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Nimmy Johny vs Director General Of Police on 13 November, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941

WP(C).No.22065 OF 2019(G)

PETITIONER:

NIMMY JOHNY,
AGED 30 YEARS
WIFE OF STEEN XAVIER, KURIAPILLY HOUSE, KAITHARAM
P.O., PARAVOOR, PRESENTLY RESIDING AT THAIPARAMBIL
HOUSE, KONGORPPILLY P.O., PIN-683518.

BY ADVS.
SRI.T.P.SAJAN
SRI.M.MOHAMED NAVAZ

RESPONDENTS/COMPLAINANT STATE :

1 DIRECTOR GENERAL OF POLICE,
KERALA, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM,
PIN-695010.

2 STATE OF KERALA,
SUB INSPECTOR OF POLICE, NORTH PARAVOOR POLICE
STATION, PARAVOOR, ERNAKULAM, REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-
682031.

3 STEEN XAVIER,
SON OF XAVIER, KURIAPILLY HOUSE, KANDAKARNANVELI,
KOTTUVALLY P.O., NORTH PARAVOOR, ERNAKULAM, PIN-
683513.

4 OUSEPH XAVIER,
KURIAPILLY HOUSE, KANDAKARNANVELI, KOTTUVALLY P.O.,
NORTH PARAVOOR, PIN-683513.

5 JESSY XAVIER,
WIFE OF OUSEPH XAVIER, KURIAPILLY HOUSE,
KANDAKARNANVELI, KOTTUVALLY P.O., NORTH PARAVOOR,
PIN-683513.

6 STIPHIA,
DAUGHTER OF OUSEPH XAVIER, WIFE OF JOBY, MANAKKAL
HOUSE, KAPPELAPADY STOP, GOTHURUTH P.O., PARAVOOR,
PIN-683513.
WP(C).No.22065 OF 2019(G) 2

7 JOBY,
HUSBAND OF STIPHIA, MANAKKAL HOUSE, KAPPELAPADY
STOP, GOTHURUTH P.O., PARAVOOR, PIN-683513.

OTHER PRESENT:

SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.22065 OF 2019(G) 3

ALEXANDER THOMAS, J.
—————————————–
W.P.(C.)No. 22065 of 2019
—————————————–
Dated this the 13th day of November, 2019

JUDGMENT

The factual case projected in this W.P.(C.) filed under SectionArticle 226 of

the Constitution of India is as follows:

“The petitioner filed Ext.P1 complaint before the North Paravoor Police Station alleging
offence under Section 120B, 375, 352, 354, 506, 498A and Sec 511 r/w Sec.34 of he SectionIPC.
Based on the complaint Ext.P2 FIR was lodged by the police under Sec.498A and Sec. 34
SectionIPC. So the petitioner filed a complaint before Superintendent Police Aluva to conduct a
proper investigation in Ext.P1 complaint. Thereafter the petitioner filed CMP 647/2019
before the First Class Judicial Magistrate Court North Paravoor, protesting the action of
the Police in filing FIR under Sec.498A and Sec.34 alone and requesting to direct the police
to conduct a proper investigation into Ext.P1 complaint. The petitioner also filed Ext.P7
complaint before the first respondent seeking further investigation on Ext.P1 complaint.
During the pendency of his Ext.P3, P4 and P7, the investigating agency filed Ext.P5 final
report and thereupon the JFCM I North Paravoor closed CMP No.647/2019 as per Ext.P6
order. The petitioner is highly aggrieved by the inaction of the investigating agency and the
higher Police Officers and also by ext.P6 order.

It is submitted that Ext.P1 complaint reveals the ingredients of offences under Secs.120B,
375, 352, 354, 506, 498A and Sec.511 r/w Sec.34 of the SectionIPC. The petitioner who is a woman
has suffered cruelty and assault by the respondent’s No.3 to 7. If the complaint of the
petitioner is not properly investigated and offences are not charged against the respondents
3 to 7 for their criminal action and assaults meted out to the petitioner, there will be failure
of justice. The local police have not conducted proper investigation in the matter. The
investigation in the case has been completely tardy, unsatisfactory and ill-motivated to get
the accused absolved. There is no proper and effective investigation conducted in this case
and hence it was fit case for ordering fresh investigation or re-investigation or de novo
investigation. It is beyond dispute that in such circumstances, a fresh investigation by any
other agency is the only solution to ensure a just and fair investigation and trial. Unless
proper fresh investigation is conducted in this case travesty of justice will occur.”

2. It is now also pointed out that as a matter of fact, Ext.P7

representation / petition dated 26.06.2019 has been filed by the petitioner

not before the 1st respondent, Director General of Police, but before the 8 th

respondent Inspector General of Police, Thiruvananthapuram and that the

said petition is pending before R8 etc. It is pointed out by Shri.T.P.Sajan,

learned counsel appearing for the petitioner that as of now only the
WP(C).No.22065 OF 2019(G) 4

impugned final report/ charge sheet has been filed before the Judicial First

Class Magistrate Court-I, Paravur and that as of now, the said court has not

framed charges in this case. It is in the light of these averments and

findings that the petitioner has filed the instant W.P.(C.) with the following

prayers :

“i. Issue any appropriate orders or direction directing the first respondent to conduct
fresh investigation or reinvestigation or de novo investigation of the case with respect to the
incident on which crime No.423/2019 North Paravoor Police Station (C.C.No.287/19 on the
files of Judicial First Class Magistrate-I, North Paravoor) was registered, by a different
agency other than local police.

ii. Grant such other and further reliefs, as this Hon’ble Court may deem fit and propre
under the given facts and circumstances of this case.”

3. Heard Sri.T.P.Sajan, learned counsel appearing for the

petitioner and Sri. Saigi Jacob Palatty, learned Prosecutor appearing for the

official respondents 1, 2 and 8. In the nature of the order proposed to pass

in this petition, notices to R3 to R7 will stand dispensed with.

4. After hearing both sides and after taking into consideration the

facts of this case as disclosed in the pleadings and materials on record, the

following orders and directions are passed :

The petitioner’s counsel submitted that the petitioner has been advised to file
a detailed additional representation/petition before the 8 th respondent
deleting and highlighting the various aspects stated in Ext.P7 petition and that
such a fresh petition will be filed by the petitioner before R8 within 10 days
along with the certified copy of this order. On receipt of the said additional
report/petition, 8th respondent will take up the matters in Ext.P7 petition as
well as the additional representation for consideration and will ensure that
the CD files in relation to Ext.P2, Crime No.423/2019 of North Paravoor
Police Station, Ernakulam District is called for and the same is got examined
by a senior police officer not below the rank of Dy. Superintendent of
Police/Asst. Commissioner of Police, who in turn will make a comprehensive
WP(C).No.22065 OF 2019(G) 5

report as to the nature of the investigation so far conducted and as to whether
the investigation has been proceeded in the right and proper lines and
whether there are any serious deficiencies in the said investigation and the
report in that regard should be filed by the said officer in the rank of
Dy.Superintendent of Police/Asst.Commissioner of Police to R8, Inspector
General of Police, without much delay. Thereafter, R8, Inspector General of
Police will consider the abovesaid pleas made by the petitioner in Ext.P7
petition as well as the additional report and also taking into account the
matters brought out in the said report submitted by the abovesaid police
officer and then will take a considerable decision on the plea of the petitioner
for conduct of the further investigation of this case. An appropriate decision in
that regard shall be taken by R8, without much delay, preferably within a
period of 3 months. In case, R8 takes a decision to order further investigation,
then it shall be ensured that the investigating officer will file a formal
application before the trial court concerned so as to secure the court’s formal
permission as contemplated in Sec.173(8) of the SectionCr.P.C. for the conduct of any
such further investigation.

5. It is now well settled by the recent decision of the 3 judges

bench of the Apex Court in the judgment dated 16.10.2019 in Crl.Appeal

Nos. 478 and 479 of 2019 [2019 (5) KHC 352], that the trial court

concerned will have the jurisdiction to consider and order for further

investigation not only at the pre-cognizance stage, but also at the post-

cognizance stage, but before the actual framing of the charges by the said

court etc.

6. In that view of the matter, it is only to be held that impugned

Ext.P6 order passed by the Judicial First Class Magistrate Court-I, North

Paravur on 20.06.2019 on CMP No. 647/2019 in C.C.No.287/2019 that as
WP(C).No.22065 OF 2019(G) 6

the final report has already been filed on 19.06.2019, there is no scope for

the plea for further investigation etc. is illegal and ultravires and the same

will stand set aside. The learned Magistrate will ensure that the further

proceedings in C.C.No.287/2019 will stand deferred until the investigating

officer gives necessary intimation to the said court regarding the outcome

of the decision to be taken by R8, Inspector General of Police as stated

hereinabove.

7. Registry will forward a copy of this order to the Judicial First

Class Magistrate Court-I, Paravur who is dealing with C.C.No.287/2019 for

necessary information.

With these observations and directions, the above W.P.(C.) will stand

disposed of.

sd/-

ALEXANDER THOMAS,
JUDGE

SKS
WP(C).No.22065 OF 2019(G) 7

APPENDIX
PETITIONER’S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE COMPLAINT FILED BY THE
PETITIONER BEFORE THE STATION HOUSE
OFFICER, PARAVUR POLICE STATION DATED
25.3.2019.

EXHIBIT P1 A A TRUE COPY OF THE REGISTRATION CARD ALONG
WITH POLICE INTIMATION AND ACCIDENT
REGISTER CUM WOUND REGISTER.

EXHIBIT P2 A TRUE COPY OF THE FIR NO.0423/2009
SUBMITTED BY SUB INSPECTOR OF POLICE,
PARAVUR POLICE STATION DATED 5.4.2019.

EXHIBIT P3 A TRUE COPY OF THE COMPLAINT FILED BY THE
PETITIONER BEFORE THE SUPERINTENDENT OF
POLICE, ALUVA DATED 29.3.2019.

EXHIBIT P4 A TRUE COPY OF THE CRL.M.P.NO.647/2019
DATED 10.4.2019 FILED BY THE PETITIONER
BEFORE THE JFCM 1 COURT, PARAVOOR.

EXHIBIT P5 A TRUE COPY OF THE FINAL REPORT IN CRIME
NO.423/19 SUBMITTED BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE I COURT, PARAVUR
DATED 15.5.2019.

EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 20.6.2019 IN
CRL.M.P.NO.647/2019 OF JUDICIAL FIRST CLASS
MAGISTRATE I COURT, PARAVUR.

EXHIBIT P7 A TRUE COPY OF THE APPLICATION FILED BY THE
PETITIONER BEFORE THE INSPECTOR GENERAL OF
POLICE DATED 26.6.2019.

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