Rosy Devassy, vs State of Kerala,

Type Court Judgment Court Kerala Orders Decided Oct 29, 2021

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Citation: sooperkanoon.com/1685876
Court: Kerala Orders High Court
Judge: Honourable Mrs. Justice M.R.Anitha
Decided On: Oct 29, 2021
Case Number: WP(Crl.)/236/2021

Parties & Advocates

Appellant / Petitioner

Rosy Devassy,

Respondent

State of Kerala,

Excerpt

.....as per section 155(2) cr.p.c., no police officer shall investigate a non-cognizable offence without the order of a magistrate having power to try such case. statement given by the complainant to cpo, viyyoor would go to show that she has been-4-giving a detailed narration of the civil dispute. about the incident on 09.09.2021 she categorically stated that hariharan and his men came in front of the gate and since it could not be opened, she was abused and threatened by hitting on the gate. so the act made out at the instance of hariharan and others will prima facice attract section 506 ipc alone which is a non-cognizable offence and hence, there is express bar under section 155(2) cr.p.c. for police officer to conduct investigation without the order of magistrate.in the result, writ petition dismissed with liberty to the petitioners to approach the appropriate form. sd/- m.r.anitha judge nkr -5- appendix of wp(crl.) 236/2021 petitioner exhibits exhibit p1 true copy of the complaint dated 13.09.2021 submitted by the petitioner before the 5th respondent. exhibit p1(a) true copy of the acknowledgement receipt issued by the 5th respondent exhibit p2 true copy of the complaint dated before the 2nd respondent. exhibit p2(a) true copy of the decision taken by the 2nd respondent bearing file no. dct sr/7261/2021-c1 and dated 15.9.2021. exhibit p3 true copy of the complaint dated before the 3rd respondent. exhibit p3(a) true copy of the acknowledgement receipt issued by the 3rd respondent exhibit p4 true copy of the complaint dated before the 4th respondent. exhibit p4(a) true copy of the acknowledgement receipt issued by the 4th respondent

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE M.R.ANITHA FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 WP(CRL.) NO. 236 OF 2021 PETITIONER: ROSY DEVASSY, AGED 74 YEARS, W/O. LATE DEVASSY, MALIEKAL, MADATHUMPADY HOUSE, PERINGAVU P.O, THRISSUR DISTRICT-680 008 BY ADV SUMODH MADHAVAN NAIR RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS HOME SECRETARY, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR-680 003 3 THE CITY POLICE COMMISSIONER, THE DISTRICT POLICE CHIEF, THRISSUR-680 001 4 THE DEPUTY INSPECTOR GENERAL OF POLICE, THRISSUR RANGE, RANGE OFFICE, THRISSUR-680 001 5 THE STATION HOUSE OFFICER, VIYYUR POLICE STATION, VIYYUR, THRISSUR DISTRICT- BY ADVS. DIRECTOR GENERAL OF PROSECUTION SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-

ORDER

This writ petition has been filed against the non-registration of the FIR despite the receipt of the complaint filed by the petitioner in a cognizable offence.

2. According to the petitioner, she is an old lady of 75 years and the mother of two children. On 09.09.2021 at about 6.45 am, two unidentified persons unlawfully entered into her

property with a criminal intention and thereby caused injury to her and her family members. It is also alleged that they used abusive language to insult the petitioner and created a frightening atmosphere in her house and in spite of filing a complaint regarding the incident to the 5th respondent, no action was taken by the 5th respondent.

3. Exts.P1 is the copy of the complaint to SHO and

Ext.P1(a) is the acknowledgment receipt. Ext.P2 is the copy of the complaint to the District Collector. Exts.P3 and P3(a) are the complaint to DIG of Police and acknowledgment receipt.

4. Notice was issued to the respondents and the Senior Government Pleader appeared on behalf of all the respondents. A -3- report was filed by the Inspector of Police, Viyyur Police Station.

5. Heard both sides.

6. As per the report, the dispute originated from civil

issues and no cognizable offence has been committed and signed

statement of the complainant recorded also has been produced along with report.

7. The learned Senior Government Pleader brought to my

attention specific statement of the complainant with regard to the incident which occurred on 09.09.2021, wherein she categorically stated that on the said day at about 6.45 am, two persons, who are the men of Hariharan came in front of the house and knocked on the gate and she was abused and threatened and if the money is not paid, the son will be done away. Since the gate was not opened and neighbouring people approached, they escaped.

8. The main contention of the learned senior Government

Pleader is that only an offence under Section 506 IPC, which is non-cognizable has been made out and hence no crime was registered. As per Section 155(2) Cr.P.C., no police officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case. Statement given by the complainant to CPO, Viyyoor would go to show that she has been

-4-

giving a detailed narration of the civil dispute. About the incident on 09.09.2021 she categorically stated that Hariharan and his men came in front of the gate and since it could not be opened, she was abused and threatened by hitting on the gate. So the act made out at the instance of Hariharan and others will prima facice attract Section 506 IPC alone which is a non-cognizable offence and hence, there is express bar under Section 155(2) Cr.P.C. for police officer to conduct investigation without the order of Magistrate.

In the result, writ petition dismissed with liberty to the petitioners to approach the appropriate Form. Sd/- M.R.ANITHA JUDGE nkr -5- APPENDIX OF WP(CRL.) 236/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE COMPLAINT DATED 13.09.2021 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. Exhibit P1(A) TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED BY THE 5TH RESPONDENT Exhibit P2 TRUE COPY OF THE COMPLAINT DATED BEFORE THE 2ND RESPONDENT. Exhibit P2(A) TRUE COPY OF THE DECISION TAKEN BY THE 2ND RESPONDENT BEARING FILE NO. DCT SR/7261/2021-C1 AND DATED 15.9.2021. Exhibit P3 TRUE COPY OF THE COMPLAINT DATED BEFORE THE 3RD RESPONDENT. Exhibit P3(A) TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED BY THE 3RD RESPONDENT Exhibit P4 TRUE COPY OF THE COMPLAINT DATED BEFORE THE 4TH RESPONDENT. Exhibit P4(A) TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED BY THE 4TH RESPONDENT

Same Court & Year Kerala Orders · 2021 Same Parties Rosy Devassy, vs State of Kerala, Same Judge Honourable Mrs. Justice M.R.Anitha