V. Vijayakumar v. State of Kerala and C. Premanandhakrishnan

CRL.MC NO. 8793 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945** **CRL.MC NO. 8793 OF 2022** **CRIME NO.0/0 OF ,** **AGAINST THE ORDER/JUDGMENT CRMP 1043/2022 OF JUDICIAL** **MAGISTRATE OF FIRST CLASS ,CHAVAKKAD** ## **PETITIONER/S:** V.VIJAYAKUMAR AGED 72 YEARS SON OF APPU NAIR, ANUGRAHA, PUTHUPARIYARAM, PALAKKAD678 731, NOW RESIDING AT NO.13/38, KRISHNA ENCLAVE, MALLISSERY PARAMBU, WEST GURUVAYOOR, OPP. MULLATHARA TEMPLE, THRISSUR., PIN - 680101 BY ADVS. GAJENDRA SINGH RAJPUROHIT AKHIL GEORGE THANSEELA M.B. ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 C.PREMANANDHAKRISHNAN POLICE INSPECTOR, TEMPLE POLICE STATION, GURUVAYOOR., PIN - 680101 BY ADVS. PUBLIC PROSECUTOR SUMAN CHAKRAVARTHY K.R.RIJA(R-781) RAHUL S.NATH(K/001367/2021) ## **OTHER PRESENT:** SRI HRITHWIK, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 8793 OF 2022 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------Crl.M.C. No. 8793 of 2022 -------------------------------------Dated this the 9[th] day of November, 2023** ## **O R D E R** The petitioner herein is the complainant in CMP No. 1043/2022 pending before the Judicial First Class Magistrate Court, Chavakkad. It is the case of the petitioner that the accused obstructed the petitioner while he was proceeding in a direction in which he has a right to proceed and the accused criminally intimidated one worker of the petitioner by threatening that he will implicate him in false cases and cause injury to the body, property and reputation, if he does not disown the petitioner and intentionally used unwarranted force upon him knowing it to be likely that by the use of such force he will cause injury, fear and annoyance to him. According to the petitioner, the accused was in charge of the police station having territorial jurisdiction. Hence, the petitioner made CRL.MC NO. 8793 OF 2022 3 complaint for the revised SDPO and also before the City Police Commissioner, Thrissur. However, no action was taken and hence, the petitioner filed a private complaint before the Judicial First Class Magistrate Court, Chavakkad. Annexure-3 is the complaint. The Judicial First Class Magistrate Court, Thrissur as per the order dated 14.03.2022 forwarded the complaint of the petitioner against the 2[nd] respondent for registration of the FIR to the Police Station having territorial jurisdiction to investigate into the allegations. The accused being the Station House Officer of the said police station without registering an FIR challenged the order of the learned Magistrate before this Court is the submission. Subsequency, this Court as per Annexure-6 order, was pleased to set aside the order passed by the learned Magistrate and remanded back the case to the Judicial First Class Magistrate for fresh consideration as evident by Annexure-6 order. At this stage, the petitioner approached the Apex Court with an SLP (Crl.) No. 9062/2022 challenging Annexure-6 order. The Apex Court dismissed the appeal as per Annexure-7 order. Thereafter, the Judicial First Class Magistrate Court, Chavakkad reconsidered CRL.MC NO. 8793 OF 2022 4 the private complaint and pursuant to Annexure-6 order, refused to exercise its power under Sec. 156(3) Cr.P.C. by holding that a fair investigation from the part of the Police cannot be expected even if the complaint is forwarded for investigation and then decided to proceed under Chapter XV of the Code of Criminal Procedure. Annexure-8 is the order. Aggrieved by the same, this Crl.M.C. is filed. 2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the counsel appearing for the 2[nd] respondent. 3. The counsel for the petitioner reiterated the contentions raised in this Crl.M.C. The counsel also submitted that the learned Magistrate ought to have referred the matter under Sec. 156(3) Cr.P.C. to the Police instead of deciding to proceed under Chapter XV of the Crl.P.C. Different contentions are raised by the petitioner to substantiate this case. Several decisions are also cited by the counsel for the petitioner to support his contention. The counsel appearing for the 2[nd] respondent supported Annexure-8 order. 4. This Court perused Annexure-8 order. In Annexure-8 CRL.MC NO. 8793 OF 2022 5 order, the learned Magistrate considered the matter in detail and thereafter, decided to proceed with Chapter XV of the Cr.P.C. The relevant portion of the same is extracted hereunder: “6. It is to be noted that the officer in charge of the Guruvayur Temple Police Station was the person who was arrayed as the respondent in MP 1043/2022. The same person still remains as the Officer in Charge of the Guruvayur Temple Police Station. It is to be noted that as per the dictum of the Hon'ble Supreme Court in **CBI v State of Rajasthan** : AIR 2001 SC 668, it was noted by the Hon'ble Supreme Court that Magistrate Courts in exercise of powers under section 156(3) CrPC can forward complaints only to the officer in charge of police station. It was held with certainty that the magisterial power cannot be stretched under the said sub-section beyond directing the officer in charge of a police station to conduct the investigation. 7. While disposing off Special Leave to Appeal (Crl) No(s) 9062/2022, the Hon'ble Supreme Court has stated that "Needless to say that the JudicialMagistrate shall decide the matter in its own merit and in accordance with law without being influenced by any of the observations made by the high Court in the impugned order". A perusal of the records and affidavit on record would go on to show that the complainant herein had even approached the police station concerned, the Guruvayur SDPO, the City Police Commissioner and even the Director General of Police before filing of this complaint. Even though the complainant had approached all these ranking officials of the Police Department, FIR was not registered and CRL.MC NO. 8793 OF 2022 6 no investigation was done. As already stated, even though this court had once forwarded the complaint for investigation under section 156(3) CrPC, no FIR was registered. 8. Considering all these aspects, I am now of the opinion that a fair investigation from the part of police cannot be expected even if the complaint is forwarded under section 156(3) CrPC. I am now of the opinion that proceeding with the complaint under chapter XV of the Code of Criminal Procedure will be a better recourse to undertake now to deal with the complaint at hand, considering the facts and circumstances that surround the case. Under these circumstances, the complaint is not forwarded under section 156(3) and is being proceeded with under chapter XV of the Code of Criminal Procedure. For examination of complainant under section 200 CrPC, post on 19/11/2022.” 5. A perusal of the above order would show that the learned Magistrate exercised his discretion and decided to proceed with the complaint under Chapter XV of the Cr.P.C. It is an admitted fact that the accused in the case is a police officer. In such circumstances, I failed to understand why the petitioner insists to refer this complaint for police investigation under Sec. 156 (3) Cr.P.C. The learned Magistrate will be in a better position to decide the matter especially because the allegation is against the police officer. Therefore, I am of the considered opinion that there is nothing to interfere with the above order CRL.MC NO. 8793 OF 2022 7 passed by the learned Magistrate. Therefore, there is no merit in this Crl.M.C. and accordingly, the same is dismissed. **sd/P.V.KUNHIKRISHNAN JUDGE** SKS CRL.MC NO. 8793 OF 2022 8 ## **APPENDIX OF CRL.MC 8793/2022** ## PETITIONER ANNEXURES |Annexure1|TRUE PHOTOCOPY OF THE RECEIPT DATED| |---|---| ||17.11.2021 ISSUED BY GURUVAYUR SDPO| |Annexure2|A TRUE PHOTOSTAT COPY OF THE| ||ACKNOWLEDGMENT CARD RECEIPTS ISSUED BY THE| ||OFFICE OF CITY POLICE COMMISSIONER,| ||THRISSUR 17.11.2021| |Annexure3|A TRUE PHOTOSTAT COPY OF THE COMPLAINT IN| ||CRL.M.P.NO. 1043/2022 BEFORE HON'BLE| ||JUDICIAL FIRST CLASS MAGISTRATE COURT,| ||CHAVAKKAD| |Annexure4|A TRUE PHOTOSTAT COPY OF THE LETTER DATED| ||26.11.2021 ISSUED BY ACCUSED TO THE| ||GURUVAYUR DEVASWOM, GURUVAYUR| |Annexure5|A TRUE PHOTOSTAT COPY OF THE LETTER DATED| ||09.09.2020 ISSUED BY THE DEPUTY POLICE| ||INSPECTOR GENERAL, KANNUR| |Annexure6|TRUE PHOTOCOPY OF THE JUDGMENT DATED| ||06.07.2022 IN CRL.MC. NO.1814/2022 PASSED| ||BY THIS HON'BLE COURT.| |Annexure7|A TRUE PHOTOSTAT COPY OF THE ORDER DATED| ||10.10.2022 OF THE HON'BLE SUPREME COURT OF| ||INDIA IN S.L.P.(CRL).NO.9062/2022| |Annexure8|CERTIFIED COPY OF ORDER DATED 25.10.2022| ||IN CRL.MP. NO.1043/2022 PASSED BY THE| ||JUDICIAL FIRST CLASS MAGISTRATE, CHAVAKKAD|