“Shocking Failure To Take Action”: Kerala High Court Questions Delay In Probing 2022 Rape Allegations Against Ponnani Police Officers

The Court was hearing a plea of a woman seeking to register an FIR under Section 173(1) of the BNSS against four higher police officials for raping and sexually assaulting her. She had approached the High Court stating that Magistrate, instead of directing to order investigation, called for a report from a superior officer by relying upon Section 175 (4) of the BNSS.

Justice A. Badharudeen questioned the delay in investigation and directed the Magistrate to pass orders for investigation within a period of ten days.

"It is discernible from the records placed by the prosecution that, as per Ext.R3(e), as on 20.8.2022, petitioner No.1 made a specific complaint against the C.I. of Police regarding forceful sexual intercourse. But, no action taken against the C.I., so far. Why there was failure to take action on Ext.R3(e) for a period of 3 years, is shocking. Thereafter, petitioner No.1 raised complaint alleging sexual intercourse by the C.I., Dy.S.P. and S.P."

Background Facts

The petitioner stated that she filed a complaint before the Station House Officer but no FIR was registered. She stated that she sent a compliant vide mail to the Police Superintendent requesting an investigation. It was alleged that the Police Superintendent proceeded with the inquiry without registering an FIR. It is also stated that even the District Police Chief did not consider her request to register an FIR. The petitioner then filed a private complaint before the Judicial First Class Magistrate Court, Ponnani who also did not order an investigation.

The petitioner argues that preliminary inquiry without registration of FIR violates the Apex Court guidelines laid down in Lalitha Kumari v Government Of UP.

Observations

The High Court noted that in Lalita Kumari (supra), the Apex Court stated that Magistrate was not under an obligation to direct the police to register the FIR under Section 156 (3) of the CrPC, as the term 'may' makes it discretionary only.

“Section 156 (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.”

Further, the High Court stated that the Apex Court in XYZ v State of Madhya Pradesh (2022) held that the Magistrate's discretion to direct the police to conduct an investigation under Section 156(3) should be regarded as a duty of the Magistrate.

In the facts of the case, the Court noted that the petitioner lodged a complaint (Ext. P3) with the Station House Officer. It also took note of the fact that she filed a private complain (Ext. P5) before the Magistrate.

The Court observed that the Magistrate passed an order stating that it is of the view that an investigation should be ordered against the accused. It noted that the Magistrate emphasized that since the accused are public servants and compliant is against them during the discharge of their official duties, compliance with Section 175 (4) of the BNSS is mandatory.

Section 175 (4) BNSS reads thus: “Section 175 (4) Any Magistrate empowered under section 210, may, upon receiving a complaint against a public servant arising in course of the discharge of his official duties, order investigation, subject to—(a) receiving a report containing facts and circumstances of the incident from the officer superior to him; and (b) after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.”

Consequently, the Court noted that the Magistrate directed the Deputy Inspector of Police, Thrissur to submit a report in compliance with Section 175 (4) of the BNSS.

The Court noted that Section 175 of BNSS is corresponding to Section 156 of the CrPC which pertains to police officer's power to investigate cognizable cases. The Court however stated that Section 175 (4) of BNSS is a new addition, and there is no provision analogous to that in Section 156 of the CrPC.

The High Court stated that the mandate under Section 175 (4) applies only when a complaint against the public servant arises during the discharge of their official duties. It further stated that the term 'may' in Section 175 (4) makes calling or a report before ordering an investigation discretionary and not mandatory.

“…when a lady alleges sexual molestation by coitus, by a police officer or a public servant, the same could not be held as a complaint against a public servant arising in course of the discharge of his official duties. At the same time, it has to be held that, Section 175(4) of the BNSS used the term 'may' and the legislative intent behind this provision is only discretionary and not mandatory. Therefore, the procedure opted by the learned Magistrate to call for a report containing facts and circumstances of the incident resorting to Section 175(4) (a) of the BNSS, from the officer superior to them as well as the situation led to the incident, so alleged, are not mandatory in the instant case.”

In the facts of the case, the Court stated that allegations against the accused comprises of rape and sexual assault, which cannot be regarded as compliant arising during the course of the discharge of their official duties.

As such, the Court observed that since the Magistrate has decided to order an investigation, it need not pass further orders. The Court thus directed the Magistrate to pass orders within ten days.

Counsel for Petitioners: Advocates Muhammed Firdouz A.V. , M.P.Shameem Ahamed, Libin Varghese, Akhil Philip Manithottiyil, A.H.Sincey

Counsel for Respondents: Special Public Prosecutor P Narayanan

Case Number: WPC 33035/2024

Case Title: XXX v State of Kerala

Citation: 2024 LiveLaw (Ker) 649

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