Archana Gopinath v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 03RD DAY OF DECEMBER 2020 / 12TH AGRAHAYANA, 1942** ## **WP(C).No.18060 OF 2020(F)** ## **PETITIONER/S:** **ARCHANA GOPINATH, AGED 26 YEARS D/O.GOPINATH, RESIDING AT GOKULAM, CHEROOPA P.O, KOZHIKODE DISTRICT-673 661** **BY ADVS. SRI.SANTHARAM.P SMT.REKHA ARAVIND SRI.PAUL P. ABRAHAM SRI.P.G.GOKULNATH** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REP. BY CHIEF SECRETARY, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001**| |**2**|**THE COMMISSIONER OF POLICE,**| ||**CITY POLICE OFFICE, PALAYAM P.O,**| ||**KOZHIKODE DISTRICT-673 004**| |**3**|**THE CIRCLE INSPECTOR OF POLICE,**| ||**MAVOOR POLICE STATION, MAVOOR P.O,**| ||**KOZHIKODE DISTRICT-673 661**| |**4**|**THE SUB INSPECTOR OF POLICE,**| ||**MAVOOR POLICE STATION, MAVOOR P.O,**| ||**KOZHIKODE DISTRICT-673 66**| |**5**|**RAJESH, S/O. SRIDHARAN, AGED 49 YEARS,**| ||**SARASA VILLA, CIVIL STATION P.O,**| ||**KOZHIKODE DISTRICT-673 020**| ||**R1-4 BY GOVERNMENT PLEADER**| -2- W.P.(C). No. 18060 of 2020 ## **R5 BY ADV. SRI.SUNNY MATHEW** ## **OTHER PRESENT:** **SR.GP - SRI. THAJUDEEN P.P.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C). No. 18060 of 2020 ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 3 to 5 or concerned among them to initiate criminal proceedings against the 5[th] respondent and to render adequate and meaningful protection to the petitioner and her family, against the act of obstruction, interruption and interference by the 5[th] respondent and persons with him. 2. Going by the averments in the writ petition, there are certain monitory disputes between the petitioner's father and the 5[th] respondent. It is alleged in the writ petition that, in connection with those disputes, the 5[th] respondent trespassed into the petitioner's property and threatened her and her family members with dire consequences. In such circumstances, the petitioner filed Ext.P3 complaint before the 3[rd] respondent Station House Officer and thereafter, moved this writ petition before this Court seeking the aforesaid relief. 3. On 26.08.2020, when this writ petition came up for admission, the learned Government Pleader took notice for -4- W.P.(C). No. 18060 of 2020 respondents 1 to 4. Urgent notice by speed post was ordered to the 4[th] respondent. This Court by the order dated 26.08.2020, directed respondents 3 and 4 to afford effective protection to the life and property of the petitioner from any obstructions/incursions by the 5[th] respondent. 4. A statement has been filed by the 3[rd] respondent Station House Officer. Paragraphs 3 to 5 of the said statement read thus: “3. It is submitted that the respondents had informed the petitioner that he had filed ST 1424/19 JFCM VII u/S 138 of NI Act and warrant is pending against the petitioner's father for default of the sum owed from him. No warrant under Section 138 of NI Act is pending against the petitioner's father in Mavoor Police Station. 4. It is submitted that a petition has been received from the petitioner on 24.08.2020 at Mavoor Police Station through e-mail and the petition is registered at Mavoor Police Station as No.138/E2/GI Ptn/2020. Then conducted enquiry in the matter. Both the petitioner and respondent are residing in the containment zone and enquiry could not be started on that day. Both the petitioner and respondent were informed that further legal measures have to be taken only after removing the -5- W.P.(C). No. 18060 of 2020 restriction in connection with Covid-19 pandemic. Later on 08.09.2020, the Mavoor Police recorded the statement of the petitioner, her family members and respondent. Both the parties especially the respondent are agreed that they will not entertain any unlawful activities in this regard. A close watch has been maintaining by the police in this regard to avoid any unlawful incidents. 5. It is submitted that no unlawful activities or atrocities reported from the petitioner after the Police accepted her complaint on 24.08.2020. The residential area of both petitioner and respondent are under the restriction of Covid-19 control. Moreover the petitioner was informed to contact the Police as and when she required the service of the police in this regard. Therefore, it is respectfully submitted that the police is ready and willing to obey the orders passed by this Hon'ble Court in the subject matter.” 5. The 5[th] respondent has filed counter affidavit opposing the reliefs sought for in this writ petition. Paragraph 9 of the counter affidavit reads thus: “It is submitted that the father of the petitioner is a close family friend of the petitioner. He is a lawyer by occupation. I am working Abroad. The father of the petitioner was in financial stringency and had sought -6- W.P.(C). No. 18060 of 2020 my health to tide over the financial difficulties. On various occasions, through the bank account of the father of the petitioner, I had paid an amount of about 25 lakhs to the father of the petitioner. Moreover I have taken three loans from the K.D.C Bank for a total sum of Rs.57 lakhs and paid the same to the father of the petitioner on his promise that he will repay the loan amount as he was lacking required credit score. However, he did not repay the loan amount. Towards partial discharge of liability which the father of the petitioner owed to me, he had issued a cheque bearing No.002217 dated 20.02.2019 for an amount of Rs.5 lakhs drawn on the Malapparamb branch of Axis Bank. The said cheque, when presented for collection, bounced on account of insufficiency of funds in the amount maintained by the father of the petitioner and the same is the subject matter of S.T.1424/2019 on the file of Judicial First Class Magistrate-VII, Kozhikode, for the alleged commission of offence punishable U/s.138 of Negotiable Instrument Act. Moreover, the father of the petitioner had issued two other cheques to me having Nos.009051 dated 28.04.2019, and cheque No.009052 dated 04.05.2019, both cheques drawn on the Axis Bank Ltd, Malapparamb branch, for an amount of Rs.10 lakhs each (total Rs.20 lakhs). The said cheques also, when presented for collection, were returned dishonored owing to the paucity of funds in -7- W.P.(C). No. 18060 of 2020 the account maintained by the father of the petitioner. Regarding the same a Criminal case is pending against the father of the petitioner. Regarding the same a Criminal case is pending against the father of the petitioner before the Special Judicial Magistrate Court (Negotiable Instrument Act cases), Kozhikode, as S.T No.1512/2019. In order to coerce me to settle the above cases the petitioner had approached this Hon'ble Court by filing the above writ petition. It is submitted that I had never threatened or harassed the petitioner. I was always resorting to legal remedies against the father of the petitioner. In the circumstances the above writ petition is liable to be dismissed.” 6. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 4 and also the learned counsel for the 5[th] respondent. 7. The Kerala Police Act, 2011 is enacted to consolidate and amend the law relating to the establishment, regulation, powers and duties of the Police Force in the State of Kerala and for matters connected therewith and incidental thereto. Chapter II of the Act deals with duties and functions of Police. Section 3 of the Act deals with general duties of Police. As per Section 3, the Police, as a service functioning -8- W.P.(C). No. 18060 of 2020 category among the people as part of the administrative system shall, subject to the Constitution of India and the laws enacted thereunder, strive in accordance with the law, to ensure that all persons enjoy the freedoms and rights available under the law by ensuring peace and order, integrity of the nation, security of the State and protection of human rights. Section 4 of the Act deals with functions of Police. As per Section 4, the Police Officers shall, subject to the provisions of the Act, perform the functions enumerated in clauses (a) to (s) of Section 4. As per clause (a), the Police Officers shall enforce the law impartially; and as per clause (b), the Police Officers shall protect the life, liberty, property, human rights and dignity of all persons in accordance with the law. 8. Lord Denning in 'The Due Process of law' [First Indian Reprint 1993, Page 102] has described the role of the Police thus; "In safeguarding our freedoms, the police play vital role. Society for its defence needs a well-led, well- -9- W.P.(C). No. 18060 of 2020 trained and well-disciplined force or police whom it can trust, and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice. The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man's house without authority. They must not use more force than the occasion warrants." 9. In **Manohar Lal Sharma v. Principal Secretary** **[(2014) 2 SCC 532]** the Apex Court held that, one of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to the book. The Apex Court reiterated the said principle in **Ankush Maruti Shinde v. State of Maharashtra [(2019) 15 SCC 470]** . 10. There are disputes between the petitioner's father and the 5[th] respondent in relation to certain monitory transactions. The learned counsel for the 5[th] respondent would -10- W.P.(C). No. 18060 of 2020 submit that, as stated in the counter affidavit the 5[th] respondent, he never threatened or harassed the petitioner and he will resort only legal remedies against the petitioner's father. 11. The learned Senior Government Pleader would submit that at present there is no law and order problem and that, in case there is any threat to the life and property of the petitioner and her family members, at the hands of the 5[th] respondent or his supporters, the 3[rd] respondent Station House Officer shall render necessary police assistance. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of, leaving open the legal and factual contentions raised by the petitioner and the 5[th] respondent, by directing the 3[rd] respondent Station House Officer to maintain law and order. In case of any threat to the life or property of the petitioner or her family members, at the hands of the 5[th] respondent or his men, the petitioner shall submit a proper complaint before the 3[rd] respondent Station House Officer, in which event, the said respondent -11- W.P.(C). No. 18060 of 2020 shall take appropriate action on that complaint, taking note of the statutory provisions referred to hereinbefore, and also law laid down by the Apex Court in the decision referred to supra. **Sd/ANIL K.NARENDRAN JUDGE** das -12- W.P.(C). No. 18060 of 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 PHOTOCOPY OF ONLINE ACCOUNT STATEMENT OF PETITIONER. EXHIBIT P2 PHOTOCOPY OF ACKNOWLEDGEMENT MESSAGE FROM MUTHOOT FINCORP. EXHIBIT P3 PHOTOCOPY OF COMPLAINT FILED TO 4TH RESPONDENT.**