Kerala High Court Directs Probe Against Former DGP For Allegedly Disclosing Identity Of Sooryanelli Rape Victim In His Book 'Nirbhayam'

Section 228-A IPC relates to disclosing the victim's identity of certain offences under Section 376 IPC etc. and is punishable by up to two years imprisonment and a fine.

Justice A. Badharudeen quashed the order issued by the police commissioner, who said that there is nothing available to register a crime against Siby Mathews.

“On reading the preliminary enquiry final report and the legal opinion, I have no hesitation to say that the finding in the final report is an attempt to save the former higher police official from the clutches of prosecution. As per the preliminary enquiry final report and the legal opinion given by the Director General of Prosecution, both of them found that the details were sufficient enough to identify the girl as “peedippikkapetta penkutti”. When analysing the Malayalam term “peedippikkapetta penkutti” the same means a victim of 'sexual assault' or 'molestation' or 'rape'. So the word would carry the offences dealt in Section 228A of IPC. Apart from referring the girl as “peedippikkapetta penkutti”, her identity as a 'rape victim' is discernible from the book itself otherwise”,stated the Court.

The petitioner alleges that details of names, occupations, addresses and the details of the parents of the Sooryanelli rape victim were given in the book even though the name of the victim was not expressly disclosed. He has approached the Court against the order issued by the Police Commissioner that there is no material for registering a case under Section 228A of IPC against Siby Mathews. It was argued that the details in the book disclose the commission of a cognizable offence warranting registration of an FIR for disclosing the identity of a rape victim.

The petitioner placed reliance on the landmark ruling in Lalita Kumari v. Government of UP & Ors., (2013), wherein it was held that upon receipt of information by a police officer in charge of a police station disclosing a cognizable offence, he must register an FIR under Section 154 of CrPC. If the information does not disclose commission of cognizable offence, then preliminary inquiry has to be conducted within a time-bound manner to assess whether there is a commission of a cognizable offence or not. Relying upon Nipun Saxeena and Another v. Union of India and Others (2019), it was argued that facts cannot be published that could disclose the identity and names of rape victims and victims under the POCSO Act.

The Court thus considered whether a cognizable offence was made out under Section 228A of IPC warranting registration of FIR against Siby Mathews. Perusing the details given in the book, the Court stated that details of the school of the victim, details of parents, place of residing were given without expressly mentioning name of the victim. The Court found that the details mentioned in the book were sufficient to disclose the identity of the rape victim.

“Summarising the issue involved in this case, with reference to the recitals in Ext.P2, no prudent man would say that no offence under Section 228A of IPC is made out from the materials. Contra finding recorded by the Investigating Officer who conducted the preliminary enquiry is unsustainable in law. Therefore, this case would require investigation by registering FIR to find out the allegations of Exts.P3 and P4 in tune with the mandate of Lalitha Kumari's case (supra)”, added the Court.

The Court stated that if police do not register an FIR, the petitioner has the alternative remedy to approach the Magistrate by filing a private complaint. It stated that the Constitutional Court has the power to order an investigation even when there is an alternative remedy available since the author of the book is a former DGP of the State.

As such, the Court disposed the case and ordered thus: “There shall a direction to the 3rd respondent Station House Officer, Mannanthala Police Station to consider Ext.P3, where there is disclosure of a cognizable offence and to proceed forthwith following the ratio in Lalitha Kumari's Case (supra) at any rate, within a period of seven days from the date of receipt of a copy of this judgment.”

Counsel for Petitioner: Advocates Nandagopal S Kurup, Abhiram T K

Counsel for Respondents: Government Pleader Nima Jacob, Advocate M Baiju Noel

Citation: 2024 LiveLaw (Ker) 354

Case Title: K K Joshwa v State of Kerala

Case Number: WP(CRL.) NO. 575 OF 2023

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