Sunitha T.K v. State of Kerala (Crl.M.C.No.2136 of 2014; Additional R2 impleaded)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** ## **WEDNESDAY, THE 30TH DAY OF MARCH 2016/10TH CHAITHRA, 1938** ## **Crl.MC.No. 2136 of 2014** **---------------------------------------** **SESSIONS CASE NO.72 OF 2012 OF THE ADDITIONAL DISTRICT AND SESSIONS COURT(AD HOC-I), KOTTAYAM** **---------------------** ## **PETITIONER(S)/DEFACTO COMPLAINANT :** **----------------------------------------------------------------** **SUNITHA T.K, AGED 28 YEARS, D/O.CHATHAPPAN, KUNNATHKUNIYIL HOUSE, ARIKULAM.P.O., KOYILANDY, KOZHIKODE DISTRICT.** ## **BY ADV. SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENT(S)/STATE :** **---------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## *** ADDITIONAL R2 IMPLEADED** **2. JOHN, S/O.JOHN, DIALYSIS SECTION, LAKESHORE HOSPITAL, NETTOOR P.O., MARADU, ERNAKULAM, PIN- 682 041.** *** ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 27.07.2015 IN CRL.M.A.NO.5300 OF 2014.** **R1 BY PUBLIC PROSECUTOR SMT.S.HYMA ADDL.R2 BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-03-2016, THE COURT ON 30-03-2016 PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 2136 of 2014** ## **-------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE 1: TRUE COPY OF COMPLAINT IN CRIME NO.208 OF 2011 FILED BY THE PETITIONER BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, KOYILANDY.** - **ANNEXURE 2: TRUE COPY OF C.M.P.NO.856 OF 2011 FILED BY THE PETITIONER BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, KOYILANDY.** - **ANNEXURE 3: TRUE COPY OF C.M.P.NO.2558 OF 2011 FILED BY THE PETITIONER BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, KOYILANDY.** - **ANNEXURE 4: TRUE COPY OF ORDER ISSUED BY THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, KOYILANDY DATED 02.08.2011.** - **ANNEXURE 5: TRUE COPY OF SUMMONS DATED 01.11.2013 ISSUED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE(ADHOC) KOTTAYAM TO THE PETITIONER.** ## **RESPONDENT(S)' ANNEXURES :** - **ANNEXURE R2(A): COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.512/2011 OF KOTTAYAM EAST POLICE STATION.** - **ANNEXURE R2(B): COPY OF HER FURTHER 161 STATEMENT RECORDED BY BY THE C.I OF POLICE, KOTTAYAM EAST POLICE STATION ON 13.06.2011.** - **ANNEXURE R2(C): COPY OF THE FINAL REPORT DATED 28.09.2011 IN CRIME NO.512/2011 OF KOTTAYAM EAST POLICE STATION.** - **ANNEXURE R2(D): COPY OF THE MEMORANDUM OF TR.P(CRIMINAL) DATED 12.12.2013 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT.** **//TRUE COPY//** **P.A.TO JUDGE** Msd. P.UBAID, J. ============================ Crl.M.C.No.2136 of 2014 ============================ Dated this the 30[th] day of March, 2016 ## ORDER The petitioner herein is the defacto complainant in S.C.No.72 of 2012 of the Court of Session, Kottayam. Trial in the said is now in progress before the learned Fifth Additional Sessions Judge, Kottayam. Crime in the said case was registered on the petitioner's complaint before the Judicial First Class Magistrate Court, Koyilandy, alleging, that the accused enticed her at Koyilandy, took her to Kottayam under some false pretext, and subjected her to rape at Kottayam. The said complaint was forwarded for investigation to the Koyilandi police by the learned Magistrate under Section 156(3) Cr.P.C. Finding that major part of the alleged crime was committed at Kottayam, the Koyilandi police transferred the FIR to the Kottayam East Crl.M.C.No.2136 of 2014 2 Police Station for necessary action. Accordingly, the FIR was re-registered at the Kottayam East Police Station, and investigation proceeded. After completing investigation, the Kottayam East Police submitted final report in Court. After committal, the case is now before the learned Fifth Additional Sessions Judge, Kottayam. In this proceeding brought under Section 482 Cr.P.C., the defacto complainant seeks orders quashing the said prosecution, and directing transfer of the FIR from the Kottayam East Police Station to the Koyilandi Police for denovo investigation, on the ground that the FIR registered at the Koyilandi Police Station was wrongly and illegally transferred to the Kottayam East Police Station. 2. To seek relief, the petitioner relies on the decision of this Court in Bency v. Precelin George [2010(2) KLT 993]. It is a case where a complaint was forwarded to the Sub Inspector of Police, Thrikkakkara from the judicial First Class Magistrate Court-I, Aluva under Section 156(3) Crl.M.C.No.2136 of 2014 3 Cr.P.C. The Thrikkakara police registered FIR on the said complaint, but transferred it to the Mannarcaud police on the ground of territorial jurisdiction. Accordingly, the Mannarcaud police re-registered the FIR there, and proceeded for investigation. When such investigation was in progress, the defacto complainant therein approached this Court with complaint that the FIR was wrongly and illegally transferred by the Thrikkakara police. This Court allowed the application, directed the Mannarcaud police to re-transfer the FIR and the case records to the Thrikkakara police, and directed the Thrikkakara police to complete the investigation and submit final report. 3. When a complaint received in Court is forwarded to the police under Section 156(3) Cr.P.C., the police will have to register a crime, if the complaint reveals a cognizable offence. Once the complaint is forwarded from the Court under Section 156(3) Cr.P.C., the complaint goes off the files of the court. Once it reaches at the police Crl.M.C.No.2136 of 2014 4 station, it is as good as a complaint directly received by the police. It cannot be disputed that a crime registered by the police on the basis of a complaint received directly, can be transferred by the police to the concerned police having territorial jurisdiction. In such circumstances, illegality or impropriety in procedure cannot be alleged. But in Bency's case, this Court directed re-transfer of the FIR only because, the crime was registered by the Thrikkakara Police on the basis of the complaint forwarded from the Court. Still it is a fact, that once a complaint is forwarded, and it is received at the police station, the complaint goes off the files of the court. It will then be as good as a complaint directly received at the police station. Just because a complaint is forwarded from the court, the police is not bound to submit final report against the accused. Even in such cases the police will have liberty to refer the crime, if no offence could be made out on investigation. However, in Bency's case, this Court directed Crl.M.C.No.2136 of 2014 5 re-transfer of the FIR. But, the said decision cannot be applied in the particular facts and circumstances of this case, where the whole investigation process is over, and the police has submitted final report in court. Trial is now going on before the trial court. 4. In the above circumstances, the very material question for consideration is whether any prejudice of any sort would be caused to the defacto complainant, if the case is tried before the Court at Kottayam. Even according to her, she was enticed at Koyilandi, she was taken to Kottayam, and she was subject to rape at Kottayam. This means that the actual and the serious offence alleged by her was committed at Kottayam. No doubt, the Court at Kottayam, will have jurisdiction to try the case. 5. When the Koyilandi police transferred the FIR to the Kottayam police, the petitioner filed an application before the learned Judicial First Class Magistrate Court, Koyilandi for a direction to the Kottayam police to re- Crl.M.C.No.2136 of 2014 6 transfer the FIR to the Koyilandi Police Station. But in the said proceeding, the Kottayam Police was not a party, and even copy of the order was not communicated to the Kottayam police by the petitioner. Without knowing about such an order, the Kottayam police made investigation, and submitted final report in court. The petitioner has no explanation why the Kottayam police was not made a party in the said proceeding, or why she did not even communicate a copy of the order to the Kottayam police. Without doing such things appropriately, she now complains, that the Kottayam police wrongly proceeded for investigation, and so the final report submitted by the Kottayam police will have to be quashed. Such an argument cannot be accepted. Whether the case is tried at Koyilandi or Kottayam, the petitioner's grievance stands redressed. Her complaint was seriously looked into and investigated by the Kottayam police. Now trial is going on before the Court at Kottayam. The learned counsel for the Crl.M.C.No.2136 of 2014 7 petitioner submitted that investigation was not properly conducted by the Kottayam police. If that is her grievance, her remedy is not to have the FIR itself re-transferred. If she finds the necessity of any further investigation, she will have to approach the Court with necessary application. This is not a case where the decision in Bency's case can be applied. The petitioner does not have a case that any sort of prejudice would be caused to her, if the trial proceeds at Kottayam. The FIR cannot be ordered to be re-transferred, when the whole process of investigation is over, and when the final report is filed. 6. The decision of this Court in Bency's case can be applied only at the preliminary stage, when investigation is going on. Here, the whole process is over. The report from the trial court even shows that the learned trial Judge has already examined six witnesses in the case. The defacto complainant has been consistently absent, and the Court has even issued a non-bailable warrant against her. Crl.M.C.No.2136 of 2014 8 It appears that she believes that the case would come back to Koyilandi. This sort of approach cannot be accepted. Trial of the case at Kottayam will not cause any sort of prejudice to the petitioner. The Kottayam police made investigation as the authority having jurisdiction under the law because, the major offence was committed at Kottayam, within the jurisdiction of the Kottayam East Police Station. At this stage, where trial is half way, it would be inappropriate, and illegal to quash the prosecution on the unacceptable ground alleged by the defacto complainant, and to order re-transfer of the FIR, and denovo investigation. In the result, this petition is dismissed in limine, without being admitted to files. Sd/- P.UBAID JUDGE rkj //TRUE COPY// P.A. TO JUDGE