P. GOPAKUMARAN NAIR v. State of Kerala and Others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & ## THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944 ## WP(C) NO. 39229 OF 2022 ## PETITIONER: P.GOPAKUMARAN NAIR, AGED 59 YEARS S/O. LATE PARAMESHWARAN NAIR, RESIDING AT MANGALAVAL, VENGANNUR P.O., VIZHINJAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695 523. BY ADVS.SUNIL NAIR PALAKKAT K.N.ABHILASH RITHIK S.ANAND ANU PAUL SREELAKSHMI MENON P. ## RSPONDENTS: - 1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695043. - 2 PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695043. - 3 STATE POLICE CHIEF, POLICE HEAD QUARTERS, C.V. RAMANPILLAI ROAD, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 010. - 4 DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM-695 043 - 5 COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM-695 032 - 6 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, DEPARTMENT OF INTERNAL SECURITY, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI – 110001. - 7 DEPUTY INSPECTOR GENERAL OF POLICE, CENTRAL RESERVE POLICE FORCE (CRPF), OFFICE OF THE DIGP, GROUP CENTRE, CRPF, PALLIPURAM, THIRUVANANTHAPURAM- 695 316. SRI.N.MANOJKUMAR, STATE ATTORNEY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 39229 OF 2022 :: 2 :: ## JUDGMENT Dated this the 5[th] day of December 2022 ## S.MANIKUMAR, C.J. Writ petitioner, who claims to be the Retired Superintendent of Police after completing 32 years of service, has filed instant public interest writ petition seeking for the following reliefs: “i. issue a writ of mandamus or any other appropriate writ, order or directions directing the respondents 1 to 5 to take action against all the protesters for the violence unleashed at the Vizhinjam Police Station and the project site of Adani Vizhinjam Port Pvt. Ltd. On 27.11.2022, including the persons who have instigated the said violence. ii. issue a writ of mandamus or any other appropriate writ, order or directions directing the respondents 1 to 5 to take the assistance of the respondents 6 and 7 in case they are unable to handle the law and order with Kerala Police force at project site of Adani Vizhinjam Port Pvt Ltd. iii. issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent 1 to 5 to hand over the investigation to the National Investigating Agency.” 2. It is submitted by the petitioner that the Vizhinjam International Seaport Project is a major infrastructure project by the Government of Kerala developed on Design, Build, Finance, Operate and Transfer (DBFOT) basis. WP(C) NO. 39229 OF 2022 :: 3 :: 3. It is submitted that while the project is nearing completion, the fisher folk community under the leadership of the Latin Arch Diocese of Thiruvananthapuram started agitation in front of the project site from 16-8-2022 raising the following demands: i. Rehabilitation of families who lost their homes to sea erosion. ii. Effective steps to mitigate coastal erosion. iii. Financial assistance to fisher folk on days weather warnings are issued. iv. Compensation to families of those who lose their lives in fishing accidents. v. Subsidized kerosene and vi. A mechanism in the Muthalappozhi Fishing Harbour in Anchuthengu, Thiruvananthapuram District. 4. According to the petitioner, respondents 1 to 5 are aware that the protesters, backed by Latin Arch Diocese of Thiruvananthapuram and Fishermen Folk, have disrupted the construction activities related to the Adani Vizhinjam Port Pvt. Ltd. for the last four months. Even though directions were also issued by the Hon’ble High Court in W.P.(C)Nos.27571/22 and 27593/22 to ensure that the construction activities are progressing without any WP(C) NO. 39229 OF 2022 :: 4 :: interruption, the agitators have been taking law into their hands, destroying public property and attacking the public. Barricades were broken several times, the main gate of the project site were broken, even the police barricades were thrown into sea. But the police have not taken any action against the illegal agitation. 5. It is further submitted by the petitioner that on 27-11-2022 also, the agitators unleashed violence in the project site breaking the barricades put up by the police, attacked the people, the vehicles bringing materials to the work site, its drivers, public and damaged public properties. The police took five persons into custody in relation to the said violence. In retaliation to that in an unprecedented incidence, the protesters stormed into the Vizhinjam Police Station, attacked the police men and taking them captive, released four persons from the police custody by brutal force. Around 36 police men are injured and hospitalized. The estimated cost to the police alone will come to Rs.85,00,000/-, the damages caused to public property, other than the police station, are yet to be WP(C) NO. 39229 OF 2022 :: 5 :: ascertained. Petitioner’s grievance is that though police have registered around 163 FIRs against about 3000 persons, nothing has been done in furtherance against the agitators. Petitioner alleges that there is inaction on the part of the respondents. Attention of this court has also been brought to Exts.P1 to P3, FIRs registered by the Vizhinjam Police against the alleged protesters under Sections 143, 145, 147, 149, 188, 120B, 153, 447 and 353 of Indian Penal Code, 1860 and 3(2)(e) of the Prevention of Damage to Public Property Act, 1984. 6. Reliance is placed on the decision of the Hon’ble Apex Court in Kodungallur Film Society and another v. Union of India and others reported in (2018) 10 SCC 713 and the decision of this Court in Kodungallur Merchants Association v. State of Kerala reported in 2006 KHC 199 . 7. Mr. N.Manoj Kumar, learned State Attorney, submits that the incidents occurred on 27.11.2022 and 28.11.2022. Cases have been registered by Vizhinjam Police, in connection with the above untoward incidents, and investigation is going on. He further submitted that Kerala WP(C) NO. 39229 OF 2022 :: 6 :: State Police Department is taking all possible effective measures to ensure law and order in the area in question. 8. Heard learned counsel for the petitioner and perused the materials on record. 9. Perusal of the documents produced along with the writ petition reveal that FIR No.1216/2022 of Vizhinjam Police Station, marked as Ext.P1, has been registered on 27.11.2022 against 95 persons and identifiable 1000 persons under Sections 143, 145, 147, 149, 188, 120B, 153, 447 and 353 of Indian Penal Code, 1860. 10. Ext.P2 reveals that FIR No.1217/2022 of Vizhinjam Police Station has been registered on 27.11.2022 against 21 persons and identifiable 500 persons under Sections 143, 145, 147, 149, 188, 120B, 153, 447 and 353 of Indian Penal Code, 1860 and Section 3(2)(e) of the Prevention of Damage to Public Property Act, 1984. 11. Ext.P3 shows that FIR No.1221/2022 of Vizhinjam Police Station has been registered on 28.11.2022 against identifiable women and children (3000 persons) under Sections 143, 145, 147, 149, 188, 120B, 153, 447 and 353 WP(C) NO. 39229 OF 2022 :: 7 :: of Indian Penal Code, 1860 and Section 3(2)(e) of the Prevention of Damage to Public Property Act, 1984. 12. For brevity, contents of Exhibits-P1 to P3 FIRs are reproduced hereunder: ## - The contents of Ext P1 FIR reads thus: “The accused group unjustly ganged up with the knowledge that each of them are members of the same gang, with a common purpose, and holding the banner for an indefinite day and night strike led by Thiruvananthapuram Latin Archdiocese against Adaniport, which threatens the lives and jobs of fishermen, on 16/08/2022 from 11.00 a.m. Thiruvananthapuram Latin Archdiocese bishops and others disrupted the construction work of Adaniport. The construction of Adani Port, which was halted due to the hunger strike, whereas resumption of operations today (26/11/2022) was disrupted by 1 to 15 accused persons, who entered the Adani Port and blocked the road leading to Adani Port with the intention of obstructing the construction of the port in violation of the High Court's order 27571/22 and 27593/22 that the protesters should not obstruct the construction activities of Adani Port, Accused 1 to 15 conspired to create communal tension by blocking the vehicles and accused 1 to 95 and others reached the place in KL 20 P 9367, KL 01 CL7939, KL 01 AX 7561, KL 20 Q 2284, KL 20 P 5982, KL 20 P 585, KL 20 G 1083, KL 01 Z 4379, KL 20 L 8288, KL 20 P 1705, KL 01 CT 6065, KL 20 Q 9874, KL 01 Z 340, KL 20 P 9622, KL 01 Z 340, KL 01 CC 6123, KL 01 CN 5784, KL 20 Q 5071, KL 20 N 6137, KL 20 K 860, KL 20 R 7399, KL 01 CN 8774, KL 20 R 6297, KL 20 M 7445, KL 74 C 0965, KL 01 F 6812, KL 20 C 2796, KL 20 E 7424, KL 20 L 9404, KL 20 H 3670, KL 20 N 869, KL 20 A 6300, KL 20 L 4616, KL 20K 9751, KL 01 CN 1722, KL 19 L 3859, KL 20 P 9858, KL 20 R 6854, KL 20 Q 4890, KL 20 Q 3086, KL 20 N 5009, KL 01 BN 6016, KL 20 R 0075, KL 20 C 6534, KL 20 P 9931, KL 20 R 8642, KL 20 P 880, KL 20 Q 7987, KL 20 P 4715, KL 20 P 0656, KL 20 R 4295, KL 20 Q WP(C) NO. 39229 OF 2022 :: 8 :: 6946, KL 20 K 0411, KL 01 CA 2978, KL 19 H 6389, KL 20 K 9715, KL 20 Q 1569, KL 22 M 2405, KL 20 N 4451, KL 20 H 5981, KL 20 M 7 981, KL 20 P 6461, KL 20 Q 3842, KL 20 K 4241, KL 20 Q 6896, KL 20 L 2916, KL 01 A 4101, KL 20 M 6591, KL 20 G 8791, KL 20 CA 2628, KL 20 1162 The accused persons are from Vizhinjam, Adimalthura, Pulluvila, Puthiyathura parish. Due to the incident a police constable Aneesh suffered injuries on his wrist. The accused persons pelted stones against the police and refused obey to lawful commands of the police.” ## - The contents of Ext P2 FIR reads thus: “The accused persons formed an unlawful assembly with a knowledge that such unlawful assembly would be against the public purpose and with a decision against the Adani port, by holding a banner stating that indefinite strike by the Latin Athirupatha" conducted a strike on 16-08-2022 at about 11 am, and the construction activities of the Adani Port was disrupted by the persons includes Bishops and there activities are in total violation of the orders of the Hon'ble High Court in 27571/2022 27593/2022 wherein it was specifically directed to refrain from strike against the construction activities. The action of the accused person disrupted the resumption of works and they ignited the communal hatred also. The accused person entered into the high security area of the Adani Port and demolished the window glass of the building and cause severe damages to the building and therefore the Government lost 2.20 lakhs which includes the distraction of CCTV worth more 1.5 lakhs. The defendants unjustly ganged up with the knowledge that each of them are members of the gang and with the knowledge that each one of them is a member of the T gang and thinking of their common purpose and holding the banner of Adani day and night strike which threatens the life and work of the fishermen, on 16/08/2022 from 11.00 am, started an indefinite strike against the port led by the Latin Archdiocese of Adani Port, Thiruvananthapuram Latin Archdiocese bishops and other persons, led by the people, came under the WP(C) NO. 39229 OF 2022 :: 9 :: leadership of the Adani Port construction workers, violating the orders of the High Court as per 27571/22 and 27593/22 and with the intention and care to disrupt the construction of the port, on 26/11/202 as per order of Hon'ble High Court to the Government and caused communal tension by blocking it. About 1 to 15 accused conspired and about 16 to 21 accused and 500 accused unjustly ganged up and tried to trespass inside the high security area of Adani Port with stones, sticks and wires to resume on 2[nd] date, but the policemen tried to stop them by using force and pushed the policemen away Obstructing the duty and trespassing in the high security area and trespassing in the building where work was going on, breaking the window panes of the T building and breaking the new tube lights bought and kept for fitting Rs. 30000/- and destroying the paint kept for construction on the floor Rs. 10000/- and fitting Rs. 30000/- for the security of the port. The accused who caused a loss of Rs 1.5 lakh and Rs 2.20 lakh to the Adani Port and the Government by destroying the camera which was being used by the police, are responsible for each other. That the offense under the above sections has been committed.” ## - The contents of Ext P3 FIR reads thus: “Accused persons, with the knowledge of being a member of a gang, conspired to further their common intention, attacked the Vizhinjam police station since the police took the custody of Leo Stanley, Muthappan Pushparaj,Shanki and the 7[th] accused and who were suspected to be involved in case No. 1220/2022 on 27/11/2022 at 18.00 hours, the accused, with the intention attacked and obstructed the duty of the policemen, tried to kill the policemen, stormed the station with deadly weapons such as rods, pieces of table and stones, took the police officers hostage and threatened to burn the policemen inside the station if they did not release them. Shouting obscenities, the accused used iron rods, pieces of table and stones and took the pots and pans sitting in the station compound in front of the station, KL 01 BW 6019 and KL 01 CT 9601 of the Police Department parked at the Police WP(C) NO. 39229 OF 2022 :: 10 :: Department and RRF's Mini Bus No. KL 01 BL 6972 parked on the road near the Police Station and KL 01 BW 3137 of the Tear Gas Unit were vandalized. BK 3833 mini bus was also vandalized and overturned on the road causing a loss of 85 lakh rupees to the police department which includes 5 lakh rupees due to the destruction of of window glasses, lights, water purifier and plant pots of the station and buildings around the station.” 13. It is pertinent to be note that the agitations mentioned in the writ petition occurred on 27.11.2022 and 28.11.2022 and the police has registered FIRs on the respective dates itself. This writ petition is filed on 02.12.2022. 14. That be the position, within five days of the date of registration of the FIRs, instant writ petition is filed seeking the reliefs stated supra. Lot of persons seemed to have been involved in the incident. Certainly, it is the duty of the police to investigate as to who has instigated the alleged violence and to take action against the perpetrators of law. 15. Police authorities are duty bound to investigate the crimes registered and to take appropriate actions against the agitators, who have committed crimes. It is too early in the day to seek for any direction from this Court to take action against all those involved. Hence, the first relief WP(C) NO. 39229 OF 2022 :: 11 :: ## sought for by the petitioner cannot be granted. 16. At this stage, it is relevant to note that the National Investigation Agency (NIA) is an agency constituted under Section 3 of the National Investigation Agency Act, 2008. National Investigation Agency Act, 2008 is an Act to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and for matters connected therewith or incidental thereto. 17. Section 3 of the National Investigation Agency Act, 2008 deals with ‘constitution of National Investigation Agency’ and the same is reproduced hereunder: “ — 3. Constitution of National Investigation Agency. (1) Notwithstanding anything in the Police Act, 1861 (5 of 1861), the Central Government may constitute a special agency to be called the National Investigation Agency for investigation and prosecution of offences under the Acts specified in the Schedule. (2) Subject to any orders which the Central Government may make in this behalf, officers of the Agency shall have throughout India and, subject to WP(C) NO. 39229 OF 2022 :: 12 :: any international treaty or domestic law of the concerned country, outside India, in relation to the investigation of Scheduled Offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences committed therein. (3) Any officer of the Agency of, or above, the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise throughout India, any of the powers of the officer-in-charge of a police station in the area in which he is present for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer-incharge of a police station discharging the functions of such an officer within the limits of his station.” 18. In the light of the specific objects for which National Investigation Agency Act, 2008 has been enacted, the second relief sought for by the petitioner, retired Deputy Superintendent of Police Department, i.e., to take the assistance of the respondents 6 and 7 [Union of India represented by its Secretary, Ministry of Home Affairs, Department of Internal Security, Government of India, North Block, New Delhi and Deputy Inspector General of Police, Central Reserve Police Force (CRPF), Office of DIGP, Group Centre, CRPF, Pallipuram, Thiruvananthapuram] on the premise that the Kerala State Police Force is unable to WP(C) NO. 39229 OF 2022 :: 13 :: handle the law and order at the project site of Adani Vizhinjam Port Pvt. Ltd., is untenable and accordingly, rejected. 19. Though the learned counsel for the petitioner has relied on the decisions rendered by the Hon’ble Apex Court and this court in Kodungallur Film Society’s case and Kodungallur Merchants Association’s case, cited supra, those decisions cannot be made applicable to the case on hand since the facts and circumstances involved therein are different. 20. As regards the third prayer, it is worthwhile to consider the powers of National Investigating Agency, provided in Chapter III of the National Investigation Agency Act, 2008, which read as under: ## “6. Investigation of Scheduled Offences. 1. On receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith. 2. On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible. WP(C) NO. 39229 OF 2022 :: 14 :: 3. On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. 4. Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. 5. Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. 6. Where any direction has been given under subsection (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency. 7. For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation. 7. Power to transfer investigation to State Government.- While investigating any offence under this Act, the Agency, having regard to the gravity of the offence and other relevant factors, may- a. if it is expedient to do so, request the State Government to associate itself with the investigation; or WP(C) NO. 39229 OF 2022 :: 15 :: b. with the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence. 8. Power to investigate connected offences .—While investigating any Scheduled Offence, the Agency may also investigate any other offence which the accused is alleged to have committed if the offence is connected with the Scheduled Offence. 9. State Government to extend assistance to National Investigation Agency .—The State Government shall extend all assistance and co-operation to the Agency for investigation of the Scheduled Offences. 10. Power of State Government to investigate Scheduled Offences. —Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force. 21. Apparently, the offences registered in the FIRs are under Sections 143, 145, 147, 149, 188, 120B, 153, 447 and 353 of Indian Penal Code, 1860 and Section 3(2)(e) of the Prevention of Damage to Public Property Act, 1984. After a thorough investigation, respondents 2 to 5 will be in a position to ascertain the persons, who have instigated the violence, and the perpetrators of law, since identifiable persons have been included in the FIR. WP(C) NO. 39229 OF 2022 :: 16 :: 22. On the facts and circumstances of the case, it is too premature to presume that respondents 2 to 5 are unable to identify the actual perpetrators of law and to take appropriate action. It could also be seen that some of the perpetrators have already been arrested. For the reasons stated supra, we are not inclined to grant any of the reliefs sought for in the writ petition. With the above observations, writ petition is dismissed. sd/S.MANIKUMAR CHIEF JUSTICE sd/SHAJI P. CHALY JUDGE jesxxxx WP(C) NO. 39229 OF 2022 :: 17 :: ## APPENDIX ## PETITIONER’S EXHIBITS - Exhibit P1 TRUE COPY OF THE FIR NO. 1216/2022 OF VIZHINJAM POLICE STATION DATED 27-11-2022 ALONG WITH ENGLISH TRANSLATION OF ITS CONTENTS - Exhibit P2 TRUE COPY OF THE FIR NO. 1217/2022 OF VIZHINJAM POLICE STATION DATED 27-11-2022 ALONG WITH ENGLISH TRANSLATION OF ITS CONTENTS - Exhibit P3 TRUE COPY OF THE FIR NO. 1221/2022 OF VIZHINJAM POLICE STATION DATED 28-11-2022 ALONG WITH ENGLISH TRANSLATION OF ITS CONTENTS ## // TRUE COPY // ## P.S. TO JUDGE