Court set aside police order refusing to register FIR regarding publication of rape victim details in a book. Directed SHO to register FIR under Section 228A IPC as materials disclosed cognizable offence.
Ext.P7 set aside. Directions to Station House Officer to register FIR under Section 228A IPC within seven days.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
WP(CRL.) NO. 575 OF 2023
PETITIONER:
K.K.JOSHWA, AGED 71 YEARS, S/O KUNJUMMEN, AGED 71, KALEEKKAL, SNRA 81, SURYA NAGAR, POWDIKONAM P.O., THIRUVANANTHAPURAM, PIN–695 588.
BY ADVS.NANDAGOPAL S.KURUP ABHIRAM T.K.
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.
2 DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM CITY, THYCAUD P.O., THIRUVANANTHAPURAM, PIN-695 014.
3 STATION HOUSE OFFICER, MANNANTHALA POLICE STATION, MANNANTHALA P.O., THIRUVANANTHAPURAM, PIN-695 043.
AGED 71 YEARS, S/O.JOSEPH MATHEW, TC.14/229, SILVERHILLS, ANAYARA P.O., THIRUVANANTHAPURAM-695 029.
ADV.M.BAIJU NOEL
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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'C.R.'
JUDGMENT
Dated this the 6th day of June, 2024
This is a petition filed by the petitioner under Article
226 of the Constitution of India, seeking the following
reliefs:-
I. Issue a writ of certiorari or other appropriate writ or order quashing Exhibit P7 passed by the second respondent, in the interest of justice.
II. Issue a writ of mandamus or other appropriate writ or direction commanding the third respondent to consider Exhibit P3 complaint and register a First Information Report at the Mannanthala Police Station, Thiruvananthapuram, in the interest of justice.
III. Issue a writ of mandamus or other appropriate writ or direction commanding the first respondent to take appropriate departmental action as against the second and third respondents, in accordance with the mandate of the Hon'ble Supreme Court in Para 111(iv) of the judgement in Lalita Kumari v.
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Government of U.P. , reported in [2014 (2) SCC 1], for willfully not registering the FIR on Exhibit P3 and P4 complaints, in the interest of justice.
IV. Pass such other orders as this Hon'ble Court deems fit, in the interest of justice.
learned Public Prosecutor and the learned counsel for the additional 4th respondent, who is arrayed as the respondent in Exts.P3 and P4 complaints filed by the petitioner.
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chapter of having caption “Sooryanelli Case” is incorporated which relates to the rape of a minor girl by number of accused persons during 1996. The specific allegation is that in the above said book, the author of the book revealed the identity of the rape victim with exact details though her name was not specifically disclosed. It is alleged that in the book, names, address and all the details of the parents of the victim disclosed with certainty and thereby the 4th respondent committed an offence punishable under Section 228A of IPC providing imprisonment for a period upto two years and shall also liable to fine. Accordingly, Ext.P3 complaint was filed before the Station House Officer and Ext.P4 before the District Police Chief. Ext.P2 produced in this writ petition, is the exact page of the said book containing the recitals that would disclose the identity of the rape victim, as per the contentions raised by the writ petitioner.
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Nirbhayam ”.
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Kumari's case (supra), in Paragraph No.111, the Constitution Bench of the Apex Court summarised the
conclusion/directions as under:-
“111. Conclusion/Directions:
In view of the aforesaid discussion, we hold:
(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in
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brief for closing the complaint and not proceeding further.
(iv) The Police Officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. (vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(b) Commercial offences
(c) Medical negligence cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months
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delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”
Another decision of the Apex Court in Nipun Saxeena and
Another v. Union of India and Others [2019 (1) KHC 199] ,
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also is pointed out to contend that the Apex Court also issued directions to address the necessity to protect identity and names of victims of rape and victims under the Protection of Children from Sexual Offences Act. The directions issued by the Apex Court are as under:
“1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
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be put in the public domain.
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the Government acts under S.228A(1)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.
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to. It is argued further that in the present case, the publication of the book was in May, 2017 and Ext.P3 complaint was filed for the first time on 25.10.2019. After a delay of more than 2 years, therefore the present case is one covered by Clause (vi)(e) of Paragraph 111 of Lalitha Kumari's case and therefore, the Police Officer is not required to register FIR in the present crime and a preliminary enquiry is legally permissible as per the ratio in Lalitha Kumari's case .
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the book even though the name of the victim was referred under a different name, the details of the parents of the victim, the place where the victim and parents were resided and later had been residing, the school where the victim studied and had studied thereafter were disclosed in detail.
228A. Disclosure of identity of the victim of certain offences etc. 1.Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376,
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section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA and section 376DB[1] is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
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no materials forthcoming to see that such authorisation as contemplated in Sub-section (2)(b) and (c) of Section 228A of IPC, was obtained prior to the book was published.
of Police to the petitioner that there is nothing available to register a crime. In Paragraph No.8 of the statement filed by the State in W.P.(C) No. 31667/2019, the contention is as extracted hereinabove.
“3. Whoever prints publishes any matter in relation to any proceedings before a court with
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respect to an offence referred to in sub-section (1) without the previous permission of such court shall be punished with imprisonment of either description for a term may extend to two years and shall also be liable to fine.
To ascertain whether the allegation comes under the purview of Sec. 228A IPC, a legal opinion was sought from the Director General of Prosecution. In the legal opinion ".....the materials forwarded along with it do disclose an offence under section 228A IPC. On a careful perusal of the complaint and relevant pages of the alleged book in question, it is seen that the details are sufficient enough to identify a girl. But the copy of the truncated portion of the alleged book does not in clear term convey the fact that the girl is a victim of any of the offences mentioned in Section 228A of IPC except mere mentioning of " peedippikkapetta penkutti ". True that in the complaint there is a positive assertion that the girl mentioned above is a victim of the offences
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of rape. But the complainant cannot keep the Station House Officer guessing of anything or to ask him to take notice of anything in the air. If at all anything is there, it must be specific. If as a matter of fact it is discernible from the whole book in question that the girl mentioned above is a victim of any of the offences mentioned under Section 228A of IPC, it may attract an offence under Section 228A of IPC. Hence, it is for the investigating officer to verify/peruse the book in question in its entirety and to ascertain whether the girl mentioned above is a victim of any the offences mentioned under section 228A of IPC and proceed in accordance with law. I opine accordingly".
the last page of the legal opinion, it has been opined as
under:-
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“Now the question arises as to whether the complaint as well as the materials forwarded along with it do disclose an offence under Section 228A. On a careful perusal of the complaint and the relevant pages of the alleged book in question, it is seen that the details are sufficient enough to identify a girl. But the copy of the truncated portion of the alleged book does not in clear term convey the fact that the girl is a victim of any of the offences mentioned in Section 228A of IPC except mere mentioning of " peedippikkapetta penkutti ". True that in the complaint there is a positive assertion that the girl mentioned above is a victim of the offences of rape. But the complainant cannot keep the Station House Officer guessing of anything or to ask him to take notice of anything in the air. If at all anything is there, it must be specific. If as a matter of fact it is discernible from the whole book in question that the girl mentioned above is a victim of any of the offences mentioned under Section 228A of IPC, it may attract an
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offence under Section 228A of IPC. Hence, it is for the investigating officer to verify/peruse the book in question in its entirety and to ascertain whether the girl mentioned above is a victim of any the offences mentioned under section 228A of IPC and proceed in accordance with law. I opine accordingly".
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Malayala Manorama Daily, January, 1996 also incorporated in bold letters with caption 'Advocate and others who committed rape on the victim were arrested'. So reading the book from page Nos.209, 210 and 211, one could easily get the identity of the girl referred as “ peedippikkapetta penkutti” as a victim of rape covered by Section 228A of IPC. Therefore, the preliminary enquiry final report found to be without application of mind by the Investigating Officer and the same is liable to be set aside.
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Kumari's case (supra).
“25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under S.482 CrPC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under S.154(3) and S.36 CrPC before the concerned police officers,
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and if that is of no avail, by approaching the concerned Magistrate under S.156(3).
xxxx xxxx
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well settled that if there is an alternative remedy the High Court should not ordinarily interfere.”
“6. In paragraph 24 of the decision reported in Babu Venkatesh & Ors. v. State of Karnataka & Ors.'s case (supra), paragraphs 30 and 31 of the decision reported in (MANU / SC / 0344/2015 : 2015 (6) SCC 287) Priyanka Srivastava and anr. v. State of Uttar Pradesh & Ors. were referred as under:
"30: In our considered opinion, a stage has come in this country where S.156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the
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allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Art.226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
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made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under S.156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute / family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay / laches in initiating criminal prosecution, as are illustrated in Lalita Kumari (MANU / SC / 1166/2013 : 2014 (2) SCC 1 : 2014 (1)SCC (Cri.) 524) are being filed. That apart, the learned Magistrate would also beaware of the delay in lodging of the FIR."
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complainant will be liable for prosecution in accordance with the law. Vigilance is specially required in cases pertaining to fiscal sphere, matrimonial / family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay / laches. Thus, the Magistrate must be attentive and proceed with perspicacity to examine the allegation made and the nature of those allegations. He should not issue directions without proper application of mind which would be contrary to the object and purpose of the Statute."
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However, it is well settled that the power of a
constitutional court to order investigation is not taken away because of availability of alternative remedy in an appropriate case of this nature where the accused is none other than former DGP of the Kerala State. That apart, it is perceivable that Exts.P3 and P4 complaints were filed by the petitioner who worked along with the 4th respondent as Deputy Superintendent of Police, on 25.10.2019 and on 06.11.2019, the complaints not properly acted upon the last five years. Having noticed the above factual and legal position, this writ petition stands disposed of as under:-
i) In view of the discussion held above, Ext.P7 found to be unsustainable in law and the same stands set aside.
ii) There shall a direction to the 3rd respondent Station House Officer, Mannanthala Police Station to consider Ext.P3, where there is disclosure of a cognizable offence and to proceed forthwith,
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following the ratio in Lalitha Kumari's Case (supra) at any rate, within a period of seven days from the date of receipt of a copy of this judgment.
Sd/- A. BADHARUDEEN JUDGE
bpr
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APPENDIX OF WP(CRL.) 575/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE COVER PAGE OF THE BOOK "NIRBHAYAM-ORU IPS OFFICERINTE ANUBHAVAKURUPU" ALONG WITH THE RELEVANT PAGE CONTAINING THE DETAILS OF THE PRINTER AND PUBLISHER. Exhibit P2 TRUE COPY OF THE PAGES 209 TO 212 OF THE BOOK “NIRBHAYAM-ORU IPS OFFICERINTE ANUBHAVAKURUPU”, 2017 EDITION, PUBLISHED BY GREEN BOOK PRIVATE LIMITED, THRISSUR. Exhibit P3 TRUE COPY OF THE COMPLAINT DATED 25.10.2019 PREFERRED BY THE PETITIONER BEFORE THE THIRD RESPONDENT. Exhibit P4 THE TRUE COPY OF THE COMPLAINT DATED 06.11.2019 PREFERRED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.
Exhibit P5 TRUE COPY OF THE STATEMENT DATED 20.01.2020 IN W.P(C).NO. 31667/2019 ON THE FILES OF THE HON'BLE COURT.
Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 15.12.2022 IN W.P(C) NO. 31667/2019 PASSED BY THIS HON'BLE COURT.
Exhibit P7 TRUE COPY OF THE NOTICE DATED 05.03.2023 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER.
Exhibit P8 TRUE COPY OF THE CIRCULAR NO. 5/2018 DATED 11.04.2018 ISSUED BY THE DIRECTOR GENERAL OF POLICE, KERALA REFERRED TO IN EXHIBIT P7.
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RESPONDENTS' EXHIBITS
Exhibit-R4(a) TRUE COPY OF THE O.S.NO.192/2017 OF SUB COURT THIRUVANANTHAPURAM.
Exhibit-R4(b) TRUE COPY OF THE ADDRESS DETAILS OF THE VICTIM IN JUDGMENT OF WPC.NO.8644 OF 2013 (E) DATED 12.04.2013 OF THE HON'BLE HIGH COURT OF KERALA.
2 issues framed by the court
Whether a cognizable offence under Section 228A of IPC is disclosed by the particulars in the published book sufficient to warrant registration of FIR without preliminary inquiry.
Whether the directing office order not registering FIR is sustainable when material discloses identity of a rape victim without proper authorization.
Colour shows how this judgement treated each authority
Lalita Kumari v. Government of U.P.Applied¶25
Lalita Kumari v. Government of U.P., [2014 (2) SCC 1] · Who else cites this
Nipun Saxeena and Another v. Union of India and OthersRelied on¶79
Nipun Saxeena and Another v. Union of India and Others, [2019 (1) KHC 199]
Sakiri Vasu v. State of U.P. and OthersDistinguished¶145
Sakiri Vasu v. State of U.P. and Others, [2008 (2) KHC 13]
Don Paul v. State of KeralaRelied on¶156
Don Paul v. State of Kerala, [2024 (3) KHC 617]
Kailash Vijayvargiya v. Rajlakshmi ChaudhuriRelied on¶169
Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, [2023 SCC OnLine SC 569] · Who else cites this
3 provisions across 3 enactments
K.K.JOSHWA
STATE OF KERALA
DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM
STATION HOUSE OFFICER, MANNANTHALA POLICE STATION
SIBY MATHEWS
A. BADHARUDEEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
A. BADHARUDEEN
Parties & counsel
