Annamma Chacko & Chacko P. Varghese v. State of Kerala & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943** ## **WP(C) NO. 15074 OF 2021** ## **NAME AND ADDRESS OF PETITIONER:** |**1**|**ANNAMMA CHACKO**| |---|---| ||**AGED 58 YEARS,**| ||**W/O CHACKO P. VARGHESE,**| ||**PURATHUMMURIYIL HOUSE,**| ||**ERAVIPEROOR P.O., THIRUVALLA,**| ||**PATHANAMTHITTA DISTRICT-689 542**| |**2**|**CHACKO P. VARGHESE**| ||**AGED 56 YEARS,**| ||**PURATHUMMURIYIL HOUSE,**| ||**ERAVIPEROOR P.O., THIRUVALLA,**| ||**PATHANAMTHITTA DISTRICT-689 542**| ||**BY ADVS.**| ||**P.BIJIMON**| ||**N.SURESH**| ||**K.T.SEBASTIAN**| ## **NAME AND ADDRESS OF THE RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY CHIEF SECRETARY,**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695 001**| |**2**|**DIRECTOR GENERAL OF POLICE**| ||**OFFICE OF DIRECTOR GENERAL OF POLICE,**| ||**POLICE HEAD QUARTERS,**| ||**THIRUVANANTHAPURAM-612 901**| |**3**|**THE DISTRICT POLICE CHIEF**| ||**OFFICE OF DISTRICT POLICE CHIEF,**| ||**PATHANAMTHITTA DISTRICT- 689 645**| |**4**|**THE DEPUTY SUPERINTENDENT OF POLICE**| ||**OFFICE OF DEPUTY SUPERINTENDENT OF POLICE,**| ||**PATHANAMTHITTA - 689 645**| |**5**|**STATION HOUSE OFFICER**| ||**POLICE STATION, PATHANAMTHITTA - 689 645**| |**6**|**SUDHEER**| ||**AGED ABOUT 48 YEARS,**| ||**PROPRIETOR OF JYOTHI FINANCE,**| ||**VALLICODE P.O., PATHANAMTHITTA DISTRICT - 689 656**| ||**BY ADVS.**| ||**ARUN.B.VARGHESE**| ||**AISWARYA V.S.**| ||**VARNA MANOJ**| **PP - SRI. M.C.ASHI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 09.11.2021, THE** **COURT ON 21.12.2021 DELIVERED THE FOLLOWING:** W.P.(C)No.15074 of 2021 2 ## **JUDGMENT** This is a writ petition filed under Article 226 of the Constitution of India seeking the following reliefs: - “i) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent police to put the criminal law into motion by registering a crime on Ext.P4, P6 and P7 complaints forwarded to respondents 3 to 5 and initiate investigation into the alleged offence and book the culprits without any further delay in the interest of justice. - ii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3[rd] respondent to handover the investigation of the crime so registered to a superior officer not below the rank of Dy SP in order to secure the ends of justice and thereby to protect the best interest of the defacto complainant who is a cardiac patient. - iii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 5[th] respondent SHO to register an FIR against 6[th] respondent for property damage and extortion and thereafter release the vehicle to the 1[st] petitioner who is the registered owner so as to enable her to take the vehicle to the authorised workshop for repair after intimating the insurance company.” 2. First petitioner is the registered owner of Maruti Swift car bearing No. KL-27/J-269. Petitioners are husband and wife, both are aged and ailing. The first petitioner is a heart patient and the second W.P.(C)No.15074 of 2021 3 petitioner is a renal patient and both are undergoing treatment in Velloor hospital. The subject matter of the petition is the said Maruti Swift car which is in the registered ownership of the first petitioner. According to the petitioners, they purchased the car for an amount of Rs.8,56,000/-, while so, they had to incur huge amounts for their treatment and under utter financial stringency, an amount of Rs.75,000/- was borrowed from the 6[th] respondent, who is a money lender. They were continuously paying the interest of the amount but due to the financial stringency, the entire amount could not be repaid. While so on 03.04.2021, when the 2[nd] petitioner had gone to the RT Office, Pathanamthitta, the henchmen of the 6[th] respondent forcibly took possession of the car and made him to sign certain documents. Even though the matter was complained to the official respondents, no action was taken. They were apprehensive that the vehicle will be misused by the 6[th] respondent, who is highly influential and also a close relative of a retired Superintendent of Police. Using that clout he was misusing the car. He had given the car for the 'rent a car' business and was not prepared to return the same in spite of repeated demands. Police also is hesitant to take action against the 6[th] respondent. While so on 18.06.2021, the car met with an accident and W.P.(C)No.15074 of 2021 4 suffered extensive damage. Even though the petitioners had given complaint, the police had not registered a crime. The car remains in a damaged condition. It is in the interest of the petitioners to get the car repaired and that was how they had renewed the comprehensive insurance of the vehicle even after the same was forcibly taken by the 6[th] respondent. It is understood that the 6[th] respondent had made some false claim over the car stating that he had obtained the car under an agreement of sale etc. These are false claims and therefore the said reliefs have been sought. 3. The 6[th] respondent entered appearance and filed a counter affidavit denying the allegations in the writ petition. According to him, the car was handed over to him under a valid sale agreement executed on 03.04.2021. He is the _bona fide_ purchaser of the car for an amount of Rs.2,90,000/-. The car was outstanding on a loan; even though the original documents were handed over to him, later the 2[nd] respondent had obtained the same from him for the purpose of settling the finance with Mahindra and Mahindra finance and thereafter it were not returned. Thus he preferred Annexure R6(c) complaint before the Circle Inspector of Police, against the petitioners. Meanwhile, on 18.06.2021, the car met with an accident and was removed to the W.P.(C)No.15074 of 2021 5 police station. He wanted to get it repaired and at that time only he knew that the petitioners had preferred some false claim over the car. The intention of the petitioners is to take possession of the car through illegal means. Therefore, the writ petition is sought to be dismissed. 4. I heard the learned counsel for the petitioners, the learned Public Prosecutor and also the learned counsel for the 6[th] respondent. 5. After having heard both sides, I am not inclined to grant any relief to the petitioners. 6. Firstly, it is very clear that the petitioners have come before this Court invoking the extra ordinary jurisdiction under Article 226 of the Constitution, without detailing all the material facts. There is point in the submission of the 6[th] respondent that they have suppressed material facts and have not come with clean hands. In fact, that alone is sufficient to decline any relief under Article 226 of the Constitution. 7. Secondly, there are disputed questions of fact involved in the case. While the petitioners claim that they had borrowed an amount of Rs.75,000/- from the 6[th] respondent who is a money lender, and the car was forcibly taken by the henchmen of the 6[th] respondent on 03.04.2021 etc, on their own showing they did not prefer any W.P.(C)No.15074 of 2021 6 complaint before any authority on the excesses committed against them. It is not a normal human conduct. If a car owned by the petitioners was illegally taken possession by someone, necessarily they would have immediately alerted the police and would have set in motion the machinery. That has not been done. They preferred a complaint only after nearly two months, which can not be accepted in right earnest. 8. Thirdly, as rightly pointed out by the learned counsel for the 6[th] respondent and the learned Public Prosecutor, if the police had failed to act upon the complaint regarding the commission of a cognizable offence, the remedy available to the petitioners is to invoke the jurisdiction under Section 154(3) of the Cr.P.C, as held by **Sakiri Vasu v. State of Uttar Pradesh and others [(2008) 2 SCC 409]** . This decision has been reiterated in **Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and others [(2016) 6 SCC 277]** . In other words, if the petitioners are aggrieved by the inaction on the part of the police officers in registering a crime despite the information regarding the commission of a cognizable offence was stated to them, they are not left without any remedy. They should have moved the court with a complaint, which has not been attempted at all. W.P.(C)No.15074 of 2021 7 9. It may be true that both the petitioners are having ailments and also are aged persons, but that is not a valid circumstance; that will not permit them to bypass the procedural law. They should not have hesitated to invoke the jurisdiction of the jurisdiction under Section 154(3) of the Cr.P.C when the police had allegedly did not hesitated to act upon their legitimate complaint. As already pointed out, there are reasons to think that they have not come with clean hands. Such persons cannot invoke the extra ordinary jurisdiction of this Court. I am not inclined to grant them any relief. The writ petition is devoid of merits and it is dismissed. Sd/- **K.HARIPAL JUDGE** Jms/19.12 //True Copy// P.A to Judge W.P.(C)No.15074 of 2021 8 ## **APPENDIX OF WP(C) 15074/2021** |**PETITIONER EXHIBITS**|| |---|---| |**Exhibit P1**|**THE COPY OF THE DISCHARGE SUMMARY ISSUED TO THE**| ||**PETITIONERS FROM CMC VELLORE**| |**Exhibit P2**|**THE COPY OF CERTIFICATE OF REGISTRATION ISSEUD BY**| ||**SRTO, THIRUVALLA TO THE VEHICLE OWNED BY THE 1ST**| ||**PETITIONER BEARING REG NO.KL.27/J 269**| |**Exhibit P3**|**THE COPY OF THE INSURANCE POLICY DATED 02.06.2021**| ||**ISSUED IN THE NAME OF 1ST PETITIONER TO THE CAR**| ||**BEARING REG NO.KL 27/J269**| |**Exhibit P4**|**THE TRUE COPY OF THE COMPLAINT DATED 16.06.2021 SENT**| ||**TO THE DY SP PATHANAMTHITTA BY THE 1ST PETITIONER.**| |**Exhibit P5**|**THE COPY OF THE RELEVANT PAGE OF THE MALAYALA MANORAMA**| ||**DAILY PUBLISHED ON 18.06.2021 TO EXHIBIT THE SCENE OF**| ||**ACCIDENT AND DAMAGE CAUSED TO THE CAR.**| |**Exhibit P6**|**THE TRUE COPY OF COMPLAINT DATED 21.06.2021 SENT BY**| ||**THE 1ST PETITIONER ADDRESSING THE 3RD RESPONDENT SP,**| ||**PATHANAMTHITTA.**| |**Exhibit P7**|**THE TRUE COPY OF COMPLAINT DATED 30.06.2021 SENT BY**| ||**THE 1ST PETITIONER ADDRESSING THE 3RD AND 5TH**| ||**RESPONDENTS.**| |**Exhibit P8**|**THE COPY OF COMPLAINT DATED 24.06.2021 SUBMITTED BY**| ||**THE 6TH RESPONDENT BEFORE SHO PATHANAMTHITTA.**| |**RESPONDENT'S EXHIBITS**|| |---|---| |**Exhibit R6(a)**|**TRUE COPY OF THE SALE AGREEMENT DATED 03.04.2021**| ||**ENTERED BETWEEN THE 1ST WRIT PETITIONER AND THE 6TH**| ||**RESPONDENT.**| |**Exhibit R6(b)**|**A TRUE COPY OF THE CONSENT LETTER DATED 03.04.2021**| ||**EXECUTED BY THE 2ND PETITIONER.**| |**Exhibit R6(C)**|**A TURE COPY OF THE COMPLAINT FILED BY THE PETITIONER**| ||**BEFORE THE PATHANAMTHITTA CIRCLE INSPECTOR.**|