Serious Irregularities: Kerala HC Quashes Order Directing Magistrate To Decide On Probe Into Rape Allegations Against Ponnani Police Officers
While hearing a case where a woman had alleged that she was raped by police officials in Ponnani with the police allegedly refusing to register an FIR, the Kerala High Court set aside the judgment of the Single Judge which had directed the Magistrate to pass order regarding investigation, after noting that it suffered from "serious procedural irregularity".
Observing the failure on the part of the police to take action for three years was "shocking", single judge in its October 18 order had questioned the delay in ordering an investigation into matter.
Noting that since the Magistrate was of the "bona fide view that an investigation should be ordered in the complaint", the single judge had not passed an order for investigation and had directed the "Magistrate to pass order therein, as per law" within ten days.
Additionally the single judge–who was hearing the complainant's petition–had also held that a preliminary report under S. 175 (4) of BNSS is not required in the case; against this appellant official had approached the division bench.
The provision states that when a complaint is received against a public servant in course of his official duty, the Magistrate will direct an investigation only after receiving a report from an officer superior to the accused officer and after considering the assertions of the latter.
Setting aside the single judge's order the division bench of Division Bench of Chief Justice Nitin Jamdar and Justice S. Manu in its order said, "The reliefs sought in the Petition have nothing to do with the proceedings pending before the learned Magistrate and, in fact, ExhibitP6, the order passed by the learned Magistrate on 11 September 2024 in C.M.P. No.3288/2024 calling for a report, was not even the subject matter of the petition. If the learned Magistrate found that the matter needed to be proceeded further, the Magistrate would have taken steps as per the subsequent provision under the BNSS, in respect of an investigation. If the learned Magistrate found that the complaint should be dismissed, an order would have been passed under Section 226 of the BNSS. Section 223(2) is a stage where the Magistrate will not take cognisance and this stage had not arisen in the present case. If any erroneous order is passed by the learned Magistrate, it is always subject to challenge in appropriate proceedings. The impugned judgment thus suffers from serious procedural irregularity and is required to be set aside".
The court further found merit in the appellant official's contention that the petitioners (before the single judge) had directly approached the Court in a writ petition under Article 226 of the Constitution of India. It noted that since the petitioners had already approached the Magistrate, and the complaint was pending, and there was no challenge to any of the orders of the Magistrate, the "Magistrate should have been allowed to proceed without any interference".
"The legal issue should also have been first decided by the learned Magistrate, whose order was not under challenge. Afterwards, the proceedings would arise from taking cognisance or dismissing the complaint. At this stage, it is unwarranted to step in, issue directions, and declare the position of law when the complaint was pending before the learned Magistrate," it said.
Background
As per the complainant (respondent), she filed a complaint before Station House Officer, Ponnani under Section 173(1) of the BNSS alleging that she was raped by certain police officers. However, the police refused to register an FIR. Therefore, she filed a private complaint before the Judicial First Class Magistrate, Ponnani.
The Magistrate on receiving the complaint sought a report from DIG, Thrissur Range under Section 175(4) BNSS. Section 175(4) says that when a complaint is received against a public servant arising in course of his official duties, the Magistrate shall order an investigation after only receiving a report from the officer superior to the alleged officer and after considering the assertions made by the accused officer.
At this point, the complainant filed a Writ petition before the High Court seeking a direction to the police to register an FIR. The plea further prayed that the court rules 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.
The police officers against whom the complaint was made was not made a party to the Writ Petition. She approached the High Court seeking a direction to file an FIR and a declaration that the immunity under Section 175(4) of BNSS is not applicable in crimes committed by public servant that are unrelated to their official duties.
When the writ petition came before the Single Judge, the Court called for a report from the Additional Police Superintendent regarding what action has been taken in relation with the complaint and why a preliminary report is desired in this case. The Court also sought a report from the Magistrate regarding the stage of the case and proceedings thereof. The Magistrate in his report said that he asked for Section 175(4) BNSS report as he believed the said report was necessary in the case.
The Single Judge while disposing the petition observed that the Magistrate in his report has mentioned that in view of the decision in XYZ v State of Madhya Pradesh (2022) that an investigation should be ordered. The Magistrate however added that compliance with Section 175(4) of BNSS was mandatory and that is why he called for a report from the Deputy Inspector General.
The Single Judge however declared that a 175(4) report was not mandatory in the case and asked the Magistrate to pass an order on the investigation within 10 days after considering the law laid down by the High Court. The writ petition was disposed of. On October 24, the Magistrate in the light of the decision of the Single Bench ordered an investigation into the case.
The Appellant who is one of the accused in the rape case challenged the decision of the Single Judge before the Division Bench of the High Court.
Findings
The division bench said that it was not necessary to call for a report from the Magistrate to explain a judicial order in the first place.
"Though the learned Senior Advocate for the Petitioners has sought to contend that the order dated 13 September 2024 does not call for an explanation, the order shows that a report regarding the stage and the proceedings was called for.The stage was already known. The order was already part of the record (though not challenged)," the bench said.
It further observed that there was no disapproval in the October 18 order that the Magistrate had needlessly justified the judicial order by submitting a report. On the other hand, the bench said, the Magistrate's report explaining the judicial order was specifically looked into, commented on and criticised.
This, the bench said, "could have been avoided" and the procedure placed the Magistrate in a "piquant position".
The Complainant argued before the Division Bench that the writ appeal is no more relevant, as the Magistrate has already directed the police to conduct the investigation. The Complainant said that the said order is an independent order of the Magistrate and the Single Judge has not given any specific direction as to registration of the case.
Taking note of the contentions the court noted that a question arises that whether the Magistrate can order an investigation under Section 175(3) of the BNSS, without giving the accused an opportunity of being heard, and also, whether the Magistrate is obliged under Section 175(3) to consider submissions made by the police for not registering an FIR before ordering an investigation.
"Therefore, the issue requires detailed deliberation. There is no detailed discussion in the impugned judgment about this legal issue," the high court said.
It also observed that Section 175(4) of the BNSS is "different" from Section 156 (Police Officer's power to investigate cognisable case) Cr.P.C. , and no direct decision of the high court or the Supreme Court is referred to in the single judge's judgment.
It also said that a serious issue of interpretation of the provisions of Section 175(4) of the BNSS has also arisen and the single judge's judgment had not gone into the intricacies of the interpretation, and had referred to a decision "which has no direct relevance".
The Court observed that the Magistrate calling a report from the superior officer was criticized in the order, he was directed to submit a report to inform the stage of the case, the report was looked into and the Magistrate was asked to pass on order within 10 days on the light of the judgment of the Court. The Court held that it cannot be said that the Magistrate has taken an “independent view of the matter.”
The Court while saying that though it understands the seriousness of the allegation, the procedure adopted is a matter of concern.
“As we have indicated earlier, it is more of a matter of concern regarding the procedure adopted that the merits of the matter. We are aware of the seriousness of the allegations made by the Petitioners in their complaint, however, this Appeal raised broader issues that relate to the exercise of independent jurisdiction by the Magistrate.”
Allowing the appeal, the division bench quashed the October 18 order of the single judge as well as the October 24 order of the Magistrate ordering investigation. It however said that the proceedings in the matter before the Magistrate be taken to its logical conclusion. It also said that on the facts as well as interpretation of Section 175(4) BNSS the Magistrate will decide it on its own merit without being influenced by the observations made by the Single Judge or Division Bench.
Case Title: Vinod Valiyatoor v XXX and Others
Counsel for the Petitioners: Advocates S. Sreekumar (Sr.), N. M. Madhu, C. S. Rajani
Counsel for Respondents: Advocates A. Kumar (Sr.), P. Narayanan
Case No: WP(C) 1712/ 2024
Citation: 2024 LiveLaw (Ker) 720