It’s Necessary To Intervene: Kerala HC Directs Magistrate To Decide Case Involving Alleged Rape By Ponnani Police Officers

The Kerala High Court has directed the Magistrate to decide the case involving allegations of rape against Ponnani Police Officers.

The Court was dealing with an Appeal challenging the Judgment of the Single Judge by which it directed the Magistrate to pass an Order within ten days.

A Division Bench comprising Chief Justice Nitin Jamdar and Justice S. Manu said, “Taking an overall view of the matter, we are of the opinion that the situation needs to be rectified, and the position has to be restored to set the judicial proceedings on the proper course. As we have indicated earlier, it is more of a matter of concern regarding the procedure adopted than the merits of the matter. We are aware of the seriousness of the allegations made by the Petitioners in their complaint, however, this Appeal raises broader issues that relate to the exercise of independent jurisdiction by the learned Magistrate. Therefore, we are of the opinion that it is necessary to intervene.”

Senior Advocate S. Sreekumar appeared for the Appellant while Senior Advocate A. Kumar and Additional Public Prosecutor (APP) P. Narayanan appeared for the Respondents.

Brief Facts -

The Complainants filed a Complaint before the Judicial First Class Magistrate, Ponnani. The Complainants were a housewife and her close friend and as per their case, despite filing complaints to the concerned Station House Officer (SHO) and District Police Chief (DPC) regarding the alleged rape by the accused, no FIR was registered. The Magistrate sought a report under Section 175(4)(a) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) in September 2024 and at that stage, the Complainants filed a Writ Petition. The Appellant was not a party to the same.

The Single Judge called for a report from the Additional Police Superintendent regarding what action has been taken and why a preliminary enquiry is desired in this case. The Judge also called for a report from the Magistrate regarding the proceedings. On submission of report by the Magistrate, the Single Judge took it into consideration and 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, the Writ Petition was disposed of and this Order was challenged in the Appeal before the High Court.

The High Court in view of the above facts, observed, “The order passed by the learned Magistrate dated 24 October 2024 is on record. We have heard the learned Senior Advocates for the parties regarding the same. The order passed by the learned Magistrate, dated 24 October 2024, is clearly a sequitur to the impugned judgment and cannot be said to have been passed on an independent application of mind. Therefore, if we set aside the impugned judgment of the learned Single Judge on the above ground, the order passed by the learned Magistrate based on the order of the learned Single Judge would not survive.”

The Court remarked that, having declared that the Order passed by the Magistrate is only a sequitur to the impugned judgment, setting aside the same will be inevitable.

“We will now have to decide whether to set aside the order dated 24 October 2024 in this Appeal or let the Appellant take out independent proceedings for the same. For the other course of action, we will have to extend the order of not filing the FIR for some time to enable the Appellant to challenge the order dated 24 October 2024”, it noted.

The Court added that however, the matter needs to move on at the earliest. It said that if the Order of the Magistrate 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 and this delay will also prejudice the Complainants.

“Because the methodology adopted in the impugned order was incorrect, it should not prejudice the Petitioners also. Therefore, having given our anxious consideration to the course of action to be adopted, we are of the opinion that the order passed by the learned Magistrate dated 24 October 2024 is also required to be quashed and set aside in this Appeal in the above circumstances”, it concluded.

Accordingly, the High Court allowed the Appeal, quashed the impugned Judgment, and directed the Magistrate to decide the legal and factual position without being influenced.

Cause Title- ABC v. XXXXXXXXXX (Neutral Citation: 2024:KER:84446)

Appearance:

Appellant: Senior Advocate S. Sreekumar, Advocates N.M. Madhu, and C.S. Rajani.

Respondents: Senior Advocate A. Kumar and APP P. Narayanan.

Click here to read/download the Judgment