR 2008 SC 907, Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage : (2016) 6 SCC 277** and **M. Subramaniam v. S. Janaki : (2020) 16 SCC 728** ). 11. The Constitution Bench of the Supreme Court in **Lalita Kumari v. Government of U.P : (2014) 2 SCC 1** has held that, when information regarding a cognizable offence is received by the police officer concerned, he is bound to register a first information report. It has also been held that, in cases where there is doubt as to whether there has been commission of any cognizable offence, a preliminary enquiry shall be conducted only to ascertain whether the information or the complaint received reveals commission of such an offence. 12. **Lalita Kumari** (supra) does not hold that a person aggrieved by the inaction of the police can take a straight recourse to judicial review, without availing the remedies under the Code of Criminal Procedure (See **Fr. Sebastian** W.P.(C) No.15796/2020 7 ## **Vadakkumpadan v. Shine Varghese (2018 (3) KHC 590** ) . 13. The entire law on the question has been discussed and answered by this Court in **Jude Joseph v. Director General of Police** ( **2021 (3) KHC 441** ). 14. In **Michael Varghese v. Pinarayi Vijayan : 2020 SCC OnLine Ker 2794** , a Division Bench of this Court has held as follows: _“However intricate the magnitude and the nature of the offences alleged, the Code of Criminal Procedure has envisaged a procedure to be followed and, therefore, the same cannot be given a go-by, and a writ petition is not the proper remedy”._ 15. In **Subramaniam** (supra), the Apex Court observed as follows: _“In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of the FIR and investigation into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent filing documents and papers with the police pursuant to the complaint dated 18/09/2008 and the police on_ W.P.(C) No.15796/2020 8 _being satisfied that a criminal offence is made out would have liberty to register an FIR. It is also open to the first respondent to approach the court of the metropolitan magistrate if deemed appropriate and necessary”._ 16. The discussion above would show that the petitioner is not entitled to get any of the reliefs sought in this writ petition. 17. Consequently, the writ petition is dismissed. The petitioner is at liberty to pursue appropriate remedies under the Code of Criminal Procedure with regard to his grievance, if any, on the commission of any cognizable offence by the 5[th] respondent. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr W.P.(C) No.15796/2020 9 ## **APPENDIX OF WP(C) 15796/2020** ## PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMPLAINT AGAISNT THE 5TH RESPONDENT DATED 31-08-2018 EXHIBIT P2 TRUE COPY OF A COMPLAINT DATED 15-072019 EXHIBIT P3 TRUE COPY OF A COMMUNICATION FROM THE CENTRAL VIGILANCE COMMISSION DATED 3008-2019 EXHIBIT P4 TRUE COPY OF ACKNOWLEDGEMENT CARDS DATED 09-10-2019 EXHIBIT P5 TRUE COPY OF THE DEPOSITION OF THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 04-12-2019 ## RESPONDENTS' EXHIBITS: EXT.R4 : TRUE COPY OF GO (Rt) No.2017/GAD dated, thiruvananthapuram 04.2017 EXT.R4(a): TRUE COPY OF THE DEPOSITION OF MR.SIVAKUMAR ALLEGED PETITIONER IN EXT.P1 DATED 11.08.2020). TRUE COPY PS TO JUDGE