Krishnakumar M.S. v. The Superintendent of Police, Alappuzha; The Station House Officer, Kayamkulam; Muhammed Haneefa; Shamil Muhammed

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944** **R.P. NO. 271 OF 2022** **AGAINST THE JUDGMENT DATED 10.02.2022 IN W.P.(Crl.) 502/2021 OF HIGH COURT OF KERALA** ## **PETITIONER/PETITIONER:** **KRISHNAKUMAR M.S. AGED 56 YEARS S/O. M.S.MADHAVAN, MELETH GREESHMAM, MUTTOM P.O., HARIPAD, ALAPPUZHA-690 511** **BY ADVS.SHABU SREEDHARAN JINSON OUSEPH CHITRA VIJAYAN SHYAM KUMAR M.P** ## **RESPONDENTS/RESPONDENTS:** **1 THE SUPERINTENDENT OF POLICE ALAPPUZHA, CCSB ROAD, CIVIL STATION WARD, ALAPPUZHA-688 012** - **2 THE STATION HOUSE OFFICER, KAYAMKULAM, ALAPPUZHA-690 502** **3 MUHAMMED HANEEFA, S/O. ABDUL KHADER, KALLELIL, CHERAVALLY, KAYAMKULAM P.O., ALAPPUZHA-690 502** **4 SHAMIL MUHAMMED, S/O. MUHAMMED HANEEFA, KALLELIL, CHERAVALLY, KAYAMKULAM P.O., ALAPPUZHA-690 502** R.P.No.271 OF 2022 2 **R1 & R2 BY SRI.VIPIN NARAYANAN,SENIOR PUBLIC PROSECUTOR R3 & R4 BY SRI. SERGI JOSEPH THOMAS** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 17.03.2022, THE COURT ON 23.03.2022 DELIVERED THE FOLLOWING:** R.P.No.271 OF 2022 3 ## **ORDER** W.P.(Crl.) No. 502/2021 was filed by the review petitioner contending that he is the owner of an Innova Car KL-29-N-4554, he had pledged the vehicle in connection with the education of his daughter to respondents 3 and 4, that thereafter, when he wanted to redeem the vehicle, they did not return the vehicle and thus apprehending that they might have sold the vehicle and misused the same, he approached the police for taking action but they refused and in that background he approached this Court seeking the following reliefs:- - “1. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 & 2 to take urgent necessary steps to trace the Innova car with reg. no. KL 29N 4554 so as to enable the petitioner to have possession of the same. 2. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 & 2 to take appropriate steps to get back all the documents entrusted with the respondents 3 & 4 to the petitioner. 3. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 & 2 to take appropraite penal action against respondents R.P.No.271 OF 2022 4 3 & 4 for having committed the offences of criminal breach of trust, cheating, criminal intimidation etc upon the petitioner.” 2. This Court heard the learned counsel for the petitioner, the learned Senior Public Prosecutor for respondents 1 and 2 and the learned counsel for respondents 3 and 4 and since disputed questions of facts were involved refused to invoke its jurisdiction under Article 226 of the Constitution. The Court also pointed out that alternate efficacious remedies are available to the petitioner under the Code of Criminal Procedure which he can invoke. Thus, the Writ Petition was dismissed in limine. Aggrieved by the same, the petitioner has moved this application for review. 3. According to him, the learned Public Prosecutor did not apprise the true facts of the case to this Court. Referring to Annexure-4 statement of facts, which was obtained under the Right to Information Act, he said that the second respondent had given a para-wise statement to the Public Prosecutor, but without adhering to the same, he made representation before this Court and that made this Court to dismiss the Writ Petition. R.P.No.271 OF 2022 5 Therefore, the order is sought to be reviewed and a writ as prayed for is to be issued. 4. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. 5. The subject matter of the dispute is an Innova car. According to the petitioner, he had pledged the same with respondents 3 and 4, that they refused to redeem the pledge. He then approached the police and police after making some name sake preliminary enquiry, considering that the dispute is civil in nature, refused to register a crime and that prompted him to approach this Court. 6. It is true that in Annexure-4 there is no positive finding by the second respondent that the vehicle was sold by the petitioner to a person in Ernakulam for Rs.7 lakhs. It indicates that when telephonic enquiries were made with the fourth respondent, he had made such a statement. That is what recorded in paragraph 5 of the statement of facts in Annexure-4. Anyhow, the vehicle was not searched and was not traced and nobody could give the second respondent R.P.No.271 OF 2022 6 information about the whereabouts of the vehicle. No serious enquiry was also made into the allegations. He said that the dispute is civil in nature; the third respondent, even though is a lawyer in Haripad Bar, is involved in three criminal cases under Sections 406, 420 etc. But he took the stand that the reliefs as prayed for cannot be granted. 7. The learned counsel for the petitioner has a grievance that the learned Senior Public Prosecutor did not place the true facts before court. But it is clear that the learned Senior Public Prosecutor had made representation in line with Annexure 4. Whatever it may be, at least for two reasons, review as prayed for cannot be granted. 8. Firstly, as stated earlier, it is a disputed question of fact. The petitioner wanted to say that the vehicle was with respondents 3 and 4, on the other hand, respondents 3 and 4 asserted that the petitioner himself had disposed the vehicle to a person in Ernakulam. When the parties differ on the facts of the case, court cannot legitimately issue a writ in favour of the petitioner. Factual aspects cannot be gone into by the writ R.P.No.271 OF 2022 7 court. 9. Secondly, in order to consider an application for review, there must be error apparent on the face of records or there must be new and important aspects which could not be produced at the time of disposal of the case. Here, there is no error apparent on the face of the records. There are disputed questions of facts, whether the vehicle was given to the respondents 3 and 4 or sold by the petitioner himself for Rs. 7 lakhs are varied versions given by the parties. Anyhow, the second respondent had reasons to believe that there is a dispute in the name of the vehicle between the parties and therefore, the Investigating Officer is justified in not registering the case. As the petitioner is aggrieved by the same, he ought to have approached the jurisdictional Magistrate giving a complaint seeking to forward it to the police under Section 156(3) of the Cr.P.C. or for enquiring under Sections 200 and 202 of the Cr.P.C. That has not been done. 10. Moreover, it is the settled proposition of law that when the police refuse to register a crime, even if information R.P.No.271 OF 2022 8 about the commission of a cognizable offence is related, then the remedy is not by invoking jurisdiction under Article 226 of the Constitution, but as provided under the Criminal Procedure Code. This has been reiterated by the Hon’ble Supreme Court time and again. In the decision reported in **Aleque Padamsee and others v. Union of India and others [(2007) 6 SCC 171]** , the Supreme Court after conducting survey of various authorities on the subject including **All India Institute of Medical Sciences Employees' Union** case **[(1996) 11 SCC 582]** etc., it was held that the remedy, if there is inaction or laches on the part of the police in registering the FIR, the modalities contained under Section 190 read with Section 200 of the Cr.P.C. are to be adopted. That being the position, I am convinced that there is absolutely nothing to review the order under challenge. The review petition is dismissed. No costs. Sd/- **K.HARIPAL** **JUDGE** **DCS/20.03.2022** R.P.No.271 OF 2022 9 ## **APPENDIX** ## **PETITIONER'S ANNEXURE** |**ANNEXURE**|**1**|**THE TRUE COPY OF THE NOTICE ISSUED BY THE**| |---|---|---| |||**CHIEF MANAGER (AUTHORISED OFFICER), SBI**| |||**MAVELIKKARA BRANCH TO THE PETITIONER DATED**| |||**28.12.2021**| |**ANNEXURE**|**2**|**THE TRUE COPY OF THE RC PARTICULARS OF THE**| |||**VEHICLE OF THE PETITIONER WITH REG NO.KL**| |||**29N 4554 TAKEN FROM THE MPARIVAHAN**| |||**APPLICATION DATED NIL**| |**ANNEXURE**|**3**|**THE TRUE COPY OF THE RELEVANT PAGE OF THE**| |||**STATEMENT OF ACCOUNT OF THE PETITIONER**| |||**SHOWING THE BANK TRANSFER OF RS.2,35,000/-**| |||**DATED 19.12.2020**| |**ANNEXURE**|**4**|**THE TRUE COPY OF THE STATEMENT OF FACTS**| |||**SUBMITTED BY THE 2ND RESPONDENT BEFORE THIS**| |||**HON'BLE COURT IN WP(CRL) NO.502/2021**|