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. BackgroundAs 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...

Serious Irregularities: Kerala HC Quashes Order Directing Magistrate To Decide On Probe Into Rape Allegations Against Ponnani Police Officers

Manju Elsa Isac

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