Simon George v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 20TH DAY OF FEBRUARY 2014/1ST PHALGUNA, 1935** ## **WP(C).No. 30872 of 2013 (H)** **---------------------------------------** **PETITIONER:** - **-------------------** **SIMON GEORGE, AGED 55 YEARS, S/O.GEORGE, PALAMOOTTIL HOUSE, VELLORA AMSOM, KARIPPAL DESOM POST, KANNUR DISTRICT, PIN - 670 581.** **BY ADVS.SRI.K.J.MOHAMMED ANZAR SRI.A.D.SURESH BABU** **RESPONDENTS:** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY (HOME), THIRUVANANTHAPURAM, PIN - 695 010.** **2. THE STATE POLICE CHIEF & THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM, PIN - 695 010.** **3. THE DISTRICT POLICE CHIEF, KANNUR, OFFICE OF THE SUPERINTENDENT OF POLICE, CIVIL STATION, KANNUR, PIN - 670 003.** **4. THE DY.S.P OF POLICE,** - **TALIPARAMBA, KANNUR DISTRICT, PIN - 670 141.** **5. THE CIRCLE INSPECTOR OF POLICE, PAYYANNUR, KANNUR DISTRICT, PIN - 670 307.** **6. THE SUB INSPECTOR OF POLICE, PAYYANNUR, KANNUR DISTRICT, PIN - 670 307.** **7. C.J.GEORGE @ BABU KUTTAN, S/O.JOSEPH, CHEROTTIYIL HOUSE, VELLORA AMSOM, KARIPPAL DESOM AND POST, KANNUR DISTRICT, PIN - 670 581.** **Prv.** ## **W.P.(C).NO.30872/2013-H:** **8. SEBASTIAN,** - **S/O.JOSEPH, CHEROTTIYIL HOUSE, VELLORA AMSOM, KARIPPAL DESOM & POST, KANNUR DISTRICT, PIN - 670 581.** ## **9. NOYICHAN,** - **S/O.DEVASIYA, CHERUTHALAKKAL HOUSE, NAIKKUNNU, PERUMBADAVU, VELLORA AMSOM, KARIPPAL DESOM AND POST, KANNUR DISTRICT, PIN - 670 581.** **10. ABRAHAM K.J, S/O.JOHNSON, ARANJANIYIL HOUSE, NAIKKUNNU, PERUMBADAVU, VELLORA AMSOM, KARIPPAL DESOM & POST, KANNUR DISTRICT PIN - 670 581.** **11. BINOY,** - **S/O.KUNJU, NAIKKUNNU, PERUMBADAVU, VELLORA AMSOM, KARIPPAL DESOM & POST, KANNUR DISTRICT PIN - 670 581.** **12. JOJI, ILAMPURAYIDATHIL, NAIKKUNNU, PERUMBADAVU, VELLORA AMSOM, KARIPPAL DESOM & POST, KANNUR DISTRICT, PIN - 670 581.** **13. ISSAC,** - **S/O.PAILEE, KATAKUTHIYEL HOUSE, NAIKKUNNU, PERUMBADAVU, VELLORA AMSOM, KARIPPAL DESOM & POST, KANNUR DISTRICT, PIN - 670 581** **14. JOY,** **S/O.PAPPACHAN, URAPPAMKATTIL HOUSE, NAIKKUNNU, PERUMBADAVU, VELLORA AMSOM, KARIPPAL DESOM AND POST, KANNUR DISTRICT, PIN - 670 581.** **15. RAJU, S/O.KUNJU, VELLAPPALLY HOUSE, NAIKKUNNU, PERUMBADAVU, VELLORA AMSOM, KARIPPAL DESOM & POST, KANNUR DISTRICT, PIN - 670 581.** **16. BABY,** - **S/O.PAPPACHAN, URPPAMKATTIL HOUSE, NAIKKUNNU, PERUMBADAVU, VELLORA AMSOM, KARIPPAL DESOM & POST, KANNUR DISTRICT, PIN - 670 581.** **17. SONY,** - **S/O.JOSEPH, ILAMPURAYIDATHIL HOUSE, VELLORA AMSOM, KARIPPAL DESOM & POST, KANNUR DISTRICT, PIN - 670 581.** ## **18. SOJI,** - **S/O.JOSEPH, ILAMPURAYIDATHIL HOUSE, VELLORA AMSOM, KARIPPAL DESOM & POST, KANNUR DISTRICT, PIN - 670 581.** **Prv.** ## **W.P.(C).NO.30872/2013-H:** **19. KAPPOORU VILSON, S/O.KURIAKOSE, KAPPORU HOUSE, VELLORA AMSOM, KARIPPAL DESOM & POST, PERUMBADAVU, KANNUR DISTRICT, PIN - 670 581.** **20. SAJI KADANCHIRA, S/O.KURIAKOSE @ APPACHAN, KADANCHIRAYIL HOUSE, VELLORA AMSOM, KARIPPAL DESOM & POST, PERUMBADAVU, KANNUR DISTRICT, PIN - 670 581.** **21. JOSE CHIRAMATTEL, S/O.MATHEW, CHIRAMATTEL HOUSE, VELLORA AMSOM, KARIPPAL DESOM & POST, PERUMBADAVU, KANNUR DISTRICT, PIN - 670 581.** ## **R1 TO R6 BY PUBLIC PROSECUTOR SMT. S. HYMA.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.30872/2013-H:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P-1: TRUE COPY OF THE F.I.R DATED 22.7.2012 IN CRIME NO.597/2012 OF PERINGOME POLICE STATION.** - **EXT.P-2: TRUE COPY OF THE F.I.R DATED 24.7.2012 IN CRIME NO.606/2012 OF PERINGOME POLICE STATION.** - **EXT.P-3: TRUE COPY OF THE PETITION DATED 28.7.2012 SUBMITTED TO THE 4TH RESPONDENT DY.S.P., TALIPARAMBA.** - **EXT.P-4: TRUE COPY OF THE F.I.R DATED 31.7.2012 IN CRIME NO.632/2012 OF PERINGOME POLICE STATION.** - **EXT.P-5: TRUE COPY OF THE F.I.R DATED 20.8.2012 IN CRIME NO.699/2012 OF PERINGOME POLICE STATION.** - **EXT.P-6: TRUE COPY OF THE JUDGMENT DATED 20.9.2012 IN W.P.(C). 19385/2012 OF THE HON'BLE HIGH COURT OF KERALA.** - **EXT.P-7: TRUE COPY OF THE F.I.R DATED 11.5.2013 IN CRIME NO.293/2013 OF PERINGOME POLICE STATION.** - **EXT.P-8: ORIGINAL PHOTOGRAPHS OF THE PETITIONER SHOWING THE NATURE OF INJURIES SUSTAINED BY HIM IN THE INCIDENTS IN EXT.P7 CRIME.** - **EXT.P-9: TRUE COPY OF THE COMPLAINT DATED 14.5.2013 SUBMITTED TO THE 3RD RESPONDENT DISTRICT POLICE CHIEF, KANNUR BY THE PETITIONER.** - **EXT.P-10: TRUE COPY OF THE COMPLAINT DATED 18.7.2013 SUBMITTED TO THE 2ND RESPONDENT D.G.P BY THE PETITIONER.** - **EXT.P-11: TRUE COPY OF THE COMPLAINT DATED 21.8.2013 SUBMITTED TO THE 3RD RESPONDENT DISTRICT POLICE CHIEF, KANNUR, BY THE PETITIONER.** - **EXT.P-12: TRUE COPY OF THE PETITION DATED 19.11.2013 SUBMITTED BEFORE THE HON'BLE CHIEF MINISTER OF KERALA BY THE PETITIONER.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **K.RAMAKRISHNAN,J. ========================== W.P.(C) NO. 30872 of 2013-H ========================== Dated this the 20[th] day of February, 2014** ## **JUDGMENT** This is an application filed by the petitioner, who is the de facto complainant seeking the intervention of this Court for proper investigation in Ext.P7 Crime under Article 226 and 227 of the Constitution of India. 2. It is alleged in the petition that on the basis of the statement given by him, Peringome police has registered a case as Crime No. 293/2013 as Ext.P7 alleging offences under Sections 143, 147, 148, 341,323 and 324 read with Section 149 of the Indian Penal Code. Ext.P7 is the last one in a series of crimes committed by respondents 7 to 21 and their henchmen against the petitioner, his family members including his 87 year old father. The last incident resulted in registering of Ext.P7 crime in which petitioner was attacked with knife, iron rod and stones and they have committed robbery by looting valuable articles belonging to the petitioner and his father's mobile phone etc. Though the offences attract Sections 307 and 397 **W.P.(C) NO. 30872 of 2013-H** 2 of Indian Penal Code, the police has registered the case showing only minor offences. The petitioner is not satisfied with the manner in which police is conducting investigation in all these matters so he has no other remedy except to file this application before this Court seeking the following reliefs. “i) issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the 2[nd] respondent, the State Police Chief, to entrust the investigation with an officer not below the rank of Deputy Superintendent of Police, to be monitored by the 3[rd] respondent District Police Chief, or with any other agency like the Crime Branch. ii) issue such other and further writs, orders or directions as this Hon'ble Court may deems fit and proper in the facts and circumstances of the case. iii) allow the cost of these proceedings”. 3. On the basis of the filing of this petition a statement was called for from the official respondents and they filed a detailed statement which reads as **W.P.(C) NO. 30872 of 2013-H** 3 ## follows: “ It is respectfully submitted that on 10.5.2012 at about 19.15 hours, the accused persons 1 to 7 formed themselves into an unlawful assembly with deadly weapons at the road in front of the shop of Kizhavanthanam Thankachan, at Vellora amsom Perunpadavu, and wrongfully restrained the complainant, his father and grandfather etc. inflicted injuries by beating with hand and wooden sticks due to previous enmity etc. In this connection, a case in Crime No. 293/2013 u/s. 143, 147,148, 341, 323, 324 r/w 149 IPC is registered against A1) Noyichan,S/o.Devasya, Chirathalakkal (H), Perumpadavu Vellora amsom, Naikkunnu A2) Sony, S/o. Joseph, age 30/13, Elampurayidathil (H), Vellora amsom, Naikkunnu, A3) Soji, S/o. Joseph, age 32/13, Elampurayidathil (H), Vellora amsom, Naikkunnu, A4) Chottaniyil Babukkuttan, Vellora amsom, Perumpadavu, A5) Kappooru Vilson, Vellora amsom, Perumpadavu, A6) Saji Kadanchira Vellora amsom Perumpadavu, and A7) Chiramattel Jose, Vellora amsom, Perumpadavu at **W.P.(C) NO. 30872 of 2013-H** 4 Peringome Police Stationn on 11.5.2012 on the statement of Deepak Simon, S/o.Simon Palamoottil (H), Vellora amsom, Perumpadavu, recorded from Pariyaram Medical College Hospital. During the course of investigation, Section 326 IPC is added as per the statement of the Medical Officer, verifying the Wound Certificate of the complainant's father Simon George, whose injury is grievous in nature. The accused persons 1 to 3 were arrested on 7.6.2013 and produced before the Honourable Judicial First Class Magistrate Court, Payyannur and they were remanded to judicial custody for a period of 14 days. During the course of investigation, the accused 4 to 7 were deleted from the array of the accused column as they were not involved in this case. The Sections 143, 147, 148 and 149 of IPC were deleted. The investigation is conducted from 12.5.2013 to 5.9.2013. After completing the investigation, it is revealed that the accused persons committed offences under Sections 341, 323, 326 read with 34 IPC and the case was charge sheeted before the Honourable **W.P.(C) NO. 30872 of 2013-H** 5 Judicial First Class Magistrate Court, Payyannur on 5.9.2013 against accused 1 to 3 and the Court received the file as C.C. No.1074/2013. Now the case is under trial at Judicial First Class Magistrate Court, Payyannur. In this connection, a counter case in Crime No. 294/13 under Sections 341, 323, 324, 506(2) read with 34 IPC is registered against Simon George, his father Vackachan, his brother Baby, and his son Deepak Simon as per the complaint of Soji Joseph, the 3[rd] accused in Crime No. 293/2013. Section 326 IPC is added in this case as the injury of the complainant and his brother is grievous in nature. In this case also investigation completed and final report filed before the Judicial First Class Magistrate Court, Payyannur and is pending trial”. 4. The counsel for the petitioner submitted though it is stated in the statement that investigation was conducted and final reports were filed in all the cases which were taken on file by the concerned courts, his grievance was that some of the attacks were committed at the time when police protection order given by this **W.P.(C) NO. 30872 of 2013-H** 6 Court was in force as per Ext.P6. So, according to him, it is a fit case where this Court can interfere and grant the relief claimed in the petition. 5. On the other hand, the learned Public Prosecutor submitted that they have conducted the investigation in the proper manner and final reports have been filed and in all those cases the Magistrate Court has taken cognizance as well. 6. Considering the nature of the statement given and also the relief claimed, this Court felt that this can be disposed of at the admission stage itself after hearing the counsel for the petitioner and the Public Prosecutor dispensing with notice to the other party respondents. Though the petitioner had a case that the investigation has not been properly conducted, the statement filed by the official respondents shows that they have conducted investigation and final reports have already been filed in all the incidents and they are now pending before the concerned Magistrate Courts for consideration. In the decision reported in **Sakiri Vasu** v. **State of U.P.** (2008 **W.P.(C) NO. 30872 of 2013-H** 7 (1) KLT 724), the Honourable Supreme Court held that there is alternate remedy lies under Sections 36 and 154 (3) before the concerned police officers and if it is of no avail under Section 156(3) before the Judicial Magistrate or filing criminal complaint under Section 200 of Code of Criminal Procedure in cases where the victims are not satisfied with the investigation conducted. In this case also it is not a case where no investigation was conducted and no final report was filed. But investigation was conducted and final reports were filed in all the incidents mentioned by the petitioner. But he was not satisfied with the persons implicated and the offences shown therein and non-recovery of the articles. If he is not satisfied with the result of the final investigation, then his remedy is to file a private complaint before the concerned courts in those cases by impleading the persons whom, according to him, have actually involved and not included in the final report and also alleging offences which were really committed but not included in the final report and it is for the Magistrate on the basis 8 ## **W.P.(C) NO. 30872 of 2013-H** of the evidence, if any, adduced by the petitioner to consider those aspects and pass appropriate orders in those complaints. So under the circumstances, this Court does not feel that any further direction is required and this petition can be disposed with the above liberty for the petitioner to move the appropriate Magistrate Court for appropriate relief. With the above observation, the petition is disposed of. **Sd/-** **K.RAMAKRISHNAN,JUDGE** rka /true copy/