Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Ker) 1354

IN THE HIGH COURT OF KERALA AT ERNAKULAM
Nitin Jamdar, C.J., S.Manu, J.
Vinod Valiyatoor – Petitioner
Versus
X and ors. - Respondent
WA NO. 1712 OF 2024
Decided On : 13-11-2024

Advocates:
Advocate Appeared:
For the Petitioner: Sri. S. Sreekumar (Senior), Sri. N.M. Madhu, Sri. C.S. Rajani.
For the Respondent:Senior Advocate, Sri. A. Kumar, Sri. P. Narayanan, Senior Government Pleader & Addl. Public Prosecutor.

IMPORTANT POINT
The court clarified that Section 175(4) of the BNSS is discretionary, not mandatory, allowing the Magistrate to independently decide on investigations without undue influence from prior orders.

Headnote:
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 175(4) - Writ petition challenging the refusal to register FIR - The court held that Section 175(4) is discretionary and not mandatory, allowing the Magistrate to decide on the necessity of a report from superior officers. (Paras 17, 28)
(B) Criminal Procedure Code, 1973 - Section 156 - The court emphasized that remedies under the Cr.P.C. should be exhausted before approaching the High Court under Article 226. (Paras 18, 26)
Facts of the case:
The Petitioners alleged that their complaints regarding rape were not acted upon by the police, leading to a writ petition for mandamus to register an FIR and investigate the matter.
Findings of Court:
The court found procedural irregularities in the learned Single Judge's order and emphasized the need for the Magistrate to independently assess the situation without undue influence from prior judgments.
Issues: The main issues included the interpretation of Section 175(4) of the BNSS and whether the learned Magistrate was obliged to hear the accused before ordering an investigation.
Ratio Decidendi: The court ruled that the learned Magistrate must independently decide the necessity of an investigation without being influenced by previous orders, and that the term 'may' in Section 175(4) indicates discretion.
Result: Appeal allowed; the impugned judgment and subsequent order by the Magistrate were quashed.

JUDGMENT :

Nitin Jamdar, C. J.

By this appeal filed under Section 5 of the Kerala High Court Act, 1958, the Appellant had challenged the judgment delivered by the learned Single Judge dated 18 October 2024 in W.P.(C) No.33035 of 2024 filed by Respondent Nos.1 and 2 – the Petitioners.

2. The Petitioners are complainants, who have filed a complaint before the Judicial First Class Magistrate, Ponnani, Malappuram. Respondent No.3 is the State of Kerala represented by the Home Secretary, Thiruvananthapuram, Respondent No.4 is the Superintendent of Police, Respondent No.5 is the Additional Police Superintendent, and Respondent No.6 is the Station House Officer of Malappuram.

3. Petitioner No.1 is a housewife and Petitioner No.2 is her close friend. It is the case of Petitioner No.1 that despite filing complaints to the concerned Station House Officer and District Police Chief regarding the rape by the accused, no FIR was registered. Petitioner No.1 filed Exhibit-P5 complaint under Section 173(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) before the Judicial First Class Magistrate Court, Ponnani, on 11 September 2024. The learned Magistrate sought a report from the DIG of Thrissur Range under Section 175(4)(a) of the BNSS on 11 September 2024. At that stage, the Petitioners filed the present Writ Petition on 13 September 2024. The Petitioners prayed for the following reliefs:

(ii) Petitioner No.2 respectfully prays that this Court directs the Respondent Nos. 1 and 3 – State of Kerala represented by Home Secretary and the Additional Police Superintendent, to comply with the directions of the Hon’ble Supreme Court regarding the procedure for recording statements and registering an FIR. Specifically, it was prayed to order the Respondents to:

(a) Register an FIR immediately upon receiving a complaint related to a cognizable offence, in accordance with law and the guidelines established by the Hon’ble Supreme Court;

(b) Summon the witness for statement collection only after the FIR is registered and not before, ensuring due process and preventing any harassment of the witnesses.

(iii) To declare that the immunity provided under Section 175(4) of the BNSS shall not be extended to crimes committed by a public servant that are unrelated to their official duties. Specifically the Court is requested to rule that the protection afforded to public servants does not apply to the acts that constitute criminal offences committed outside the scope of their official functions. This prayer is made to ensure that public servants are held accountable for any criminal acts they commit in their personal capacity without the shield of immunity intended for their official duties.”

The Appellant was not a party to the Writ Petition of Respondent Nos.1 and 2/Writ Petitioners.

4. The Writ Petition came up before the learned Single Judge on 13 September 2024, wherein the learned Single Judge called for a report from the Additional Police Superintendent, Malappuram, regarding what action has been taken in relation to Exhibit-P4 complaint dated 8 September 2024 and why a preliminary enquiry is desired in this case on or before 23 September 2024.

5. By the same order, the learned Single Judge also called for a report from the Judicial First Class Magistrate Court, Ponnani, regarding the stage of C.M.P.No.3288/2024 and the proceedings thereof on or before 23 September 2024. The learned Magistrate, pursuant to the above directions, submitted a report. The learned Single Judge noted the contents of the report in which the learned Magistrate explained that since the Magistrate bona fide believed that a report needed to be called for under Section 175(4)(a) and (b) of the BNSS, it was mandatory that the report was called for. The