Police Complaints Authority; Mahipal Yadav Vs. State [Kerala High Court, 25-07-2016]

Criminal Law – Jisha Murder Case – Police Act, 2011 – Section 110 – State Police Complaints Authority – Summoning a superior Police Officer – Abuse or misuse of police powers – Complaint before the Authority alleging that vital evidence in the case were allowed to be destroyed by not preserving the scene of occurrence – postmortem of the deceased was conducted by a Post Graduate Medical student, instead of a Police Surgeon – body of the deceased was permitted to be cremated before completion of the investigation – Held, there is no material before the State Authority, other than the complaint, to satisfy prima facie that the Complaint is a genuine one – Summoning a superior Police Officer merely on the basis of the allegations raised in a complaint is not justified at all – the writ petition is disposed of directing the State Police Complaints Authority to examine whether it is a genuine complaint, if required, after calling for reports from the superior Police Officers and the State Government – if the State Police Complaints Authority is satisfied prima facie on the said exercise that the complaint in the instant case is a genuine one involving abuse or misuse of police powers, the Authority can certainly summon the petitioner.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.B. SURESH KUMAR, J.

W.P.(C) No.18811 of 2016

Dated 25 th July, 2016

PETITIONER

SRI.MAHIPAL YADAV S/O.SRI.CHHITAR MAL YADAV, AGED 50 YEARS, INSPECTOR GENERAL OF POLICE, KOCHI RANGE, ERNAKULAM.

BY ADV. SRI.AJAY BEN JOSE

RESPONDENT(S)

1. THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM

2. STATE POLICE COMPLAINTS AUTHORITY, TCXV/1402, TAGORE NAGAR, LANE-2, VAZHUTHACAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY

3. ADV.BASIL KURIAKOSE, S/O KURIAKOSE, AGED 35 YEARS, MANGALATH HOUSE, VENGOLA VILLAGE, PERUMBAVOOR. R1 BY GOVERNMENT PLEADER SRI.JOSEPH GEORGE

R2 BY SRI.P.RAVINDRAN (SENIOR ADVOCATE) ADV.SRI.SREEDHAR RAVINDRAN R3 BY SRI.K.RAMAKUMAR (SENIOR ADVOCATE) ADVS.SRI.S.M.PRASANTH SRI.G.RENJITH

J U D G M E N T

The petitioner is a senior IPS officer presently serving the State Government as Inspector General of Police. He is aggrieved by Ext.P7 proceedings of the State Police Complaints Authority (‘the State Authority’ for short).

2. The short facts relevant for decision are the following :

Kuruppampady police registered a case on 28.4.2016 under Sections 302 and 449 of the Indian Penal Code in connection with the murder of one Jisha. On getting information about the crime, the State Police Chief constituted a Special Investigation Team, with the petitioner as its head for its investigation. Accordingly, the petitioner has been investigating the case. According to the petitioner, while the investigation of the case was proceeding in the right direction, he was served with a summons by the State Authority directing him to appear before it with a written statement on Ext.P5 complaint filed by the third respondent. A copy of Ext.P5 complaint was also forwarded by the State Authority to the petitioner along with the summons. In Ext.P5, it is alleged that though Jisha was murdered in her house on 28.4.2016, the petitioner and others have concealed the said fact from the media; that vital evidence in the case were allowed to be destroyed by not preserving the scene of occurrence; that the postmortem of the deceased was conducted by a Post Graduate Medical student, instead of a Police Surgeon and that the body of the deceased was permitted to be cremated before completion of the investigation. On receipt of Ext.P5 complaint, the petitioner informed the State Authority that it has no jurisdiction to entertain a complaint in the nature of Ext.P5. Ext.P6 is the report submitted by the petitioner before the State Authority in this connection. In Ext. P6, it is stated by the petitioner that the allegations raised in Ext.P5 complaint pertain to an ongoing investigation in a case and by entertaining a complaint of this nature, the State Authority is not only interfering with the investigation of the case, but also usurping the functions of the jurisdictional Magistrate. On a consideration of Ext.P6 report, the State Authority issued Ext.P7 proceedings holding that it has jurisdiction to entertain complaints in the nature of Ext.P5 and directed the petitioner to appear before it in person again on 2.6.2016 with his written statement of defence. It is stated in Ext.P7 that if the petitioner does not appear before the State Authority on 2.6.2016 as directed, the complaint will be heard and disposed of as if the petitioner has no valid defence against the various allegations raised in the complaint, followed by a recommendation to register a criminal case against the erring Police Officers. As noted above, the petitioner is aggrieved by Ext.P7 proceedings.

3. A counter affidavit has been filed by the third respondent reiterating the allegations in Ext.P5 complaint and contending that the petitioner and other Police Officers are guilty of grave misconduct in the matter of conducting the investigation of the case.

4. Heard the learned Senior Counsel for the petitioner, the learned Senior Counsel for the State Authority and the learned Senior Counsel for the third respondent.

5. The learned Senior Counsel for the petitioner, relying on the decisions of the Apex Court in

State of West Bengal v. Sampat Lal, AIR 1985 SC 195

and

Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195

contended that investigation is essentially a matter coming within the domain of the Police and by entertaining a complaint of the instant nature, the State Authority is interfering with the investigation of the case. Relying on the decision of the Apex Court in

Sakiri Vasu v. State of U.P., (2008) 2 SCC 409

the learned Senior Counsel for the petitioner also contended that the jurisdictional Magistrate is monitoring the investigation of the case and by entertaining a complaint in the nature of Ext.P5, the State Authority is usurping the jurisdiction of the jurisdictional Magistrate. The learned Senior Counsel, relying on the decision of this Court in

Sr. Sephy and Others v. Union of India and another, 2009 (1) KHC 118

and the decisions of the Apex Court in