Usha Devi, Manager of ALP and UP School v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 24[TH] DAY OF JULY 2023 / 2ND SRAVANA, 1945 ``` ``` WP(CRL.) NO. 691 OF 2022 ``` ## **`PETITIONER:`** ``` USHA DEVI, MANAGER OF ALP AND UP SCHOOL RESIDING AT AMBADY, PARAMOUR P.O NARIKKUNI, KAKKOOR, KOZHIKODE RURAL KERALA, INDIA, PIN – 673585 BY ADVS. VIJAI MATHEWS JIJI THOMAS JOSEPH THEKKEKURUVANAL ``` ## **`RESPONDENTS:`** |`1`||`STATE OF KERALA`| |---|---|---| |||`REPRESENTED BY ITS HOME SECRETARY`| |||`SECRETARIAT E, THIRUVANANTHAPURAM-695001`| |`2`||`DISTRICT POLICE CHIEF`| |||`KOZHIKODE RURAL, KOZHIKODE, PIN – 673104`| |`3`||`INSPECTOR OF POLICE`| |||`KAKKUR POLICE STATION`| |||`KAKKUR POST, KOZHIKODE DISTRICT, PIN – 673619`| |`4`||`STATION HOUSE OFFICER`| |||`CYBER CRIME POLICE STATION`| |||`KOZHIKODE RURAL, VADAKARA, PIN – 673105`| |`5`|`*`|`REMYA S`| |||`AGED 30 YEARS`| |||`W/O VIPIN VIJAYAN,`| |||`SIVAGEETHAM, PERUMPOYIL, KAKKUR P.O.,`| |||`KOZHIKODE ,PIN-673613`| |||`(*ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED`| |||`26/09/2022 IN I.A.NO./1/2022 IN WP(CRL)691/2022`| W.P.(Crl).No.691 of 2022 -:2:- ``` BY ADVS. P.NANDAKUMAR AMRUTHA SANJEEV VIVEK VIJAYAKUMAR K.G. DEVIPRIYA ``` ## **`OTHER PRESENT:`** ``` SRI.NOUSHAD K.A, PUBLIC PROSECUTOR ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 24.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(Crl).No.691 of 2022 -:3:- ## **BECHU KURIAN THOMAS, J. =================== W.P.(Crl).No.691 of 2022 ===================** _Dated this the 24[th] day of July, 2023_ ## **JUDGMENT** Petitioner seeks a direction to conduct a proper investigation on Ext.P3 complaint through a superior police officer with the assistance of Cyber Forensic Experts, and also to take further action in accordance with law. 2. Petitioner is the Manager of an Aided School. She had appointed one Smt. Remya. S, as a UPST with effect from 15.07.2021. Subsequently, it is alleged that, on noticing a preferential right of another teacher by the name of Smt. Fasna, a fresh order dated 20.07.2021, was issued cancelling the appointment of Smt. Remya.S and appointing Smt. Fasna as UPST. 3. The aforesaid order dated 20.07.2021 has given rise to disputes between the Manager of the school and Smt. Remya.S, which was initially taken before the Assistant Educational Officer, who found in favour of Smt. Remya. The appeal filed by the Manager to the District Educational Officer also failed. The issue is now pending consideration before the Director of General Education. 4. In the meantime, on 13.09.2021, the petitioner filed a complaint before the 3[rd] respondent alleging that Smt. Remya.S. had W.P.(Crl).No.691 of 2022 -:4:- hacked her account and uploaded documents to the Samanwaya portal. On the basis of the said complaint, a preliminary enquiry was conducted, and the police came to the conclusion, with the assistance of the Cyber Crime Police, that no offence has been committed by Smt. Remya, as uploading of documents was carried out under the directions of the petitioner/Manager before issuance of Ext.P2 order cancelling her appointment. An intimation of the conclusions arrived at by the police was also given to the petitioner as per Ext.P4 dated 03.02.2022. 5. Since the police have, under the preliminary enquiry, came to the conclusion that Sri. Remya.S. has not committed any offence, petitioner has approached this Court seeking direction to conduct a proper investigation. 6. I have heard Sri. Vijai Mathews, the learned counsel for the petitioner, Sri. Noushad.K.A, the learned Government Pleader as well as Sri. P. Nandakumar the learned counsel for the additional 5[th] respondent. ## 7. In _**Sakiri Vasu vs State of Uttar Pradesh and Others**_ _[(2008) 2 SCC 409],_ Supreme Court had held that, if the police refused to register a crime pursuant to a complaint, the remedy of an aggrieved person is to approach the court of first instance in accordance with the provisions of the Code of Criminal Procedure W.P.(Crl).No.691 of 2022 -:5:- 1973. It was also observed that the High Courts must discourage petitions filed under Article 226 of the Constitution of India by persons aggrieved for non-registration of a crime. 8. The Supreme Court had in _**Lalita Kumari Vs. Govt. of Uttar Pradesh** [(2014) 2 SCC 1]_ observed that registration of F.I.R is a mandatory procedure except in a few limited cases. Seven conclusions were arrived at by the Supreme Court, of which six are relevant. The relevant conclusions [except conclusion no. (iv)] mentioned in paragraph 111 of the aforesaid Judgment are extracted as below: _(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation._ _(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not._ _(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further._ _(v) The scope of preliminary inquiry is not to verify the_ W.P.(Crl).No.691 of 2022 -:6:- _veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence._ _(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:_ _(a) Matrimonial disputes/family disputes_ _(b) Commercial offences_ _(c) Medical negligence cases_ _(d) Corruption cases_ _(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay._ _The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry._ _(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry._ 9. In the instant case, it is noticed that after receiving a complaint, the police had instead of registering an F.I.R. proceeded to conduct a preliminary enquiry. The said enquiry did not reveal the commission of an offence and hence a crime was not registered. The W.P.(Crl).No.691 of 2022 -:7:- enquiry revealed that petitioner herself had provided the user id and password of the Samanwaya portal to the 5[th] respondent. It was also revealed that the documents to be uploaded to the AEO’s office was handed over by the petitioner along with the necessary user id and password. However, on 19.7.2021, the site was blocked and using the new password, data about her joining the school was uploaded. 10. The circumstances of the case reveal that the police were justified in their action in conducting a preliminary enquiry and had even informed the conclusion to the petitioner through Ext.P4. The remedy of an aggrieved person in such circumstances is not to approach this Court in a writ petition under Article 226 but must approach the jurisdictional court in accordance with law. 11. Even though the learned counsel for the 5[th] respondent argued in detail about the falsity of the case of the petitioner, and had also contended that the complaint was filed solely for the purpose of harassing her and to compel and coerce her to withdraw the proceedings initiated before the statutory authorities under the Kerala Education Rules, I am of the view that it is not necessary to enter into a finding on those aspects, in this judgment. 12. As observed by the Supreme Court in **Sakiri Vasu’s case** (supra), a person aggrieved by the non-registration of a crime can approach the jurisdictional Magistrate instead of approaching this W.P.(Crl).No.691 of 2022 -:8:- Court under Article 226 of the Constitution of India. If the petitioner has a grievance that her complaint has not been registered as a crime, the remedy is before the court of first instance, in accordance with the law and not to approach this Court under Article 226 of the Constitution of India. Therefore, reserving the liberty of the petitioner to approach the court of first instance in accordance with law, this writ petition is dismissed. Sd/- **BECHU KURIAN THOMAS JUDGE** jka/24.07.23. W.P.(Crl).No.691 of 2022 -:9:- ## **`APPENDIX OF WP(CRL.) No.691/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit-P1TRUE COPY OF THE APPOINTMENT ORDER OF SMT. REMYA S, DATED 15-7- 2021. ``` ``` Exhibit-P2TRUE COPY OF THE ORDER OF THE OF THE ADMINISTRATIVE PROCEEDINGS, DATED 20-7- 2021. ``` ``` Exhibit-P3TRUE COPY OF THE COMPLAINT DETAILS OF THE PETITIONER, DATED 13-9-2021. ``` ``` Exhibit-P4TRUE COPY OF THE REPORT FROM THE OFFICE OF THE INSPECTOR OF POLICE , CYBER CRIME POLICE STATION , KOZHIKODE RURAL, DATED 3-2-2022. ``` ``` Exhibit -P5TRUE COPY OF THE LETTER SUBMITTED BY SMT. REMYA DATED 26-7-2021. ``` ``` Exhibit -P6TRUE COPY OF THE LETTER SUBMITTED BY SMT. REMYA, DATED 27-7-2021 ```