Kerala High Court: In a case involving an allegation of rape by a housewife against police officials at the Ponnani Police Station, the Division Bench, comprising of Nitin Jamdar* . CJ., and S. Manu, J.. ruled that the Single Judge’s order must be set aside due to procedural irregularities. The Court noted that the writ petition had been filed without adhering to the proper procedural requirements, specifically bypassing the necessary procedure. Furthermore, the directions issued to the Magistrate were deemed inappropriate because none of the proceedings before the Magistrate were under challenge in the writ petition.
Petitioner 1, filed a complaint under Section 173(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) before the Judicial First-Class Magistrate Court claiming that despite filing complaints to the Station House Officer concerned and District Police Chief regarding the rape by the accused, no FIR was registered. Vide order dated 11-09-2024, the Magistrate sought a report from the DIG and simultaneously, the wife and her close friendfiled a writ of mandamus in this Court.
While hearing the writ petition, the Single Judge called for a report from the Additional Police Superintendent regarding what action has been taken and why a preliminary inquiry is desired. The Single Judge also called for a report from the Judicial First-Class Magistrate Court, which was duly provided. In the said report it was stated that a report needed to be called for under Section 175(4)(a) and (b) of the BNSS. After considering this report, the single-judge declared that Section 175(4) of the BNSS is not mandatory and directed the Magistrate to pass an order as per this declaration of law within ten days. Accordingly, vide judgment dated 18-10-2024, the writ petition was disposed of, and this decision has been challenged in the present appeal.
Analysis:
The Court perused Section 156 of the Code of Criminal Procedure, 1973 (‘CrPC’) and Section 175 of the BNSS and noted that there is a marked difference between the two procedures. However, the Court chose not to delineate the legal issue as the main question is whether it was appropriate to intervene at this stage under Article 226 of the Constitution of India when the complaint was pending, give a declaration of law, and then direct a particular course of action to be followed by the Magistrate.
The Court took note of Sakiri Vasu v. State of Uttar Pradesh (2008) 2 SCC 409 wherein, it was said that, first, the remedy under the CrPC for approaching the Magistrate under Section 156 should be exhausted, and writ petitions under Article 226 should not be directly filed.
The Courtnoted that the petitioners had already approached the Magistrate. Since the Magistrate had initiated the proceedings, bypassing that procedure, the writ petition was filed wherein directions were issued to the Magistrate when none of the proceedings before the Magistrate were under challenge. Additionally, the Court noted that the reliefs sought in the petition have nothing to do with the proceedings pending before the Magistrate, and the order passed by the Magistrate calling for a report was not even the subject matter of the petition.
The Court opined that if the Magistrate found that the matter needed to be proceeded further, they would have taken steps as per provisions under the BNSS. Whereas, if the 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 cognizance and this stage had not arisen in the present case. Lastly, if any erroneous order is passed by the Magistrate, it is always subject to challenge in appropriate proceedings. Thus, the Court held that the impugned judgment suffers from serious procedural irregularity and is required to be set aside.
The Court noted that another aspect is that the Single Judge had already taken note of the report filed by the Magistrate, so it was unnecessary to call for a report from the Magistrate to explain a judicial order especially when there was no disapproval of the report by the Singe Judge. Additionally, the Court opined that the report submitted by the Magistrate explaining the judicial order was specifically looked into, commented on and criticised, which could have been avoided as it placed the Magistrate in a piquant position.
The Court held that the order dated 24-10-2024 of the Magistrate was not passed in routine circumstances. The Court noted that the order of the Magistrate was disapproved, however, it was not set aside. Thereafter, when the Magistrate was directed to decide the matter within ten days, they took the other option. The Court further opined that given how the proceedings unfolded, the Magistrate had no choice but to change the earlier course of action. The Court held that in these peculiar facts and circumstances, it is not possible to accept the simpliciter contention that the Magistrate has taken an independent view of the matter in the aforesaid order, and now the petition has become infructuous.
Regarding the contention that the Magistrate had no option but to recall his original order despite the Magistrate not having such power under section 403 of BNSS, the Court held that apart from the legality, it cannot be ruled out that the Magistrate adopted the course of action because of the direction issued in the impugned judgment.
Taking an overall view of the matter, the Court opined that the situation needs to be rectified, and the position has to be restored to set the judicial proceedings on the proper course. The Court stated that it is more of a matter of concern regarding the procedure adopted than the merits of the matter, thus, it is necessary to intervene.
The Court noted that the 24-10-2024 order of the Magistrate is clearly a sequitur to the impugned judgment and cannot be said to have been passed on an independent application of mind. Therefore, if this Court sets aside the impugned judgment of the Single Judge on the above ground, the 24-10-2024 order would not survive.
Considering the aforesaid, the Court decided to extend the order of not filing the FIR for some time to enable the accusedto challenge the order dated 24-10-2024. The Court further noted that if the aforesaid order is not set aside, then it will cause further delay as another round of litigation for the same purpose with the same result will ensue. Therefore, the Court held that the aforesaid order is also required to be quashed and set aside in this appeal.
Subsequently, the Court directed that the original proceedings filed by petitioners be taken to their logical conclusion by the Magistrate as per law. The Court also clarified that regarding the factual issues and the interpretation of Section 175(4) of the BNSS, the Magistrate will decide the legal and factual position on its own merits, without being influenced by the observations made in the impugned judgment or this judgment.
[Vinod Valiyatoor v. X, 2024 SCC OnLine Ker 6591, decided on 13-11-2024]
Judgment Authored by: Chief Justice Nitin Jamdar
Advocates who appeared in this case:
For the Appellant: Sri. S. Sreekumar (Senior), Sri. N.M. Madhu, Sri. C.S. Rajani.
For the Respondent: Sri. A. Kumar, Senior Advocate for R1 & R2, Adv. Sri. P. Narayanan, Senior Advocate for R3 To R6, Senior Government Pleader & Addl. Public Prosecutor.
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