Partly allowed

Dr. Reji Nicholas v. State of Kerala

Kerala HC7 Dec 2020WA/1599/2020

Case brief

AI extract

What is this about?

Writ appeal challenging Single Judge order dismissing writ petition seeking transfer of investigation from Sub Inspector to Crime Branch. Court declined transfer but clarified that observing the disputed financial issue as civil impedes ongoing criminal investigation under IPC, and ordered fresh investigation.

What did the court decide?

Writ appeal partly allowed; observation that dispute is civil nature is struck down as impeding investigation; respondent directed to conduct proper prompt investigation.

Dr. Reji Nicholas Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2020)

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WA.No.1599 OF 2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942

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W.A.No.1599 OF 2020

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APPELLANT/PETITIONER:

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DR. REJI NICHOLAS, AGED 46 YEARS, S/O P.R.NICHOLAS, PROMOTER, MEDISPROUTS INDIA PVT. LTD. PANAMPILLY NAGAR, KOCHI, PIN - 682 036, RESIDING AT PULLIKKOTTIL HOUSE, NEAR SAKTHAN THAMPURAN BUS STAND, THRISSUR DISTRICT, PIN 682 001.

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BY ADV. SMT.JOHN NELLIMALA SARAI

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVT., SECRETARIAT, THIRUVANANTHAPURAM 695 001

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2 THE DIRECTOR GENERAL OF POLICE, VAZHUTHACAUD, THIRUVANANTHAPURAM,PIN 695 010

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3 THE COMMISSIONER OF POLICE, KOCHI CITY, ERNAKULAM, PIN 682 011

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4 SUB INSPECTOR OF POLICE, ERNAKULAM SOUTH POLICE STATION, ERNAKULAM, PIN 682 015.

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5 SUPERINTENDENT OF POLICE, CRIME BRANCH, ERNAKULAM 682 032

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6 AJAY BANSAL, 3RD FLOOR, PANCHSHEEL PARK, NEW DELHI 110 017

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WA.No.1599 OF 2020

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7 ROBY BOSE, AMPANATTU VILLAGE, VARAMPURA, VENMONY P O, CHENGANNUR,ALAPPUZHA, KERALA 689 509

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8 DEEPAK CHOUDHARY, A2/25, SAFDARJUNG ENCLAVE, BLOCK A2, SAFDARJUNG ENCLAVE, NEW DELHI 110 029

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9 DR.SUNIL KUMAR, 4/1, LAVELLE JUNCTION, WALTON ROAD, ABOVE CAFE COFFEE DAY, BENGALURU, KARNATAKA 560 001

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10 BIBINMOHAN, KANIVAMKUDIYIL, NEDUMATTAM, VANDAMATTAM P O, THODUPUZHA, IDUKKI 685 582 SRI.TEK CHAND SR.GOVT. PLEADER SRI.P.SANJAY FOR R6

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA.No.1599 OF 2020

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JUDGMENT

Dated this the 7^th day of December 2020

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S.MANIKUMAR, C.J.

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Instant writ appeal is filed challenging the judgment dated 21.10.2020 in W.P.(C)No.19476 of 2020. Appellant herein is the writ petitioner and defacto complainant/informant, in Crime No.107/2020 of Ernakulam Town South Police Station, Thevara, for the offences committed by the accused under Sections 406, 511 of 420, 120B, read with Section 34 of IPC and Section 120(o) of Kerala Police Act.

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Writ petition was filed seeking entrustment of the investigation in Crime No.107/2020 of Ernakulam Town South Police Station, Ernakulam District to the Crime Branch wing of Police, Ernakulam. Learned Single Judge dismissed W.P.(C)No.19476 of 2020 by the impugned judgment dated 21.10.2020, which reads as under:

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“A crime was registered against respondents 6 to 10 based on a complaint made by the franchisee under them in connection with a business of transplantation of hair, especially to bald headed people, for which they entered into a contract in the year 2012. Subsequently it was renewed in the year 2014. It was again renewed in the year 2017 for the period up to 2025. Crime was registered against the Managing Director of the company who supplied the equipment for the transplantation of hair. Admittedly the accused company will conduct hair transplantation through their qualified doctors at the clinic of defacto complainant. In the month of December 2018, transplantation of hair was conducted on

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WA.No.1599 OF 2020

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28 persons, out of which 14 sustained some infection and it was reported. On that account they had received an amount of Rs.26,00,000/(Rupees twenty six lakhs only) from the accused. Arbitration proceedings are pending in Delhi with respect to the amount due from the respective persons. The crime was registered on the basis of information furnished by the franchisee, who is a Homoeo Doctor by profession. None of the injured approached the police or the Magistrate with any complaints and no crime was so far registered at their instance. Admittedly, no physical injury sustained by the first informant, the petitioner herein. The dispute is of civil nature and it will not stand at the instance of the franchisee. Further, the prayer of franchisee to hand over the investigation to the Crime Branch cannot be sustained as he has no locus standi to maintain such an application. The legal position would be different if it is by any of the victims who suffered injury. It is also submitted that the unhygienic condition maintained by the petitioner is also a reason for infection. In any view of the matter, the franchisee cannot maintain this kind of application, hence dismissed.”

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Being aggrieved by the judgment of the writ court, appellant has approached this court by filing the instant writ appeal, inter alia, contending that the observation of the learned Single Judge that the dispute is of civil nature and it will not stand at the instance of the franchisee, is contrary to the facts on record and that the same is unjustifiable. According to the learned counsel for the appellant, finding of the learned Single Judge that the dispute is civil in nature, even before a final report is filed by the prosecution, is premature.

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WA.No.1599 OF 2020

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Heard learned counsel for the parties and perused the materials available on record.

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Considering the entire facts and circustances of the case, we are not inlcined to interefere with the matter, insofar as entrustment of the matter to Crime Branch Wing of the Police, Ernakulam, is concerned. The alleged delay and the manner in which, investigation is being done, by the Sub Inspector of Police, South Police Station, Ernakulam, (respondent No.4) cannot be a ground to change the investigation to a special unit. These matters can always be brought to the notice of the higher authorities, who are duty bound to look into the same. As such, we do not find that the appellant has made any complaint to the higher authorities, nor approached the High Court under Section 482 of the Code of Criminal Procedure. However, going through the impugned judgment, we find that the learned Single Judge, while dismissing the writ petition has made an observation that the dispute is of the civil nature and the same will not stand at the instance of the franchisee. While investigation is pending on the file of the fourth respondent (Sub Inspector of Police, Ernakulam South Police Station, Ernakulam), we are of the view that the said observation stated supra would impede the process of investigation. Therefore, we make it clear that the Sub Inspector of Police, Ernakulam (respondent No.4), and the investigating officer in Crime No.107/2020 of Ernakulam Town South Police Station, Ernakulam District shall conduct proper and prompt investigation untrammelled by any of

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WA.No.1599 OF 2020

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the observations, made in W.P.(C)No.19476 of 2020 dated 21.10.2020, as regards

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the nature of the dispute involved and file a report without any further delay in

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acordance with law.

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Writ appeal is partly allowed as indicated above.

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SD/S.MANIKUMAR CHIEF JUSTICE

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SD/SHAJI P. CHALY JUDGE

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jes

Dr. Reji Nicholas v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr. Reji Nicholas v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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