P.B. Sourabhan and Snoby Sourabhan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934** ## **Crl.MC.No. 1116 of 2012 ()** ## **-------------------------CMP.NO.865/2012 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM** ## **PETITIONER(S):** ## **-------------** ## **1. P.B.SOURABHAN** **PNRA B 34, PANGAPPARA NAGAR, GANDHI LANE PANGAPPARA, KARIAVATTOM.P.O., THIRUVANANTHAPURAM.** ## **2. SNOBY SOURABHAN,** **D/O.P.B.SOURABHAN, PANGAPPARA NAGAR, GANDHI LANE PANGAPPARA, KARIAVATTOM.P.O., THIRUVANANTHAPURAM.** **BY ADVS.SRI.PIRAPPANCODE V.S.SUDHIR SRI.JELSON J.EDAMPADAM** ## **RESPONDENT/COMPLAINANT(S):** **---------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR OFFICE OF THE ADVOCATE GENERAL HIGH COURT OF KERALA ERNAKULAM (POLICE ASSISTANT COMMISSIONER CANTONMENT SUB DIVISION, THIRUVANANTHAPURAM CITY)** ## **ADDL.2ND RESPONDENT:** **BABU RAJENDRAN, S/O.K.G.PANICKER, AGED 76 YEARS, 'DHANYA', KRA-120, TC 30/1171, RAILWAY STATION ROAD, PETTAH, THIRUVANANTHAPURAM.** **ADDL.2ND RESPONDENT IS IMPLEADED AS PER ORDER DATED 25.05.12 IN CRL.M.A.NO.3333/2012 IN CRL.M.C.NO.1116/12.** **BY ADV. SRI.S.RAJEEV BY ADV. SRI.K.K.DHEERENDRAKRISHNAN BY SRI.T.ASAF ALI, DIRECTOR GENERAL OF PROSECUTIONS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31-07-2012, THE COURT ON 01-08-2012 PASSED THE FOLLOWING:** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **ANNEXURE-I: TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.621/11 OF THE PETTAH POLICE STATION.** **ANNEXURE-II: TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.855/2011 OF PETTAH POLICE STATION, ALONG WITH THE COMPLAINT FILED BY THE 1ST PETITIONER BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT, THIRUVANANTHAPURAM.** **ANNEXURE-III: TRUE COPY OF THE ORDER DATED 28.7.2011 OF THE SESSIONS JUDGE, THIRUVANANTHAPURAM IN CRL.MC.NO.1236/2011 IN CRIME NO.621/2011.** **ANNEXURE-IV: TRUE COPY OF THE FINAL REPORT IN C.P.NO.46/2011.** **ANNEXURE-V: TRUE COPY OF THE FINAL REPORT IN C.C.631/2011.** **ANNEXURE-VI: TRUE COPY OF THE ORDER NO.323/G1/DCP (L&O)/TC DATED 12.3.2012 OF THE DEPUTY COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY.** **ANNEXURE-VII: TRUE COPY OF THE REPORT NUMBERED AS C.M.P.NO.865/2012 SUBMITTED BY THE ASSISTANT COMMISSIONER OF POLICE, CANTONMENT, BEFORE THE CHIEF JUDICIAL MAGISTRATE'S COURT, THIRUVANANTHAPURAM.** **ANNEXURE-VIII: CERTIFIED COPY OF THE ORDER IN C.M.P.NO.865/2012 DATED 23.3.2012 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT, THIRUVANANTHAPURAM.** **ANNEXURE-IX: TRUE COPY OF THE PROTEST COMPLAINT NO.C.M.P.1002/2012 FILED BY THE 1ST PETITIONER BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT, THIRUVANANTHAPURAM.** ## **RESPONDENTS' EXHIBITS: NIL** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **C.R.** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.M.C.NO.1116 OF 2012 ----------------------------------Dated this the 1[st] day of August, 2012** ## **O R D E R** A short but interesting question emerges for consideration on the challenges raised in the aforesaid Crl.M.C. filed under Section 482 of the Code to assail Annexure VIII order passed by the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. 2. Facts in brief, to the extent necessary for disposal of this petition, can be summed up thus: 1[st] petitioner is the father, and the 2[nd] petitioner, his daughter. Matrimonial disputes of the 2[nd] petitioner with her husband led to registering of two crime cases at Pettah Police station, Thiruvananthapuram. Crime No.621 of 2011 arose from a complaint filed by the father-in-law of the 2[nd] petitioner against her father (1[st] petitioner) alleging of his criminal trespass upon the residential building of the de facto complainant and **Crl.M.C.No.1116/2012** **2** assaulting him and other members of his family with a deadly weapon causing them grave injuries. The other crime, Crime No.637 of 2011 arose on a complaint given by the 2[nd] petitioner against her husband, his parents and close relatives, imputing of matrimonial cruelty demanding dowry and of assault on her person causing grievous hurt. Sub Inspector of Police, Pettah Police Station, after conducting investigation in both the crimes, laid reports under Section 173 (2) of the Code before the court indicting the accused persons in the respective case. In Crime No.621 of 2011, wherein, the 1[st] petitioner is the accused, report was filed indicting him of the offences punishable under Sections 447, 323, 324 and 308 of the Indian Penal Code. Cognizance being taken of the offences, committal proceedings of the case commenced numbering the case as C.P.No.46 of 2011 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthpauram. In the other case, Crime No.637 of 2011, cognizance being taken on the report filed for the offences imputed against the accused persons under Sections 498A and 324 read with Section 34 of the IPC, the case was numbered as C.C.No.631 of 2011 on the file of the above court. When **Crl.M.C.No.1116/2012** **3** matters stood thus, the Assistant Commissioner of Police, Cantonment Sub Division, Thiruvananthapuram City, moved Annexure VII petition before the Magistrate seeking permission for further investigation in both the cases. The learned Magistrate granted permission to conduct further investigation in the two crime cases vide Annexure VIII order. Annexure VIII order is challenged by the petitioners as illegal, without jurisdiction and an abuse of process of the court. 3. The de facto complainant in Crime No.621 of 2011 has got impleaded as additional 2[nd] respondent in the petition. He has filed a counter with some documents opposing the challenge against Annexure VIII order. 4. The learned counsel for the petitioners, Sri.Pirappancode V.S.Sudheer confined his submissions solely over the question of competency of the Police Officer, Assistant Commissioner of Police, Cantonment Sub Division to seek permission from the court for further investigation of the two crimes, in which, final reports had already been filed before the **Crl.M.C.No.1116/2012** **4** court. The learned counsel for the petitioners submits that Pettah Police Station does not fall within the local area covered by the Cantonment Sub Division, Thiruvananthapuram but it is within a different Sub Division, namely, Shangumugham Sub Division. When that be so, the Assistant Commissioner of Police, Cantonment Sub Division, who cannot be considered as a Superior Police Officer in relation to the Station House Officer of Pettah Police Station, is incompetent to move for further investigation of the crime even if he is a Superior Officer of the Station House Officer of the above Station, submits the counsel. That challenge is resisted to by the learned Director General of Prosecutions, Sri.T.Asaf Ali banking upon the supervisory authority of the Director General of Police and his empowerment to entrust the investigation of the crime to a Police officer above the rank of the Station House Officer. Section 18 (1) of the Kerala Police Act, 2011 confers such authority on the Director General of Police, State Chief, and it is on the basis of his orders, further investigation of the crimes was taken over by the Assistant Commissioner of Police, Cantonment Sub Division, who had later moved Annexure VII order before the court to seek **Crl.M.C.No.1116/2012** **5** permission for further investigation, is the submission of the Director General of Prosecutions. Section 36 of the Code empowering a superior police officer above the rank of Station House Officer to conduct investigation of the crime, is also canvassed by the learned Director General of Prosecutions to contend that the challenge against Annexure VIII order is without any merit. Reliance is also placed on **State of Bihar and Another v. J.A.C. Saldanha and Others (1980 SCC (Cri.) 272)** to contend that the power of superintendence conferred with Police Chief would comprehend the power to exercise effective control over the investigation of the crime as well and also empowerment to depute any superior police officer above the rank of the Station House Officer in conducting of investigation of one or more crimes. Supporting the arguments canvassed by the learned Director General of Prosecutions, the learned counsel for the additional 2[nd] respondent, Sri.K.K.Dheerendrakrishnan contended that the Police Officer, who applied for permission to conduct further investigation of the crimes was fully empowered to do so as authorised by the Police Chief. Additional 2[nd] respondent has filed a petition **Crl.M.C.No.1116/2012** **6** pointing out serious lapses in the investigation of the crimes, and being satisfied of the cause shown, the Police Chief ordered to take steps for further investigation entrusting the conducting of such investigation to the Assistant Commissioner of Police, Cantonment Sub Division. Copies of the petition filed and communication sent by the Police Chief, produced by the additional 2[nd] respondent, are relied by the counsel to contend that the Police Officer, who moved Annexure VII petition before the court, has full authority to do so, and Annexure VIII order passed by the learned Magistrate granting permission for further investigation in the crimes, in such circumstances, is unassailable. 5. Power to investigate a crime by a Police Officer is regulated by the provisions of the Code. Whether a Police officer has requisite jurisdiction to investigate a crime or not will depend upon a large number of factors including those relating to 'Jurisdiction of the Criminal Courts In Inquiries and Trials' as under Chapter XIII of the Code. There is no dispute that Pettah Police Station is within Shangumugham Sub Division which is **Crl.M.C.No.1116/2012** **7** under the supervisory control of the Assistant Commissioner of that Division. Assistant Commissioner, Cantonment Sub Division has no superintendence or supervisory control over Pettah Police Station which falls within a different Sub Division is conceded to. When that be so, the question emerges for consideration whether the Police Chief by an executive order empower or confer authority on a Superior Police Officer to investigate a crime registered in a local area, over which, he has no jurisdiction. Neither Section 36 of the Code nor Section 18 (1) of the Police Act can render any assistance in taking a view as contended by the Director General for Prosecutions that the Police Chief has authority to entrust the investigation to any superior Police Officer of his choice over the investigation of a crime. No doubt, it is open to the State, and, if such power is delegated to the Police Chief, then, he can also constitute a special team of police officers to investigate a crime registered at a station, empowering such team to do so, but, to entrust a Superior Police officer to investigate a crime, it has to be shown that he has jurisdictional authority to conduct such investigation. Otherwise the result will be calamitous, not only for the reason **Crl.M.C.No.1116/2012** **8** it is done without statutory backing but even flouting the provisions of the Code. If by executive order of Police Chief, investigation of the case could be taken over and entrusted with any person of his choice, then, fairness of investigation will be open to serious doubt. If a Police Officer is entrusted with investigation of crime registered at a different station which does not fall under the local area over which he has jurisdictional authority, for the reason that such Officer is superior in rank to the Station House Officer, it is patently unsustainable, as not sanctioned by law. Section 18 (1) of the Police Act cannot override the statutory provisions covered by the Code which govern and confer power to the Police officer to investigate crime. Section 18 (1) of the Police Act reads thus: ## **[18. State Police Chief:-** _(1) The administration, supervision, direction and control of the Police throughout the State shall, subject to the control of the Government, be vested in an officer designated as the State Police Chief._ Power of superintendence conferred on the Police Chief, by no stretch of imagination, can override the statutory interdiction in **Crl.M.C.No.1116/2012** **9** the matter of investigation by a Police officer as prescribed under the Code. Section 36 of the Code also does not enable any or all Superior Police Officers above the rank of the Officer in charge of the police station to exercise the same powers of the officer in charge of the police station. Section 36 of the Code reads thus: _**36. Powers of superior officers of police:-** Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station._ That Section empowers the Police officers superior in rank to an officer in charge of police station to exercise the powers of such officer in charge of a police station in the local area to which they are appointed. A Superior Police Officer of a different Sub Division, by an executive order of the Police Chief, cannot exercise the powers of the Officer in charge of the police station if that station does not fall within the local area to which he has been appointed. In **Saldanha's case** , referred to above, **Crl.M.C.No.1116/2012** **10** challenge against further investigation entrusted to a Superior Police Officer was negatived taking note that such Police officer enjoyed jurisdiction extending over the whole of the State, and in that circumstance it was held that the power of the State Government to employ him as Police Officer is unquestionable. It is true that power of superintendence enjoyed by the Police Chief would comprehend authority to give directions, guidance and instructions to perform the duty in a certain manner. That Executive power is untrammelled by judicial authority also, is not open to doubt. However if executive order flagrantly flouts jurisdictional conferment it is a different matter. Where it is seen that after cognizance of the offences is taken by the court, executive authority has bypassed the statutory prescriptions, to entrust further investigation of a crime to an Officer who is not having jurisdiction to do so, it cannot be overlooked, nor be meekly accepted, on a premise that permission for further investigation in a crime is formal. Challenge against Annexure VIII order, in the aforesaid circumstances, has to be upheld since permission has been applied by a Police Officer, who is shown to be not having jurisdictional conferment for investigating the **Crl.M.C.No.1116/2012** **11** crimes. 6. Communication sent by the Police Chief directing entrustment of further investigation with the Assistant Commissioner of Police, Cantonment Sub Division was based on a representation filed by the 2[nd] respondent - de facto complainant in one of the crimes and one among the accused in the other. No enquiry over the representation is seen to have been conducted. Annexure VII petition filed by the Assistant Commissioner of Police, Cantonment Sub Division, who was ordered to conduct further investigation, spell out that after going through the case diary, he found some lapses over the investigation conducted in the crimes. On that basis he applied to the court for further investigation of the crime. Solely on the representation of the additional 2[nd] respondent, without anything more, even without looking into the materials already collected in the investigation of the two crimes, a Superior Police officer was appointed ordering him to conduct further investigation of the crimes. Whether such Police officer appointed and posted over a different local area could be appointed so for conducting **Crl.M.C.No.1116/2012** **12** further investigation, was also not examined. Application moved for further investigation (Annexure VII) by the Assistant Commissioner of Police, Cantonment Sub Division, when he has no jurisdictional authority to investigate the crimes, on the basis of communication entrusting further investigation to him, could not have been entertained. Annexure VIII order passed by the learned Magistrate passed on Annexure VII application is unsustainable, and it is quashed invoking the inherent jurisdiction of this Court under Section 482 of the Code. Crl.M.C. is allowed. ## **S.S.SATHEESACHANDRAN JUDGE** prp