Paragon Sea Food Private Limited & Joseph Antoney v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942** ## **W.P.(C)No.20776 OF 2020(V)** ## **PETITIONERS:** - **1 PARAGON SEA FOOD PRIVATE LIMITED WITH REGISTERED OFFICE AT P.B.NO.817, THOPPUMPADY, KOCHI 682 005 WITH PROCESSING UNIT AT AROOR, NEAR RAILWAY OVER BRIDGE, AROOR, ALAPPUZHA REPRESENTED BY MANAGING DIRECTOR JOSEPH ANTONEY, AGED 52, S/O.A.G.ANTONEY, RESIDING AT ANANDSSERY HOUSE, MUNDAMVELI P.O., KOCHIN-682 507** - **2 JOSEPH ANTONEY AGED 52 YEARS S/O.A.G.ANTONEY, RESIDING AT ANANDSSERY HOUSE, MUNDAMVELI P.O., KOCHIN 682 507** - **BY ADV. SRI.MILLU DANDAPANI** ## **RESPONDENTS:** - **1 THE STATE POLICE CHIEF KERALA POLICE HEADQUARTERS, THIRUVANANTHAPURAM, KERALA - 695 010.** - **2 THE ASSISTANT COMMISSIONER MOULANA AZAD ROAD, MATTANCHERY, ERNAKULAM-682 002** - **3 THE STATION HOUSE OFICER THOPPUMPADY, HARBER ROAD, KARUVELIPADY, KOCHI-682 005** - **4 BASIL D CAUTHO, AGED 32 YEARS S/O.BONY, RESIDING AT 1/723, BISHOP'S GARDEN LANE, PATTALAM, FORT COCHIN 682 001.** - **R1-R3 BY SRI P.P.THAJUDHEEN, SR GOVERNMENT PLEADER R4 BY ADV. SRI.SAM ISAAC POTHIYIL R4 BY ADV. SMT.TINU JOHNSON R4 BY ADV. SHRI.VISHNU DAS R4 BY ADV. SRI. SRUTHI DAS R4 BY ADV. SHRI.JOMON P MOHAN R4 BY ADV. SHRI.PHILIP ARUN M.N.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## W.P.(C)No.20776 OF 2020(V) 2 ## **JUDGMENT** The 1[st] petitioner is a company registered under provisions of the Companies Act and the 2[nd] petitioner is its Managing Director. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3, namely, the State Police Chief; the Assistant Commissioner of Police, Mattanchery; and the Station House Officer, Thoppumpady, to ensure that they are not interfering with the fundamental rights of the petitioners, on the complaint of a civil nature filed by the 4[th] respondent and that, there is no harassment to the petitioners by respondents 2 and 3, in connection with that civil dispute. 2. Going by the averments in the writ petition, the 2[nd] petitioner being the Managing Director of the 1[st] petitioner company, which is a seafood exporter, procured 34,000 Kg thelly shrimp from the 4[th] respondent, during the period from 19.05.2020 to 11.07.2020, for export purpose. The original amount agreed for the supply of thelly shrimp by the 4[th] respondent was Rs.38,28,000/-. The 4[th] respondent was paid Rs.46,00,000/- by RTGS. The excess payment of Rs.7,72,000/- was made, according ## W.P.(C)No.20776 OF 2020(V) 3 to the petitioners, to adjust an amount of Rs.5,34,000/- borrowed from the 4[th] respondent, and also as a gratuitous payment for the supply of shrimp in spite of COVID-19 pandemic. The 4[th] respondent started demanding a sum of Rs.15,00,000/- towards share of profit. He started to pester the petitioners with a demand for additional amount, with the aid of local politicians. The 2[nd] petitioner approached the Station House Officer, Aroor Police Station with Ext.P1 complaint dated 12.09.2020, against the 4[th] respondent, which was followed by Ext.P2 complaint made by the 2[nd] petitioner dated 14.09.2020, before the 3[rd] respondent Station House Officer, Thoppumpady Police Station. Based on the complaint, the 4[th] respondent was asked to appear before the Police, on 15.09.2020. According to the petitioners, on 15.09.2020, the 2[nd] petitioner received a call from the 3[rd] respondent Station House Officer that he should come to Thoppumpady Police Station, as instructed by the 2[nd] respondent Assistant Commissioner of Police. The 3[rd] respondent divulged that the 4[th] respondent is a close friend of the 2[nd] respondent and therefore, the matter has to be settled in a mediation. When the 2[nd] petitioner was not agreeable for the same, he was threatened with dire consequences. ## W.P.(C)No.20776 OF 2020(V) 4 Alleging that the 3[rd] respondent is misusing his official powers at the instance of respondents 2 and 4 to intervene in a civil dispute, the petitioner has approached this Court in this writ petition, seeking the aforesaid reliefs. 3. On 06.10.2020, when this writ petition came up for admission, the learned Government Pleader took notice for respondents 1 to 3. Urgent notice by speed post was ordered to the 4[th] respondent. The learned Government Pleader sought time to get instructions. 4. A statement has been filed by the 2[nd] respondent, opposing the reliefs sought for in this writ petition. Paragraph 3 of that statement reads thus: “3. The second respondent or any other Police Officer harassed the petitioner as alleged in the writ petition. The 4[th] respondent has filed a complaint before the second respondent on 05.09.2020. The said complaint was forwarded to the Inspector of Police, Thoppumpady for inquiry and further action. It is revealed that the said complaint was closed as the dispute involved in the complaint is purely in civil nature. All other allegations raised by the petitioner are absolutely incorrect.” 5. The 4[th] respondent has filed a counter affidavit, opposing the reliefs sought for in this writ petition. Paragraph 3 of that W.P.(C)No.20776 OF 2020(V) 5 ## counter affidavit reads thus; “3. The petitioner lodged a complaint before the Station House Officer, Adoor Police Station against the 4[th] respondent on 12.09.2020 only to prevent the 4[th] respondent from approaching the petitioner for the cheated money. On 14.09.2020 the 4[th] respondent lodged a complaint before the 3[rd] respondent. Even the 3[rd] respondent failed to provide receipt to the 4[th] respondent to provide an opportunity to the petitioner to defend the case of the 4[th] respondent. There is clear collusion between the petitioner and respondents 1 to 3 as the 4[th] respondent came to know that justice shall not be done to the 4[th] respondent by the 3[rd] respondent against the petitioner. The 4[th] respondent approached the Judicial First Class Magistrate Court-II, Kochi under Sections 190, 200, 156(3) of Criminal Procedure Code as CMP No.1342/2020 and after necessary enquiry by the learned Magistrate and documents produced by the 4[th] respondent, the learned Magistrate was pleased to forward the complaint to the 3[rd] respondent and the 3[rd] respondent was pleased to register crime against the petitioner on 20.11.2020 as Crime No.1104/2020 against the petitioner herein alleging offences punishable under section 406, 420 of Indian Penal Code. The true copy of FIR of Thoppumpady Police Station is produced herewith and marked as Exhibit-R4(a).” 6. Heard the learned counsel for the petitioners, the learned Senior Government Pleader for respondents 1 to 3 and also the learned counsel for the 3[rd] respondent. W.P.(C)No.20776 OF 2020(V) 6 7. The petitioners are before this Court in this writ petition, alleging police harassment at the hands of respondents 2 and 3, in relation to a monetary dispute with the 4[th] respondent. From the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court finds that, the 2[nd] petitioner lodged Ext.P2 complaint dated 14.09.2020 before the 3[rd] respondent Station House Officer, against the 4[th] respondent. The 4[th] respondent lodged another complaint before the 2[nd] respondent Assistant Commissioner of Police, on 05.09.2020, against the 2[nd] petitioner, which was forwarded to the 3[rd] respondent Station House Officer for inquiry and further action. The complaint made by the 4[th] respondent against the 2[nd] petitioner was closed stating that the dispute involved is purely civil in nature. 8. In the counter affidavit filed by the 4[th] respondent, it is alleged that, the 3[rd] respondent Station House Office did not even provide a receipt for his compliant lodged on 14.09.2020 against the 2[nd] petitioner, as there is collusion between the 2[nd] petitioner and respondents 1 to 3. The 4[th] respondent approached the Judicial First Class Magistrate Court-II, Kochi, under Sections 190, 200 and 156(3) of the Code of Criminal Procedure, 1973 in CMP No.1342 of W.P.(C)No.20776 OF 2020(V) 7 2020, which was forwarded to the 3[rd] respondent, who has registered Crime No.1104/2020 of Thoppumpady Police Station, against the 2[nd] petitioner, alleging offences punishable under Sections 406 and 420 of the Indian Penal Code, as evidenced by Ext.R4(i) FIR. 9. In the statement filed on behalf of the 2[nd] respondent, it is stated that there is no police harassment as alleged in the writ petition. The allegations contained in Ext.P2 complaint made by the 2[nd] petitioner, before the 3[rd] respondent Station House Officer, are against the 4[th] respondent. That complaint is one dated 14.09.2020. Immediately thereafter, on 18.09.2020, the petitioners have moved this writ petition alleging police harassment by respondents 2 and 3. The petitioners have not chosen to file any complaint before the 1[st] respondent against respondents 2 and 3, alleging police harassment. 10. 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 W.P.(C)No.20776 OF 2020(V) 8 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. 11. 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 is all the more the duty of every superior officer in the police establishment to ## W.P.(C)No.20776 OF 2020(V) 9 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. 12. 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. 13. Having considered the pleadings and materials on record, this Court finds that the petitioners have not made out an expectational circumstances of grave and imminent danger to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking reliefs alleging police harassment, without availing the alternative remedy available under the Kerala Police Act, 2011. In the result, the writ petition fails for the aforesaid reason and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K.NARENDRAN JUDGE** JV W.P.(C)No.20776 OF 2020(V) 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 12/9/2020 SUBMITTED BEFORE THE SHO AROOR EXHIBIT P2 A TRUE COPY OF THE COMPLAINT DATED 14.9.2020 FILED BEFORE THE CIRCLE INSPECTOR OF POLICE, PALLURUTHI. EXHIBIT P3 TRUE COPY OF THE COMPLAINT FILED BY THE 4TH RESPONDENT BEFORE THE ASSISTANT COMMISSIONER OF POLICE, MATTANCHERRY ON 05/9/2020. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 02/12/2020 IN CRL.MC.2311/2020 ONN THE FILES OF HON'BLE SESSION'S COURT, ERNAKULAM. RESPONDENT'S/S EXHIBITS: EXHIBIT R4(1) TRUE COPY OF FIR DATED OF THOPPUMPADY POLICE STATION**