Moideen.T.P. and Muhammadali M.K. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **WP(C).No.28969 OF 2020(U)** ## **PETITIONERS:** |**1**|**MOIDEEN.T.P.,**| |---|---| ||**AGED 57 YEARS**| ||**S/O. MAMMUNNI, AMBALAVATTAYIL CHANGALEERI P.O.**| ||**KUMARAMPUTHOOR, MANNARKKAD, PALAKKAD.**| |**2**|**MUHAMMADALI M.K.,**| ||**AGED 59 YEARS**| ||**S/O. ABDULLA @ SETHUTTY,**| ||**MULAYANKAI HOUSE,KUMARAMPUTHOOR P.O,**| ||**MANNARKKAD, PALAKKAD.**| ||**BY ADV. SHRI.T.K.SANDEEP**| ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT,**| ||**TRIVANDRUM 695 001.**| |**2**|**THE DISTRICT POLICE CHIEF,**| ||**DISTRICT POLICE OFFICE, PALAKKAD 678 001.**| |**3**|**THE STATION HOUSE OFFICER,**| ||**MANNARKKAD POLICE STATION, MANNARKKAD ,**| ||**PALAKKAD DISTRICT 678 581.**| |**4**|**ASSISTANT SUB INSPECTOR OF POLICE,**| ||**MANNARKKAD POLICE STATION, MANNARKKAD,**| ||**PALAKKAD DISTRICT 678 581.**| -2- WP(C).No.28969 OF 2020(U) **5 BIJU,AGED 38 YEARS S/O. PUTHANPURAYIL VELU, PALLIKUNNU, PAYYANEDAM P.O. KUMARAMPUTHOOR, MANNARKKAD, PALAKKAD DISTRICT 678 581. 6 LAKSHMI, AGED 35 YEARS, W/O. BIJU, PALLIKUNNU, PAYYANEDAM P.O. KUMARAMPUTHOOR, MANNARKKAD, PALAKKAD DISTRICT 678 581.** **R1-3 BY GOVERNMENT PLEADER SRI.SUNILNATH N B R5-6 BY ADV. SRI.VINOD KUMAR.C** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- WP(C).No.28969 OF 2020(U) ## **JUDGMENT** The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 4[th] respondent Assistant Sub Inspector of Police not to harass them and their family members. The petitioners have also sought for a writ of mandamus commanding the 3[rd] respondent Station House Officer to oversee that no harassment is meted out to them and their family. Going by the averments in the writ petition, the petitioners have entered into a partnership agreement dated 01.02.2020 with the 6[th] respondent, who is the wife of the 5[th] respondent, for starting a medical shop and clinic, by name, Focus Pharma. Believing the words of the 5[th] respondent, the petitioners invested an amount of Rs.6,00,000/- each in food processing business. Later, the petitioners demanded back the said amount. On 15.10.2020, the 5[th] respondent returned Rs.50,000/- each and thereafter, a further sum of Rs.30,000/each, on 20.10.2020. The 1[st] petitioner filed O.S.No.208 of 2020 and the 2[nd] petitioner filed O.S.No.209 of 2020 before -4- ## WP(C).No.28969 OF 2020(U) the Musiff's Court, Mannarkkad against the 5[th] respondent and obtained an ex-parte order of attachment, on 11.12.2020. In the writ petition, it is alleged that at the instance of the 6[th] respondent, the 4[th] respondent Assistant Sub Inspector of Police of Mannarkkad Police Station started summoning the petitioners to the police station for settlement of the disputes with the 5[th] respondent. On 20.12.2020, the 4[th] respondent has given an ultimatum to withdraw the civil cases pending against the 5[th] respondent, failing which the petitioners will be implicated in criminal cases. Alleging police harassment, they have approached this Court in this writ petition seeking the aforesaid reliefs. 2. On 22.12.2020, when this writ petition came up for admission, notice before admission was ordered to the respondents. The learned Government Pleader took notice for respondents 1 to 4. Urgent notice by speed post was ordered to respondents 5 and 6. This Court directed the 3[rd] respondent to notice Section 63 of the Kerala Police Act, 2011 which details the circumstances under which the Station House -5- ## WP(C).No.28969 OF 2020(U) Officer can interfere in a dispute between individuals or groups. It was ordered that, if the presence of the petitioners are required for the purpose of investigation in any crime registered, the provisions of the Code of Criminal Procedure, 1973 relating to issuance of notice to secure their appearance shall be strictly complied with. 3. On 09.02.2021, when this writ petition came up for consideration, respondents 5 and 6 entered appearance through counsel and sought time to file counter affidavit. 4. A statement has been filed by the 3[rd] respondent Station House Officer, opposing the reliefs sought for in this writ petition. Paragraphs 3 and 4 of the said statement read thus; “3. On 13.12.2020, Sunday, the petitioners locked the medical shop and in this regard the 6[th] respondent filed a petition at Mannarkkad Police Station on 26.12.2020 and the same was registered at Mannarkkad Police Station as IAPS Petition No.153363/2020. Medical Shop, being the essential service, the petitioners and the 6[th] respondent was called to the police station for the disposal of the complaint and it is revealed that, O.S No.208/20 and WP(C).No.28969 OF 2020(U) -6- O.S No.209/20 is pending before the Hon'ble Munsiff Court, Mannarkkad and the complaint filed by the 6[th] respondent was disposed by directing them for seeking orders from the Civil Court. 4. The 4[th] respondent, who was the Subordinate Officer working under my office and PRO of the Mannarkkad Police Station, did not harassed the petitioners and the family members except by called the petitioners for enquiring about the petition lodged by the 6[th] respondent. The allegations raised against the 4[th] respondent in this writ petition was baseless and the petition lodged by the 6[th] respondent was disposed by the 3[rd] respondent.” 5. Heard the learned counsel for the petitioners, the learned Government Pleader appearing for respondents 1 to 4 and also the learned counsel for respondents 5 and 6. 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 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 -7- ## WP(C).No.28969 OF 2020(U) 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 so, even by the terms of the Police Act. Therefore, it -8- ## WP(C).No.28969 OF 2020(U) 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 this writ petition, the petitioners have no case that they have filed any complaint before the superior officers about harassment or other unlawful act by the 4[th] respondent Assistant Sub Inspector Police of Mannarkkad Police Station, at the instance of respondents 5 and 6. They have also not approached the Police Complaints Authority constituted under Section 110 of the Kerala Police Act, 2011, raising their complaint against the 4[th] respondent. In the statement filed by the 3[rd] respondent Station House Officer, it is stated that -9- WP(C).No.28969 OF 2020(U) based on the complaint filed by the 6[th] respondent regarding locking of medical shop by the petitioners, both parties were called to the police station. On noticing the pendency of civil suits before the Munsiff's Court, Mannarkkad, parties were directed to seek appropriate orders from that court. Though the statement filed by the 3[rd] respondent is one dated 18.01.2021, the petitioners have not chosen to file any reply affidavit. 10. In such circumstances, the petitioners are 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** AV/03/03 -10- WP(C).No.28969 OF 2020(U) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF PLAINT IN O.S. NO.**| |---|---| ||**208/2020 ON THE FILES OF MUNSIFF**| ||**COURT, MANNARKKAD.**| |**EXHIBIT P2**|**A TRUE COPY OF PLAINT IN O.S. NO.**| ||**209/2020 ON THE FILES OF MUNSIFF COURT**| ||**MANANRKKAD.**|