Rajasimha.R.M. v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** # **WP(C).No. 5562 of 2019** ## **PETITIONER:** **RAJASIMHA.R.M., PRESIDENT, KERALA AYYAPPA DEVOTTEE FORUM, MARUTHOOR HOUSE, KANNATTU LANE, AYYANTHOL.P.O., THRISSUR-680 003.** **BY ADVS. SRI.R.KRISHNA RAJ, SMT.E.S.SONI SMT.KUMARI SANGEETHA S.NAIR** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF HOME, KERALA GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**DIRECTOR GENERAL OF POLICE**| ||**THIRUVANANTHAPURAM-695 001.**| |**3**|**SUPERINTENDENT OF POLICE**| ||**OFFICE OF THE DISTRICT POLICE CHIEF,**| ||**PATHANAMTHITTA-689 645.**| |**4**|**SUB INSPECTOR OF POLICE**| |---|---| ||**PATHANAMTHITTA POLICE STATION,**| ||**PATHANAMTHITTA-689 645.**| |**5**|**MRS.P.K.SREEMATHY,**| ||**MEMBER OF PARLIAMENT, GOVERNMENT OF INDIA,**| ||**RESIDING AT EDATHIL, ATHIYADAM, PAYYANGADI,**| ||**KANNUR-673 303.**| **SRI.SUMAN CHAKRAVARTHY , PUBLIC PROSECUTOR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ------------------------------------- ## W.P.(C) No. 5562 of 2019 -----------------------------------Dated this the 19[th] day of March, 2019 ## J U D G M E N T The prayers in the above Writ Petition (Civil) are as follows: " - _a) Direct the 4[th] respondent to take action in Exhibit P-1 complaint and take action against the 5[th] respondent by the issue of a writ of mandamus or such other writ or order or direction._ - _b) Direct the 1[st] and 2[nd] respondent to consitute a special investigation team to conduct investigation and take action in Exhibit P-1 complaint and report the progress of the investigation to this Hon'ble Court by the issue of a writ of mandamus or such other writ or order or direction._ - _c) Order an investigation in Exhibit P-1 complaint monitored by this Hon'ble Court by the issue of appropriate writ or order or direction. "_ 2. Heard Sri.R.Krishna Raj, learned counsel appearing for the petitioner and Sri.Suman Chakravarthy, learned Prosecutor appearing for official respondents 1 to 4. In the nature of the orders proposed to be passed in this writ petition, notice to contesting respondent No.5 will stand dispensed with. 3. The complaint voiced by the petitioner is that he has filed a petition before the 4[th] respondent Sub Inspector of Police, Pathanamthitta Police Station, alleging commission of offences u/s 295A, 298, 294, 354A of the IPC r/w Sec.119A of the Kerala Police Act by the 5[th ] respondent through her speech made on W.P.(C) No. 5562 / 2019 ..3.. 9.10.2018, wherein she has stated that the custom that is prevalent in the Hindu Temples, insisting women devotees to take a dip in the pond before entering the temple was intended to enable the men to enjoy the body of women in the wet dress. The 4[th] respondent has refused to take any action in the matter. Further that, though the petitioner have approached the Superior Police Officers concerned pointing out the refusal on the part of the 4[th] respondent to take action in the complaint filed by the petitioner, they have not taken any action in the matter so far. 4. It is averred in Ext.P-1 petition dated 17.10.2018 that, the abovesaid speech is said to have been made by the 5[th] respondent on 9.10.2018 in a public meeting of the Janathipathiya Mahila Association, etc. 5. It is further pointed out that, since no action was taken by the 4[th] respondent on Ext.P-1 petition, the petitioner has filed another petition before the 3[rd] respondent Superintendent of Police in the Office of the Director W.P.(C) No. 5562 / 2019 ..4.. Police Chief, Pathanamthitta, pointing out the above inaction of the 4[th] respondent and requesting for action on the matters raised in Ext.P-1 petition, etc. Though it is stated in the WP(C) that the petition said to have been filed before the 3[rd] respondent is Ext.P-2, a perusal of Ext.P-2 as produced in the above WP(C) show that Ext.P-2 is the same as Ext.P-1. The petitioner would point out that Exhibits P-2 and P-3 would show that he has dispatched the abovesaid petitions to the respondent authorities concerned. Since no further action was forthcoming from the respondents, the petitioner had filed an application under the Right to Information Act to know the outcome of the matter and that he has now been informed as per Ext.P-3 letter dated 22.12.2018 issued by the State Public Information Officer attached to the 3[rd] respondent Office of the District Police Chief, Pathanamthitta, that the petition has been W.P.(C) No. 5562 / 2019 **==> picture [18 x 9] intentionally omitted <==** duly received and is being enquired into and that the legal advice of the District Director of Prosecution has also been sought in the matter, etc. The petitioner would point out that, since the factual aspects alleged in Ext.P-1 petition discloses cognizable offences, it is the statutory duty of the 4[th] respondent Sub Inspector of Police, Pathanamthitta, to register a crime and then proceed with the matter of investigation as mandated in the Code of Criminal Procedure, 1973, and further that the 4[th] respondent is thus cast with the duty to act upon the petitioner so as to register crime on cognizable offences so disclosed therein, and that failure to exercise those statutory duty is liable to be interdicted by this Court in the issuance of a writ of mandamus, so as to command and direct the competent Police authorities concerned to act upon the matters raised in Ext.P-1 to register a crime for the cognizable offences so disclosed therein, etc. Further the petitioner also makes a prayer that mandamus should also be issued to the 1[st] and 2[nd] respondents to constitute a special investigating team to conduct investigation and take action in the matter in Ext.P-1 petition and W.P.(C) No. 5562 / 2019 ..6.. report progress of the investigation to this Court, etc. The petitioner mainly places reliance on the dictum laid down by the Constitutional Bench of the Apex Court in the celebrated case in _**Lalita Kumari v. Govt. of U.P. & Ors [(2014) 2 SCC 1].**_ 6. Sri.Suman Chakravarthy, learned Public Prosecutor appearing for respondents 1 to 4 has submitted on the basis of instructions that, after examination of the matter and after getting necessary legal advice, the competent police authorities concerned have decided to close the matters raised by the petitioner in Ext.P-1 petition. 7. The Constitution Bench of the Apex Court in the abovesaid landmark judgment in _**Lalita Kumari's**_ case supra has held that the First Information Report (FIR) is a pertinent document in our criminal law procedure, and its main object from the informant's point of view is to set the criminal law in motion, and from the point of view of the Investigating authorities, it is to obtain information of the alleged criminal activity to be able to try to trace and bring the book the guilty. A Division Bench of this Court in W.P.(C) No. 5562 / 2019 ..7.. a recent judgment dated 22.5.2018 in the case in _**Fr.Sebastian Vadakkumpadan v. Shine Varghese**_ **(WA.No.625/2018) [reported in 2** _**018 (3) KLT 177 = 2018 (3) KHC 590]**_ has dealt with various issues arising out of the dictum laid down by the Apex Court in _**Lalita Kumari's**_ case supra, and has considered whether a writ court in exercise of its powers conferred under Article 226 of the Constitution of India, should straightaway issue mandamus so as to direct the Police authorities concerned to register a crime on the premise that the information conveyed by the first informant discloses cognizable offences. One of the cardinal issues framed by the Division Bench in _**Fr.Sebastian Vadakkumpadan's**_ case supra, is as to whether the judgment of the Apex Court in _**Lalita Kumari's**_ case supra would permit a complainant to do away with the statutory remedies and instead take a direct request for judicial review. 8. While discussing the various aspects emanating from Secs.154, 156 & 157 of the CrPC, the Division Bench has held in paragraph No.43 (of the KLT report) that it becomes clear that W.P.(C) No. 5562 / 2019 ..8.. investigation begins when the police officers recording the first information about a cognizable offence and the Court has held that Sec.154 of the CrPC is mandatory and the officer concerned must register the case if the information discloses cognizable offence. That the Police will have latitude, an option or discretion in registering an FIR, that latitude will entail serious consequences affecting the public order, etc. Further it has been observed by the Division Bench in paragraph No.44 of the abovesaid case, that _**Lalita Kumari's**_ case supra equally emphasises the prompt, timely investigation by the police and that though registration of FIR is compulsory, the immediate arrest of the accused is not. Further the exceptions laid out in the _**Lalita Kumari's**_ case supra regarding registration of FIR and the cases in which preliminary enquiry is to be conducted has also been dealt with therein. After considering various issues of the matter, the Division Bench in _**Fr.Sebastian Vadakkumpadan's**_ case supra has categorically held in paragraph 55 thereof that, the abovesaid ratio and principles laid down by the Apex Court in _**Lalita**_ W.P.(C) No. 5562 / 2019 ..9.. _**Kumari's**_ case supra does not in any manner oblitrate the alternate statutory remedies available to a complainant after the police refuses to register a FIR. Paragraphs 57 to 71 of the said Division Bench judgment deals with the issue as to whether a complainant could disregard the alternate remedies provided under the Code of Criminal Procedure and insist on a writ remedy. The Division Bench in paragraph No.71 of the said judgment has held that _**Lalita Kumari's**_ case supra has not dealt with the remedies available to an aggrieved person on whose complaint about cognizable offence the police has not acted and that _**Lalita Kumari's**_ case supra has only dealt with issue as to whether the police would exercise the discretion and indulge in any preliminary enquiry before the register of crime, therefore the precedents seeking on a complaint by alternate remedies have not been set at known and that such judicial precedents still hold the field. 9. In paragraphs 72 to 82 of the said judgment the Division Bench deals with the various matters relating to refusal to register a crime and the alternate remedies available to such an aggrieved complainant. It has been noted that in the case in _**Aleque**_ W.P.(C) No. 5562 / 2019 ..10.. ## _**Padamsee and Others v. Union of India and Others [(2007)**_ _**6 SCC 171]**_ the Apex Court after referring to its many earlier decisions has held that whenever the police receives an unique information about the alleged commission of cognizable offence, they must register the FIR and the Apex Court has emphasised that there can be no dispute on that scope, but then the Apex Court went down to answer an identical question as to whether a writ can be issued to the police authorities to register a crime, and in other words what costs the Court should adopt to a person if the Police have not acted on his complaint. Placing reliance on the dictum laid in _**AIIMS Employees Union v. UOI And Ors. [1996 (11) SCC 582] and Gangadhar Janardan Mhatre v. State of Maharashtra And Ors. [2004 Cr. LJ 4623 (FC)]**_ , it has been held in _**Aleque Padamsee's**_ case supra that _“the remedy available is …...........................................by filing a complaint before the Magistrate”_ and thereafter it has been noted that the seeming judicial cleavage between two sets of decisions and the Apex Court has finally reiterated therein that _“the police officials ought to register the FIR whenever the facts brought its notice to show that_ W.P.(C) No. 5562 / 2019 **==> picture [22 x 7] intentionally omitted <==** _cognizable offence has been made out and in case the police officials fail to do so, the modalities to be adopted are set out in Secs.190 r/w 200 of the CrPC.”_ In paragraph Nos.73 & 74 the Division Bench has also referred to two other decisions of the Apex Court. In that context it is pertinent to note that in _**Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage And Ors. [(2016) 6 SCC 277]**_ the Apex Court after referring to _**Sakiri Vasu v. State of U.P. And Others [(2008) 2 SCC 409]**_ and held that if a person has a grievance that the police has not investigated his complaint or having registered it, they have not investigated properly, then the aggrieved persons remedy is _“not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Sec.156(3) of the CrPC”._ Accordingly it has been held by the Division Bench that if the complainant approaches the Magistrate and if he/she is prima facie satisfied, then the learned Magistrate can direct the police to register an FIR, and even if the police has already registered the crime, the learned Magistrate can direct proper investigation which W.P.(C) No. 5562 / 2019 ..12.. includes in his/her jurisdiction recommending a change of investigating officer as well. Further in _**Sudhir Bhaskarrao Tambe's**_ case supra, the tendency for complainants to rush to the High Court and thus to flood the High Court with such petitions has also been complied upon which reads as follows: “ _[W]hat we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions._ Hence, we have held that the complainant must avail of his alternate remedy to approach the concerned Magistrate Under Section 156(3), Code of Criminal Procedure, and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.” (italics supplied) 10. In the light of these aspects, the Division Bench has held in paragraph 75 of _**Fr.Sebastian Vadakkumpadan's**_ case supra that a writ Court can only play a corrective role to ensure that the integrity of the investigation is not compromised and that the writ court in its discertion may not initiate an investigation and that function clearly lies in the domain of the W.P.(C) No. 5562 / 2019 ..13.. executive, and it is up to the investigating agencies concerned to decide whether the material produced before them provides a sufficient basis to launch an investigation. It must also be borne in mind that there are provisions in the Code of Criminal Procedure which empower the courts of the first instance to exercise a certain degree of control over ongoing investigations as as been held in decisions as in _**Kunga Nima Lepcha & Ors v. State of Sikkim & Ors [(2010) 4 SCC 513].**_ In that view of the matter the Division Bench has concluded in paragraph 77 of the said judgment that the authoritative dictum laid down by the Apex Court in _**Lalita Kumari's**_ case supra, has not in any manner disturbed the proposition of law that, a High Court while exercising its jurisdiction under Article 226 of the Constitution of India, that does not ensure that the suitor has no other efficacious, alternative remedy and that so the precedential value of _**Aleque Padamsee's**_ case supra, _**AIIMS Employees Union' s**_ case supra, _**Gangadhar Janardan Mhatre's**_ case supra, _**Sudhir Bhaskarrao Tambe's**_ case supra _**, Sakiri Vasu's**_ case supra, W.P.(C) No. 5562 / 2019 ..14.. _**Kunga Nima Lepcha's**_ case supra, etc, remains undisturbed and undiminished. 11. In the light of these aspects, the Division Bench of this Court had set aside the impugned judgment of the learned Single Judge of this Court which had directed the registration of the crime, and had relegated the aggrieved party to take repose to the alternate statutory remedies conferred as per the provisions contained in Code of Criminal Procedure, 1973, etc. In the light of the abovesaid legal principles laid down by the Division Bench in _**Fr.Sebastian Vadakkumpadan's**_ case supra, this Court is inclined to take the view that the petitioner will have to be relegated to the alternate remedies conferred as per the Code of Criminal Procedure, 1973, as has been held by the Division Bench in the abovesaid case. In that view of the matter, the plea of the petitioner for this Court's direct interdiction fails, and liberty is granted to the petitioner to work out his remedies in accordance with law. Except the abovesaid issue, this Court has not considered any other issues. All such issues are left open to be W.P.(C) No. 5562 / 2019 **==> picture [24 x 9] intentionally omitted <==** considered and determined in appropriate proceedings in the manner known to law. With the said liberty, the above Writ Petition (Civil) will stand dismissed. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C) No. 5562 / 2019 ..16.. ## **APPENDIX** **PETITIONER'S EXHIBITS: EXHIBIT P1 COPY OF THE COMPLAINT DATED 13.11.2018 EXHIBIT P2 COPY OF THE COMPLAINT DATED 17.10.2018 EXHIBIT P3 COPY OF THE REPLY OF THE 3RD RESPONDENT DATED 22.12.2018.**