Mini Philip v. Joycee Mathew and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** **W.P.(C)No.10134 OF 2020(N)** ## **PETITIONER/S:** **MINI PHILIP, AGED 53 YEARS D/O.T.K.PHILIPPOSE(LATE),THAMARASERIL HOUSE,ERAVINALLOOR KARA,PUTHUPALLY VILLAGE, KOTTAYAM TALUK,KOTTAYAM DISTRICT,PIN-686011. BY ADV. SRI.M.P.MADHAVANKUTTY** ## **RESPONDENT/S:** |**1**|**JOYCEE MATHEW, AGED 42 YEARS**| |---|---| ||**S/O.K.T.MATHEW,KAKKATTU HOUSE,**| ||**ERAVINALLOOR KARA,PUTHUPPALLY VILLAGE,**| ||**KOTTAYAM TALUK,KOTTAYAM DISTRICT,PIN-686011.**| |**2**|**STATION HOUSE OFFICER,**| ||**KOTTAYAM EAST POLICE STATION,**| ||**KOTTAYAM DISTRICT,PIN-686002.**| |**3**|**DISTRICT POLICE CHIEF,**| ||**KOTTAYAM,PIN-686001.**| ||**R1 BY ADV. SRI.ADITHYA RAJEEV**| ||**R1 BY ADV. SHRI.SREEDEV U**| ## **OTHER PRESENT:** ## **SRI P.P. THAJUDHEEN-SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.10134 of 2020 -2- ## **JUDGMENT** The petitioner is residing at Eravinalloor, in 26 Ares of land in Re.Sy.Nos.266/2010 and 166/11 of Puthuppally Village. The petitioner inherited the said property, along with her bother and sister, on the death of her father. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 and 3 to provide adequate and sufficient police protection to her life and property from the illegal threats exerted by the 1[st] respondent. 2. Going by the averments in the writ petition, the father of the 1[st] respondent purchased the property, which is situated on the southern side of the petitioner's property. When the father of the 1[st] respondent attempted to widen the pathway situated on the eastern side of the aforesaid 26 Ares of land, the petitioner's father filed O.S.No.240 of 2010 before the Munsiff's Court, Kottayam, for permanent prohibitory injunction. The said suit was dismissed for default. Thereafter, the father of the 1[st] respondent along with others demolished W.P.(C)No.10134 of 2020 -3- the eastern retaining wall of the aforesaid 26 Ares of land. The petitioner's father filed O.S.No.91 of 2011 before the Munsiff's Court, Kottayam, for fixation of boundary and other incidental reliefs. In the said suit, the father of the 1[st] respondent filed written statement, along with counter claim. The Munsiff's Court dismissed both the suit and the counter claim. The dismissal of the suit was under challenge in A.S.No.139 of 2013 filed by the petitioner and others before the first appellate court, which ended in dismissal. Now, R.S.A.No.478 of 2017 filed by the petitioner and others is pending before this Court, in which this Court granted Ext.P1 order of temporary prohibitory injunction, on 20.09.2017, restraining the father of the 1[st] respondent from taking heavy vehicles through the plaint schedule item No.2 pathway, for a period of one month, was is extended from time to time. On 19.03.2020, the 1[st] respondent trespassed into the disputed pathway and set fire to the dry leaves. He used filthy language against the petitioner and threatened that he will widen the pathway and that, the order of injunction is not W.P.(C)No.10134 of 2020 -4- binding on him. On 15.05.2020, the 1[st] respondent again threatened the petitioner using filthy language. In such circumstances, the petitioner moved Ext.P2 representation dated 20.05.2020 before the 2[nd] respondent Station House Officer seeking Police protection. 3. On 22.05.2020, when this writ petition came up for admission, this Court issued notice before admission to respondents. The learned Government Pleader took notice for respondents 2 and 3. Notice to the 1[st] respondent was ordered to be served through the 2[nd] respondent. 4. On 01.06.2020, this Court admitted the matter on file and issued the following order: “Post on 6.7.2020 for the counter affidavit of the respondents. The learned counsel appearing on behalf of the 1[st] respondent assures this Court that there will be no act from his part threatening the life of the petitioner in any manner. Taking note of the said submission as also the apprehension of the petitioner, I deem it appropriate to direct respondents 2 and 3 to afford adequate and sufficient police protection to the life of the W.P.(C)No.10134 of 2020 -5- petitioner, who is an unmarried lady, and in particular against any threat from the 1[st] respondent or his agents till the next date of posting. The _inter se_ rights of the petitioner and the 1[st] respondent with regard to the pathway that passes on the eastern side of the property of the petitioner shall be decided by this Court in R.S.A. No.478/2017, which is stated to be pending.” 5. A counter affidavit has been filed by the 1[st] respondent opposing the reliefs sought for in this writ petition. The 3[rd] paragraph of the counter affidavit reads thus: “3. It is trite in law that writ jurisdiction seeking adequate and sufficient police protection could not be invoked for executing an order passed by the civil suit by and between the parties. It is further pointed out that a person could not approach the High Court for the purpose of determining such disputed questions of fact which was beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction. It is further submitted that the allegation in the writ petition that this respondent have violated the right to life of the petitioner is false and hence denied. The respondent has not committed any acts as alleged by the W.P.(C)No.10134 of 2020 -6- petitioner and further undertakes that he shall not cause any harm to the life of the petitioner.” 6. The petitioner has also filed a reply affidavit. 7. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent and also the learned Senior Government Pleader for respondents 2 and 3. 8. 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 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 W.P.(C)No.10134 of 2020 -7- 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. 9. 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, welltrained 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." 10. In **Manohar Lal Sharma v. Principal Secretary** **[(2014) 2 SCC 532]** the Apex Court held that, one of the W.P.(C)No.10134 of 2020 -8- 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]** . 11. During the course of arguments, the learned counsel for the 1[st] respondent would submit that, as stated in paragraph 3 of the counter affidavit, the 1[st] respondent shall not cause any harm to the life of the petitioner. The learned counsel would also submit that the 1[st] respondent has no intention to take law into his own hands. 12. Having considered the submission made by the learned counsel on both sides, this writ petition is disposed of recording the above undertaking of the 1[st] respondent. In case of any threat from the 1[st] respondent or his men, the 2[nd] respondent Station House Officer shall afford adequate and sufficient police protection to the life and property of the W.P.(C)No.10134 of 2020 -9- petitioner. The _inter se_ rights of the petitioner and the father of the 1[st] respondent with regard to the pathway on the eastern side of the property of the petitioner shall be decided in R.S.A. No.478 of 2017, which is pending before this Court. No order as to costs. Sd/- **ANIL K.NARENDRAN JUDGE** das W.P.(C)No.10134 of 2020 -10- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER IN I.A.NO.2413/2017 IN R.S.A.NO.478/2017 BEFORE THIS HON'BLE COURT DATED 20.09.2017** **EXHIBIT P2** **TRUE COPY OF THE REPRESENTATION BEFORE THE 2ND RESPONDENT DATED 20.05.2020.** **EXHIBIT P3 TRUE COPY OF THE INTERIM ORDER DATED 23.10.2017 IN I.A.NO.2413/2017 IN R.S.A. NO.478/2017** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(a) TRUE COPY OF THE LAND TAX RECEIPT DATED 29-06-2020 ISSUED BY THE VILLAGE OFFICER, PUTHUPALLY.**