Binu C. Varghese v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942** ## **WP(C).No.26073 OF 2020(H)** ## **PETITIONER:** **BINU C. VARGHESE AGED 47 YEARS S/O. VARGHESE, CHANGELIZHAKEL VEETTIL, KARIMANNOOR KARA AND VILLAGE, THODUPUZHA TALUK, IDUKKI-685 581.** **BY ADVS.** **SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SHRI.PRAVEEN S. SHRI.SUNIL KUMAR A.G SRI.DIPU JAMES SHRI.MATHEW K.T. SRI.K.V.GEORGE SMT.ELSA DENNY PINDIS** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DISTRICT POLICE CHIEF ERNAKULAM, RURAL OFFICE OF THE DISTRICT POLICE CHIEF, ALUVA, ERNAKULAM-682 030.** - **3 THE STATION HOUSE OFFICER KUNNATHUNADU POLICE STATION, ERNAKULAM DISTRICT-683 562.** - **4 THE SUB INSPECTOR OF POLICE KUNNATHUNADU POLICE STATION, ERNAKULAM DISTRICT-683 562.** WP(C)No.26073 of 2020 2 - **5 ANJALI SANKAR D/O. SANKARAN NAIR, VADAKKEDATH HOUSE, NELLAD P.O., KUNNATHUNADU, ERNAKULAM-686 669.** - **6 GAYATHRI GIREESH W/O. GIREESH, VADAKKEDATH HOUSE, NELLAD P.O., KUNNATHUNADU, ERNAKULAM-686 669.** - **7 GIREESH** - **AGE AND FATHERS NAME NOT KNOWN TO PETITIONER, VADAKKEDATH HOUSE, NELLAD P.O., KUNNATHUNADU, ERNAKULAM-686 669.** **R1-4 BY GOVERNMENT PLEADER R6-7 BY ADV. SRI.K.K.AKHIL** **SMT K.AMMINIKUTTY - SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.26073 of 2020 3 ## **JUDGMENT** The petitioner, who is a contractor by profession, who was engaged to undertake certain constructions by the 5[th] respondent, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 to 4 to provide adequate and effective protection from respondents 5 to 7 to the life and property of the petitioner, his equipments and materials kept under the custody of respondents 5 to 7. The petitioner has also sought for a writ of mandamus commanding respondents 2 to 4 to provide adequate and effective protection to remove the equipments and materials from the custody of respondents 5 to 7; and a writ of mandamus commanding respondents 2 to 4 to conduct proper investigation of Cr.No.1094 of 2020 of Kannathunadu Police Station. Going by the averments in the writ petition, there are certain disputes between the petitioner and the 5[th] respondent, in relation to the construction of a residential building undertaken by the petitioner. The 6[th] respondent is the sister of the 5[th] respondent and the 7[th] respondent is the husband of the 6[th] respondent. 4 WP(C)No.26073 of 2020 2. On 26.11.2020, when this writ petition came up for admission, this Court issued notice before admission to the respondents. The learned Government Pleader took notice for respondents 1 to 4 and sought time to get instructions. Urgent notice by special messenger was ordered to respondents 5 to 7. 3. Respondents 6 and 7 have filed a counter affidavit, opposing the reliefs sought for in this writ petition. In the counter affidavit, they have denied various allegations in the writ petition and it is pointed out that the parents of the 5[th] respondent have already filed O.S.No.448 of 2020 before the Munsiff's Court, Perumbavoor, against the writ petitioner, for realising an amount of Rs.8,85,573/- towards damages/compensation/excess amount received. Respondents 6 and 7 are residing about 30 kilometers away from the construction site and they never detained the construction equipments of the petitioner as alleged in the writ petition. 4. A statement has been filed by the learned Senior Government Pleader on behalf of the 3[rd] respondent. Paragraphs 2 and 3 of that statement read thus; WP(C)No.26073 of 2020 5 “2. On 24.10.2020, the petitioner in the writ petition reached the police station and given a statement that the 7[th] and 8[th] respondent illegally restrained, used abusive language and threatened him at 19.30 hrs to 23.30 hrs at their residence and based on the statement a crime as 1094/20 under Sections 342, 294(b), 506 and 34 of IPC has been registered in the police station. Investigation of the case has been completed and charge sheet was submitted before the Judicial First Class Magistrate Court, Kolencherry on 15.11.2020. 3. It is submitted that the petitioner has submitted a petition that the respondents are not permitting him to take away the materials he brought for the construction of the house. Police party was sent to the spot for giving assistance to the petitioner to take away the materials. But the mother of the 6[th] respondent present on the place of construction, raised objection for removing the materials. Since an aged lady raised objection to remove the materials, the police party returned from the spot, convincing the petitioner the inability to provide protection as there a civil dispute exists.” 5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 4 and also the learned counsel for respondents 6 and 7. Despite service of notice, none appears for the 5[th] respondent, WP(C)No.26073 of 2020 6 who is presently abroad. 6. The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for police protection to his life and property, in order to remove his equipments and materials kept in the premises of the 5[th] respondent, where he had undertaken the construction of a residential building for the 5[th] respondent, without any obstruction being caused by respondents 5 to 7. 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 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 WP(C)No.26073 of 2020 7 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-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 WP(C)No.26073 of 2020 8 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. During the course of arguments, the submission made by the learned counsel for respondents 6 and 7 is that, the said respondents have absolutely no objection in the petitioner removing his equipments and materials kept in the construction site and that, they will not cause any obstruction whatsoever. 11. The learned Government Pleader would submit that in case there is any obstruction, at the instance of respondents 6 and 7, the 3[rd] respondent Station House Officer shall render necessary police assistance to enable the petitioner to remove his WP(C)No.26073 of 2020 9 equipments and materials kept in the construction site. 12. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; (i) The 3[rd] respondent Station House Officer shall render adequate and effective protection to the petitioner to remove his equipments and materials kept in the construction site of the residential building belongs to the 5[th] respondent, without any obstruction being caused by respondents 6 and 7. (ii) The petitioner shall submit a request before the 3[rd] respondent, pointing out the date on which he intends to remove his equipments and materials from the construction site in question. (iii) On receipt of that request, the 3[rd] respondent shall do the needful, with notice to respondents 6 and 7. Since Crime No.1094/2020 of Kunnathunadu Police Station registered based on the complaint made by the petitioner against WP(C)No.26073 of 2020 10 respondents 6 and 7 is pending investigation and O.S.No.448 of 2020 filed by the parents of the 5[th] respondent, before the Munsiff's Court, Perumbavoor, against the writ petitioner, for realising an amount of Rs.8,85,573/- towards damages/ compensation/excess amount received is pending consideration, this Court is not expressing anything as to the merits of the rival contentions, which are left open to be raised before appropriate forum. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** WP(C)No.26073 of 2020 11 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF FIRST INFORMATION REPORT (FIR) NO.1094 OF 2020 DATED 21.10.2020 REGISTERED BY 4TH RESPONDENT. EXHIBIT P2 TRUE COPY OF COMPLAINT DATED 12.11.2020 SUBMITTED BY PETITIONER WITH 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF RECEIPT DATED 13.11.2020 ISSUED FROM THE OFFICE OF 4TH RESPONDENT.** ## **RESPONDENTS' EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**