Dominic Joseph v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **WP(C).No.3911 OF 2021(L)** ## **PETITIONER:** **DOMINIC JOSEPH AGED 58 YEARS, S/O JOSEPH, MANNIPPARAMPIL HOUSE, EDAKKUNNAM, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT, PIN CODE-686518.** **BY ADVS. SRI.THOMAS J.ANAKKALLUNKAL SRI.ARUN CHANDRAN** ## **RESPONDENTS:** **1 STATE POLICE CHIEF POLICE HEAD QUARTERS, THIRUVANANTHAPURAM, PIN CODE-695014.** - **2 DISTRICT POLICE CHIEF THRISSUR RURAL POLICE DISTRICT, THRISSUR DISTRICT, PIN CODE-680003.** - **3 THE DEPUTY SUPERINTENDENT OF POLICE KUNNAMKULAM, THRISSUR DISTRICT, PINCODE-680503.** - **4 THE STATION HOUSE OFFICER PAZHAYANNUR POLICE STATION, THRISSUR DISTRICT, PIN CODE-680587.** - **5 SAJITH MENON GENERAL MANAGER,** - **NILA QUARRIES PRIVATE LIMITED, PAZHAYANNUR, THALAPPALLY, THRISSUR DISTRICT, PIN CODE-680587.** **R1-R4 BY GOVERNMENT PLEADER SRI SUNIL NATH N.B R5 BY ADV. SHRI.PHILIP J.VETTICKATTU R5 BY ADV. SMT.SAJITHA GEORGE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.3911 OF 2021(L)** 2 ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking an order to direct the 1[st] respondent District Police Chief to conduct an enquiry against respondents 3 and 4 with regard to the averments in the writ petition. The petitioner has also sought for an order directing respondents 3 and 4 to issue notice to the petitioner, if his presence is required for the purpose of investigation into any complaint. Going by the averments in the writ petition, the 5[th] respondent has filed a complaint before the 3[rd] respondent Deputy Superintendent of Police, alleging that the petitioner has cheated his company by selling certain extent of land, which had already been sold to one Roy Kurian in the year 2016. In the writ petition it is alleged that respondents 3 and 4 are harassing the petitioner and compelling him to settle amounts which are allegedly due to the 5[th] respondent. With the said allegations, the petitioner has moved this writ petition seeking the aforesaid reliefs. 2. On 16.02.2021, when this writ petition came up for admission, the learned Government Pleader took notice on admission for respondents 1 to 4. Urgent notice on admission by **WP(C).No.3911 OF 2021(L)** 3 speed post was ordered to the 5[th] respondent, returnable within two weeks. The learned Government Pleader was directed to file statement of the 3[rd] respondent. On 09.03.2021, the learned counsel for the 5[th] respondent sought time to file counter affidavit. Two weeks time granted. 3. A statement has been filed by the 2[nd] respondent District Police Chief. Paragraphs 4 to 7 read thus: “4. It is submitted that the official respondents have not done any harassment to the petitioner. It submitted that, much before filing this writ petition, the 5[th] respondent, filed a complaint on 01.02.2021 before the 3[rd] respondent, against the petitioner stating a dispute with regard to the purchase of land by the company represented by him. The 3[rd] respondent forwarded the complaint to the 4[th] respondent, being the charge Station house area for necessary action. 5. It is submitted that to inquire about the said complaint against the petitioner, the 4[th] respondent called him through mobile phone and informed to be present the police station directly. Thereafter the petitioner informed through a letter that due to physical illness he was unable to come to the police station. 6. It is submitted that, the petitioner was never called by the police frequently to the station nor compelled the petitioner to settle the matter. Police is duty bound to **WP(C).No.3911 OF 2021(L)** 4 ascertain the facts relevant to the complaint matter. It is a fact that the petitioner never came to the police station in connection with the complaint. The allegation raised by the petitioner in the writ petition is that the police compelling him to settle the matter is absolutely false and is totally fabricated one. 7. It is submitted that due to non-co-operation of the petitioner, the said complaint is still pending before the 3[rd] respondent.” 4. The 5[th] respondent has filed a counter affidavit opposing the reliefs sought for in this writ petition, wherein it is stated that since the 4[th] respondent Station House Officer failed to take action on his complaint made against the petitioner, he moved the concerned Magistrate Court. The Magistrate Court forwarded the complaint under Section 156(3) of the Criminal Procedure Code, 1973 and the police registered Crime No.169 of 2021 of Pazhayannur Police Station against the petitioner. 5. Heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 to 4 and also the learned counsel for the 5[th] respondent. 6. In **Aslam S. and another v. State of Kerala and others [2011 (2) KHC 384]** a Division Bench of this Court, in a writ petition seeking reliefs alleging police harassment, held that **WP(C).No.3911 OF 2021(L)** 5 the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India is to be invoked by parties and exercised by the Court only in exceptional circumstances of grave and imminent danger to the person applying for such relief, provided, such a situation is shown and demonstrated to the satisfaction of the Writ Court and it is shown that the alternate remedies under the Kerala Police Act, 1960 are resorted to, but remains ineffective or has turned futile. Such orders cannot be sought for in a routine manner. 7. In **Aslam S.** , the Division Bench held further that, even apart from the provisions contained in Section 17E of the Kerala Police Act, 1960 the law is fairly well settled that every police officer is duty bound to ensure that he shall act in strict conformity with the laws. Firstly, he is a public servant. More importantly, he is one who belongs to a uniformed force. The conditions of service of such an establishment oblige the personnel to act only within the frame work of the Constitution and the laws. In an establishment with a hierarchy of officers in administration, every superior officer is duty bound to ensure that the subordinate does not breach the law and acts only in strict conformity with the laws. This has to be **WP(C).No.3911 OF 2021(L)** 6 so, even by the terms of the Police Act. Therefore, it is all the more the duty of every superior officer in the police establishment to attend to any complaint of citizens of any harassment or other unlawful act by any member of the police force subordinate to such officer. In this view of the matter also, the citizens have abundant avenues to bring complaints before the superior officers in the police establishment. 8. The Kerala Police Act, 2011 contains provisions similar to that dealt with by the Division Bench in **Aslam S** . Section 110 of the said Act deals with the Police Complaints Authority. 9. In the instant case, there are certain disputes between the petitioner and the 5[th] respondent. When the 4[th] respondent Station House Officer failed to take action on the complaint made by the 5[th] respondent, he moved the concerned Magistrate Court. The complaint made by the 5[th] respondent was forwarded under Section 156(3) of the Criminal Procedure Code, which had resulted in registration of Crime No.169 of 2021 of Pazhayannur Police Station, against the petitioner. As per the statement filed by the 2[nd] respondent District Police Chief, based on the complaint made by the 5[th] respondent, the 4[th] respondent Station House Officer has **WP(C).No.3911 OF 2021(L)** 7 only contacted the petitioner over his mobile phone and there was absolutely no harassment, as alleged in the writ petition. Moreover, alleging harassment from the 4[th] respondent Station House Officer, at the instance of the 5[th] respondent, the petitioner has not approached the superior officers with a proper complaint. In this writ petition, the petitioner has not made out an exceptional circumstances of grave and imminent nature in order to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the allegation of police harassment. 10. In such circumstances, the petitioner is not entitled for the relief sought for in this writ petition. The writ petition fails and the same is accordingly dismissed. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** JV **JUDGE** 8 ## **WP(C).No.3911 OF 2021(L)** ## **APPENDIX** **RESPONDENT'S/S EXHIBITS: EXHIBIT R5(A)** **TRUE COPY OF THE PRINTOUTHJ OF THE WHATSAPP MESSAGE SENT BY THE PETITIONER TO RESPONDENT**