Kerala High Court questions delay in probe into 2022 rape allegations against Ponnani police officers

The court was hearing the plea of ​​a woman seeking to register an FIR under section 173 (1) of the BNSS against four senior police officials for raping and sexually assaulting her. She had approached the High Court stating that the magistrate, instead of ordering an investigation, had sought a report from a superior officer relying on section 175 (4) of the BNSS.

Justice A. Badharudeen questioned the delay in the investigation and directed the magistrate to issue orders for investigation within ten days.

“It appears from the records filed by the prosecution that as per Ext.R3(e), on 20.8.2022, petitioner no.1 filed a specific complaint against the Police IC regarding forced sexual intercourse. But no action taken The reason why no action was taken against Ext.R3(e) for a period of 3 years is shocking. Thereafter, petitioner No.1 filed a complaint. alleging sexual intercourse on the part of the IC, Dy.SP and SP.

Basic facts

The petitioner said she lodged a complaint with the station in-charge, but no FIR was registered. She said she sent a compliant video letter to the police commissioner requesting an investigation. It was alleged that the police commissioner had carried out the investigation without registering an FIR. It is also stated that even the district police chief did not consider his request for registering an FIR. The petitioner then filed a private complaint before the Ponnani Magistrate’s Court, which also did not order an investigation.

The petitioner argues that preliminary investigation without registration of FIR violates the directions of the Supreme Court laid down in the case of Lalitha Kumari v. Government Of UP.

Comments

The High Court noted that in Lalita Kumari’s case (supra), the Supreme Court held that the Magistrate was not obliged 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 inquiry as mentioned above.”

Further, the High Court said that the Supreme Court in XYZ v. State of Madhya Pradesh (2022) held that the discretion of the magistrate to direct the police to conduct an investigation under the Article 156 (3) should be considered as an obligation of the magistrate.

In the facts of the case, the Court noted that the applicant had filed a complaint (item P3) with the police station. He also took note of the fact that she filed a private complaint (Ext. P5) with the Magistrate.

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

Article 175 (4) BNSS reads as follows: “Section 175 (4) Any magistrate empowered under section 210 may, on receipt of a complaint against a public servant arising out of the exercise of his official functions, order an investigation, subject to: (a) receiving a report containing the facts and circumstances. of the incident by the officer superior to him; and (b) after consideration of the statements made by the official as to the situation which led to the incident so alleged.

Therefore, the Court noted that the Magistrate directed the Deputy Inspector of Police, Thrissur to submit a report under Section 175(4) of the BNSS.

The Court noted that Section 175 of the BNSS corresponds to Section 156 of the CrPC which concerns the power of police officers to investigate identifiable cases. The Court, however, said that Section 175(4) of the BNSS is a new addition and there is no provision analogous to that of Section 156 of the CrPC.

The High Court said that the mandate under section 175(4) applies only when a complaint against a public servant is made in the exercise of his official duties. He further said that the word “may” in Section 175(4) makes the appeal or submission of a report before ordering an investigation discretionary and not mandatory.

“…when a lady alleges sexual assault by coitus, by a police officer or a civil servant, this cannot be considered a complaint against a civil servant arising from the exercise of his official duties. At the same time, it must be considered that Article 175(4) of the BNSS uses the term “may” and that the legislative intention behind this provision is only discretionary and not mandatory. Therefore, the procedure chosen by the learned Magistrate is to request from the senior officer superior to him a report containing the facts and circumstances of the incident, by resorting to Section 175 (4) (a) of the BNSS , as well as the situation that led to the incident. , thus alleged, are not obligatory in the present case.

In the facts of the case, the Court said that the allegations against the accused include rape and sexual assault, which cannot be considered compliant, occurring in the course of discharge of their official duties.

As such, the Court observed that since the Magistrate has decided to order an investigation, there is no need for him to pass any further orders. The Court therefore directed the Magistrate to pass orders within ten days.

Advisors to the petitioners: Lawyers Muhammed Firdouz AV, MP Shameem Ahamed, Libin Varghese, Akhil Philip Manithottiyil, AHSincey

Counsel for the respondents: Special Public Prosecutor P Narayanan

File number: WPC 33035/2024

Case Title: XXX v State of Kerala

Citation: 2024 LiveLaw (Ker) 649

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