Partly allowed

Gopakumar B. v. Binobi

Kerala HC1 Dec 2021WA/1543/2021

Case brief

AI extract

What is this about?

The High Court allowed the writ appeal filed by an Assistant Commissioner of Police, setting aside the ordering officer's direction to initiate prosecution under the SC/ST Act. The court directed further examination of prima facie evidence of offences before proceeding.

What did the court decide?

Setting aside the direction to prosecute; directing the DGP to examine prima facie materials of offences under the Act, 1989 within one month.

Gopakumar B. Vs Binobi — Pension and Retirement Benefits | Kerala HC (2021)

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W.A. No. 1543/2021

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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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WEDNESDAY, THE 1^ST DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943

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WA NO. 1543 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 23686/2019 OF HIGH COURT OF KERALA

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APPELLANT/4th RESPONDENT IN W.P.(C):

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GOPAKUMAR B.

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AGED 46 YEARS

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S/O.BALAKRISHNA PILLAI G., FORMER CIRCLE INSPECTOR OF POLICE AND SHO, CHANGANASSERY POLICE STATION, CHANGANASSERY P.O., KOTTAYAM - 686 101, AT PRESENT WORKING AS THE ASSISTANT COMMISSIONER OF POLICE, CHATHANNUR, KOLLAM, RESIDING AT GOPASADANAM, AITHOTTUVA, WEST KALLADA P.O., KOLLAM - 691 500.

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BY ADVS. P.B.SAHASRANAMAN T.S.HARIKUMAR

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RESPONDENTS/PETITIONER& RESPONDENTS 1 TO 3, 5 &6 IN W.P.(C):

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1 BINOBI

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AGED 31 YEARS

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S/O.OMANAKUTTAN, PUTHENCHIRA HOUSE, VELIYANAD P.O., ALAPPUZHA - 689 590.

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2 THE DIRECTOR GENERAL OF POLICE POLICE HEADQUARTERS, VAZHUTHAKAD P.O., THIRUVANANTHAPURAM - 695 014.

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3 THE SUPERINTENDENT OF POLICE THIRUNAKKARA P.O., KOTTAYAM - 686 001.

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4 THE DEPUTY SUPERINTENDENT OF POLICE CHANGANASSERY, KOTTAYAM - 686 101.

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5 SURESH K.G.

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W.A. No. 1543/2021

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ASI, CHANGANASSERY POLICE STATION, CHANGANASSERY P.O., KOTTAYAM - 686 101.

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6 RAJESH KUMAR C.R. SUB INSPECTOR OF POLICE, CHANGANASSERY POLICE STATION, CHANGANASSERY P.O., KOTTAYAM - 686 101.

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R2 TO R4 BY SRI. TEK CHAND SR GP, R1 BY SRI.SHABU SREEDHARAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No. 1543/2021

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Dated this the 1^st day of December, 2021.

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JUDGMENT

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S. MANIKUMAR,CJ.

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Being aggrieved by the directions issued by this Court in the judgment dated 19^th September, 2019 in W.P.(C) No. 23686 of 2019 directing the Director General of Police, Thiruvananthapuram and the Superintendent of Police, Kottayam, respondents 1 and 2 in the writ petition, to initiate criminal action against respondents 4 and 6 therein as contemplated under Section 4 of the SC/ST (POA) Act, 1989 ('Act, 1989' for short), after concluding the administrative enquiry already initiated by them departmentally, so as to prosecute them, instant writ appeal is filed.

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Before the writ court, the first respondent/writ petitioner

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sought for the following reliefs:

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1. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 & 2 to conduct an administrative enquiry so as to book the respondents 4 to 6 for the offences committed by them u/s 4(1) r/w section 4(2)(a), (b), (c) & (d) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act in connection with crime No.1782/2019 of Changanassery Police Station.

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1. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3 rd respondent to conduct the investigation in Crime No.1782/2019 of Changanassery Police Station, Kottayam

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W.A. No. 1543/2021

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District effectively.

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The facts leading to the writ petition are as follows:

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The petitioner, a member of the Scheduled Caste belonging to Hindu Pulaya community, is a driver by profession. On 19.5.2019, at 9.00 pm. he along with two others reached Contour resort at Changanassery for purchasing a parcel from the restaurant there. He parked the car at the parking area and while proceeding to the restaurant, a gang of people came near him, abused him by calling his caste name and also uttered obscene words at him. They threatened to kill him and brutally assaulted him using weapons. He sustained severe injuries, including fracture of his nasal bone and was rushed to Government Hospital, Changanassery and from there to Medical College Hospital, Kottayam for treatment.

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The petitioner came to know that one Mr.Jishnu, who was having ill will against him for having resisted use of ganja alongwith his friends at the Boat jetty near his house, is behind the incident. The incident alleged was reported by him to Changanassery Police from the hospital itself, but the former did not take care even to record his statement and to register a crime. After getting discharged from the hospital, the petitioner preferred Ext. P1 complaint dated 21.5.2019 before the Deputy Superintendent of Police, Changanassery, Kottayam, the 4^th respondent. The 4^th respondent refused neither to entertain the complaint nor to issue a receipt for the complaint. The grievance of

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the writ petitioner was that even though he approached the 4^th respondent with requests to take appropriate action, the same does not bear any fruit.

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Thereafter, Ext.P2 complaint was also preferred by him on 17.6.2019 before the Director General of Police, Vazhuthakad P.O., Thiruvananthapuram, the 2^nd respondent, seeking to register a crime and to investigate the same. Despite the specific direction issued by the 2^nd respondent to register a case and to investigate, it was not acted upon by the 4^th respondent properly. Therefore, Exts. P3 and P4 complaints were preferred before the 4^th and 5^th respondents respectively; but, the same were also not considered.

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Thereafter, the appellant/4^th respondent has been transferred from Changanassery and in his place a new Station House Officer assumed charge. The petitioner approached and explained to him the details of the incident. The Station House Officer directed the 6^th respondent to record the statement of the petitioner and to register a crime. The petitioner has also given a statement to Rajesh Kumar C.R., Sub Inspector of Police, Changanassery, the 6^th respondent, incorporating allegations, including the one punishable under Sections 3(1)(r) & (s) of the Act, 1989.

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According to the writ petitioner, the 6^th respondent, in collusion with the 5^th respondent, shaped the statement in such a fashion and avoided registration of a crime for the offences punishable

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under Sections 3(1)(r) & (s) of Act, 1989. Ext. P5 is the First Information Statement recorded from the petitioner on 24.6.2019. On the same day, Ext. P6 FIR was also registered based on Ext.P5.

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After considering the FIR produced along with the writ petition, Ext. P3 complaint dated 21.06.2019 addressed to the Superintendent of Police, Kottayam, the 3^rd respondent, Ext. P4 complaint dated 21.06.2019 given to the Director General of Police, Thiruvananthapuram, the 2^nd respondent, Ext. P6 dated 24.06.2019 containing the allegations constituting the offence under Section 3(1) (r) & (s) of Act, 1989 and registration of FIR for offences punishable under Sections 294(b), 323 and 324 r/w Section 34 of IPC and also a report of the District Police Chief, Kottayam stating that respondents 4 and 6 are willfully negligent in performing their legal duties to be discharged under the provisions of the Act, 1989, submissions of the learned Senior Government Pleader and taking note of the fact that an enquiry was already proposed to be initiated against respondent Nos. 4 to 6 therein, as per the provisions of Rules 6 and 8(1)(iii) of Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, writ court as per judgment dated 19^th September, 2019 in W.P.(C) No. 23686 of 2019 directed the Deputy Superintendent of Police, District Crime Branch, Kottayam to conduct an oral enquiry and to submit PR minutes within three months. While doing so, writ court further

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directed respondents 1 and 2 therein to initiate criminal action against respondents 4 and 6 as stated supra.

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Assailing the correctness of the judgment, appellant has contended that the writ petition itself is not maintainable, since an alternative remedy is available to the writ petitioner. It is also contended that the writ petitioner never approached the appellant, while he was working as S.H.O of Changanasserry Police Station with a complaint and by disclosing himself as a member of the Scheduled Caste Community by alleging that he got assaulted or suffered with any offence as contemplated in the Act, 1989.

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He further contended that immediately after the receipt of Ext. P2, the appellant instructed the Crime S.I of the station to conduct a preliminary investigation so as to ascertain the Caste of the accused persons alleged in the complaint, as otherwise, the case cannot be registered under the Act, 1989. Further, the appellant has been transferred from Changanesserry on 19-06-2019, in pursuance of the transfer order dated 11-06-2019 and he was not served with a notice in the writ petition and therefore, there is no delay in filing the appeal.

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During the course of argument, learned counsel for the appellant Sri. T. S. Harikumar, submitted that the appellant is not aggrieved of the directions to conduct a departmental enquiry. The

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appellant is aggrieved by the directions issued to respondents 1 and 2 therein to initiate criminal action. He further submitted that the enquiry proceedings are completed and it was prima facie found that the appellant was not wilfully negligent in performing his duties. However, there are no materials to substantiate the said contention.

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In the case on hand, on the basis of the proceedings of the Deputy Inspector General of Police, Ernakulam Range bearing No. A2(a)/14818/2019-ER dated 03.09.2019, an oral enquiry has already

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been proposed against respondent No. 4 and 6 in the writ petition in accordance with Rules 4 and 8(1)(iii) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958.

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It is also well known that if an act constitutes commission of an offence, insofar as there is prima facie any material for the initiation of prosecution, the appointing authority or the superior authority may proceed departmentally or take recourse to court of law or simultaneous proceedings may also be initiated. In the case on hand, when discretion is conferred on the competent authority to decide, on the materials as to whether there is any prima facie case to prosecute, the writ court itself has issued the directions, to prosecute. That portion of the judgment requires interference.

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The appellant is stated to be an Assistant Commissioner of Police. In as much as he is holding a higher position in the Police

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Department, it would be desirable to the Director General of Police, Thiruvananthapuram to consider as to whether there is prima facie material to indicate the commission of offences punishable under the provisions of the Act, 1989 and to proceed in accordance with law.

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In the light of the above discussion, while setting aside the operative portion, in paragraph 7 of the judgment dated 19^th September, 2019 in W.P.(C) No. 23686 of 2019 to the extent of directing prosecution, we direct the Director General of Police, Thiruvananthapuram, respondent No.1, to examine as to whether there are any prima facie materials constituting commission of offences under the provisions of the Act, 1989 and proceed further in accordance with law. The entire exercise shall be completed within one month from the date of receipt of a copy of this judgment.

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This writ appeal is partly allowed as above.

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sd/- S. MANIKUMAR, CHIEF JUSTICE.

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sd/- SHAJI P. CHALY, JUDGE.

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Gopakumar B. v. Binobi

Case brief

What is this about?

What did the court decide?

Gopakumar B. v. Binobi

Case brief

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What did the court decide?

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