Faizal Valiyakath v. The Station House Officer, Vellayil Police Station & ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943** ## **W.P.(C) No.1310 OF 2021(K)** ## **PETITIONER/S:** **FAIZAL VALIYAKATH, AGED 50 YEARS, S/O USMAN, CRESCENT ORCHID APARTMENTS, P.T.USHA ROAD, VELLAYIL, KOZHIKODE-673032.** **BY ADVS. SRI.SHYAM PADMAN SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR SMT.IRENE ABRAHAM SRI.HARISH ABRAHAM KUM.LAYA MARY JOSEPH** ## **RESPONDENT/S:** **1 THE STATION HOUSE OFFICER, VELLAYIL POLICE STATION, BEACH ROAD, WEST HILL, KOZHIKODE, KERALA-673 005. 2 THE DISTRICT POLICE CHIEF, KOZHIKODE, PAVAMANI ROAD, KOZHIKODE-673 004. 3 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME, SECRETARIAT, THIRUVANANTHAPURAM-695 001 4 HAREESH KELOTH,** 2 W.P.(C) No.1310 OF 2021(K) **NANDANAM, ARAPEEDIKA P.O., VATTOLI BAZAR, BALUSERRY, CALICUT, KERALA-673 612. 5 ADDL.R5.THE STATION HOUSE OFFICER, CHEVAYUR POLICE STATION, CHEVAYUR PO, KOZHIKODE-673012. (ADDL. R5 IMPLEADED AS PER ORDER DATED 19-02-2021 IN IA 1/2021).** **R1-3, R5 BY GOVERNMENT PLEADER R4 BY ADV. SRI.K.P.SUDHEER** ## **OTHER PRESENT:** ## **SRI SUNIL NATH N.B- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.1310 OF 2021(K) 3 ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding 1[st] respondent Station House Officer, Vellayil Police Station not to interfere with the civil rights of the petitioner. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent not to harass the petitioner by any means including calls or unsolicited visit to his house or seek to mediate or interfere in the alleged dispute between the petitioner and the 4[th] respondent. Going by the averments in the writ petition, the petitioner is running a mobile phone accessories shop in Dubai and he is currently residing in Kerala since last three years. The 4[th] respondent was an employee in a shop run by the petitioner's brother in Dubai. The 4[th] respondent was terminated from service for fraud, mismanagement and misappropriation of funds. As part of settlement and termination of employment, some payments were due to the 4[th] respondent. In the writ petition, it is alleged that the 4[th] respondent made the petitioner to sign an agreement for sale of his property and three undated cheques as security for pending payment. The amount legally due to the 4[th] respondent was paid in the year 2019 and as agreed, the agreement for sale W.P.(C) No.1310 OF 2021(K) 4 of property was returned to the petitioner. However, the 4[th] respondent did not return the three cheques and he is now attempting to misuse those cheques for unjust enrichment. The 4[th] respondent, who is an influential person, has instigated the officers of Vellayil Police Station to interfere with civil disputes. Apprehending arrest on the criminal complaint filed by the 4[th] respondent, the petitioner filed Crl.MC.No.451 of 2020 before the Sessions Court, Kozhikode, seeking anticipatory bail. That Crl.MC ended in dismissal by Ext.P1 order dated 21.05.2020, based on the report of the Public Prosecutor that no case has been registered against the petitioner. Alleging that, the action of the 1[st] respondent Station House Officer in interfering with the civil disputes is in violation of Ext.P2 Circular No.4/2012 dated 10.03.2012 issued by the 1[st] respondent State Police Chief, the petitioner has filed this writ petition before this Court seeking the aforesaid reliefs. 2. On 18.01.2021, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions. 3. On 25.01.2021, when this writ petition came up for consideration, the learned Government Pleader, on instructions, W.P.(C) No.1310 OF 2021(K) 5 submitted that a crime has already been registered against the petitioner in Chevayoor Police Station, based on the complaint made by the 4[th] respondent, alleging offence under Sections 406 and 402 of the Indian Penal Code, 1860. The learned Government Pleader took notice on admission for respondents 1 to 3. Urgent notice on admission by speed post was ordered to the 4[th] respondent, returnable within two weeks. The petitioner was directed to file an application to implead the concerned Station House Officer. 4. By the order dated 19.02.2021, this Court allowed I.A.No. 1 of 2021 filed by the petitioner, thereby impleading the Station House Officer, Chevayoor Police Station, as the additional 5[th] respondent. The 4[th] respondent entered appearance through counsel and sought time to file counter affidavit. The learned Government Pleader was directed to get instructions and file statement of the 2[nd] respondent. 5. A counter affidavit has been filed by the 4[th] respondent, opposing the reliefs sought for in this writ petition, producing therewith various documents including Ext.R4(b) complaint filed before the City Police Commissioner and Ext.R4(c) FIR in Crime No.22/2021 of Chevayoor Police Station, which is one registered W.P.(C) No.1310 OF 2021(K) 6 on 13.01.2021, against the petitioner, alleging offence under Section 406 and 420 of the Indian Penal Code, 1860. 6. A statement has been filed by the 2[nd] respondent District Police Chief, wherein it is stated that, based on the complaint made by the 4[th] respondent, crime has already been registered against the petitioner as Crime No.22/2021 of Chevayoor Police Station. On 11.12.2020, the 4[th] respondent lodged a petition before the 2[nd] respondent, against the petitioner, which was forwarded to Vellayil Police Station for conducting preliminary inquiry. Though the 1[st] respondent Station House Officer tried to contact the petitioner over telephone, he was not ready to co-operate with the inquiry. There is no police harassment, as alleged in the writ petition. On inquiry, it was found that the original jurisdiction of the petition lodged by the 4[th] respondent is in Chevayoor Police Station limits. Accordingly, the 2[nd] respondent re-directed the petition to Chevayoor Police Station and the police has registered Crime No.22/2021 and the case is under investigation. 7. On 12.03.2021, when this writ petition came up for consideration, after arguing for sometime, the learned counsel for the petitioner sought adjournment to address arguments with W.P.(C) No.1310 OF 2021(K) 7 reference to the law laid down by a Division Bench of this Court in ## **Aslam S. and another v. State of Kerala and others [2011 (2) KHC 384]** . 8. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3 and additional 5[th] respondent and also the learned counsel for the 4[th] respondent. 9. 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 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. 10. In **Aslam S.** , the Division Bench held further that, even apart from the provisions contained in Section 17E of the Kerala W.P.(C) No.1310 OF 2021(K) 8 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 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. 11. 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. 12. In the instant case, the 4[th] respondent submitted a petition on 11.12.2020, against the petitioner, before the 2[nd] W.P.(C) No.1310 OF 2021(K) 9 respondent District Police Chief, which was originally forwarded to the 1[st] respondent Station House Officer, Vellayil Police Station for conducting preliminary inquiry. Though the 1[st] respondent tried to contact the petitioner over telephone, he was not ready to cooperate with the inquiry. Later, the 2[nd] respondent re-directed that complaint to the additional 5[th] respondent Station House Officer, since the original jurisdiction of that petition is within Chevayoor Police Station. Thereafter, Crime No.22/2021 of Chevayoor Police Station has been registered against the petitioner, on 13.01.2021, alleging offence under Section 406 and 420 of the Indian Penal Code. 13. Though it is alleged in the writ petition that there is harassment from the part of the 1[st] respondent Station House Officer and his subordinates, at the instance of the 4[th] respondent, the petitioner has not chosen to file any complaint before the superior officers alleging police harassment. As can be seen from the materials placed on record, even prior to the filing of this writ petition, Crime No.22/2021 of Chevayoor Police Station has been registered against the petitioner, alleging offence under Section 406 and 420 of the Indian Penal Code, based on a petition filed by the 4[th] respondent before the 2[nd] respondent. In this writ petition, W.P.(C) No.1310 OF 2021(K) 10 the petitioner has not made out any exceptional circumstances of grave and imminent danger, in order to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the ground of police harassment. 14. In the above circumstances, the petitioner is not entitled for the reliefs sought for in this writ petition. The writ petition fails and the same is accordingly dismissed. No order as to cost. **Sd/-** **ANIL K. NARENDRAN** **JUDGE** MIN W.P.(C) No.1310 OF 2021(K) 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE ORDER PASSED BY THE COURT OF SESSION KOZHIKODE DIVISION IN CRL.M.C. NO. 451/2020 DATED 21.5.2020** **EXHIBIT P2** **A TRUE COPY OF THE CIRCULAR ISSUED BY THE STATE POLICE CHIEF, KERALA VIDE CIRCULAR NO. 04/2012 DATED 10.3.2012 REGARDING POLICE INTERFERENCE IN CIVIL DISPUTES.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(A)** **A TRUE COPY OF MEMORANDUM OF ASSOCIATION OF 4[TH] RESPONDENT’S COMPANY** **EXHIBIT R4(B) A TRUE COPY OF PETITION FILED BY THE 4[TH] RESPONDENT BEFORE THE CITY POLICE COMMISSIONER KOZHIKODE** **EXHIBIT R4(C)** **A TRUE COPY OF FIRST INFORMATION REPORT IN CRIME NO. 22/2021 OF CHEVAYOOR POLICE.** **EXHIBIT R4(D) A TRUE COPY OF UNDERTAKING EXECUTED BY THE PETITIONER**