Failure To Take Action Is Shocking: Kerala HC In Case Involving Alleged Rape Committed By Police Officers

The Kerala High Court in a case involving alleged rape committed by the police officers, said that the failure to take action by the authorities is shocking.

The Court was dealing with a writ petition filed by the victim under Section 173(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

A Single Bench of Justice A. Badharudeen remarked, “It is discernible from the records placed by the prosecution that, as per Ext.R3(e), as on 20.8.2022, petitioner No.1 made a specific complaint against the C.I. of Police regarding forceful sexual intercourse. But, no action taken against the C.I., so far. Why there was failure to take action on Ext.R3(e) for a period of 3 years, is shocking. Thereafter, petitioner No.1 raised complaint alleging sexual intercourse by the C.I., Dy.S.P. and S.P.”

Advocate Muhammed Firdouz A.V. represented the petitioners while Special Public Prosecutor (SPP) P. Narayanan represented the respondents.

In this case, as per the petitioners, the victim filed a complaint before the Station House Officer (SHO) under Section 173(1) of BNSS, alleging that she was raped by certain police officers. Despite having filed a petition disclosing a cognizable offence warranting registration of FIR, the SHO did not register any crime so far. Thereafter, the victim submitted a follow-up complaint via email to the Superintendent of Police, requesting investigation. It was alleged that the Superintendent started to proceed with the complaint contrary to the legal procedures and started to collect evidence without registering FIR. As part of the same, Additional Police Superintendent (APS), along with a group of police officers and a videographer arrived at the victim's house without informing her and began to record her statements about the incident.

Female police officers then transcribed the same into a formal statement of the complainant without registering an FIR. Thereafter, a notice was issued to secure her presence on the premise of preliminary investigation. Later, the victim approached the District Police Chief, Malappuram and repeated her demand to register a crime, but the same also was not heeded. Then, the victim filed a private complaint before the Judicial First Class Magistrate Court, Ponnani, Malappuram and the Magistrate also not ordered any investigation.

The High Court in view of the above facts, observed, “Assimilating the legal position as stated above, when a lady alleges sexual molestation by coitus, by a police officer or a public servant, the same could not be held as a complaint against a public servant arising in course of the discharge of his official duties. At the same time, it has to be held that, Section 175(4) of the BNSS used the term ‘may’ and the legislative intent behind this provision is only discretionary and not mandatory.”

The Court added that the procedure opted by the Magistrate to call for a report containing facts and circumstances of the incident resorting to Section 175(4) (a) of the BNSS, from the officer superior to them as well as the situation led to the incident, so alleged, are not mandatory in this case.

“Since it is reported by the learned Magistrate that, in view of the decision in XYZ's case (supra), the learned Magistrate is of the bona fide view that an investigation should be ordered in the complaint, I am not inclined to order investigation in this matter and I direct the learned Magistrate to pass order therein, as per law discussed hereinabove, within a period of ten days from the date of receipt of a copy of this judgment”, it further ordered.

Accordingly, the High Court disposed of the writ petition.

Cause Title- XXXX & Anr. v. State of Kerala & Ors. (Neutral Citation: 2024:KER:77492)

Appearance:

Petitioners: Advocates Muhammed Firdouz A.V., M.P. Shameem Ahamed, Libin Varghese, Akhil Philip Manithottiyil, and A.H. Sincey.

Respondents: SPP P. Narayanan

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