Shafir Saifudheen v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **W.P.(C) No.1660 OF 2021(F)** ## **PETITIONER/S:** **SHAFIR SAIFUDHEEN, AGED 36 YEARS, S/O M. ABDU RAHIMAN, KAMBALAMKOTTIL HOUSE, PALAPPURAM POST, OTTAPPALAM, PIN-679 103.** **BY ADVS. SRI.PEEYUS A.KOTTAM SHRI. HRITHWIK D. NAMBOOTHIRI** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE CIRCLE INSPECTOR OF POLICE, OTTAPALAM POLICE STATION, PIN-679 103, PALAKKAD DISTRICT.** - **3 HAJARUMMA, AGED 60 YEARS D/O M. ABDU RAHIMAN, KAMBALAMKOTTIL HOUSE, PALAPPURAM POST, OTTAPPALAM , PIN-679 103, PALAKKAD DISTRICT** - **4 MUHAMMED** **AGED 62 YEARS** **S/O M.ABDU RAHIMAN, KAMBALAMKOTTIL HOUSE, PALAPPURAM POST, OTTAPPALAM , PIN-679 103, PALAKKAD DISTRICT** ## **R2 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** ## **SRI SUNIL NATH N.B- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.1660 OF 2021(F) 2 ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent Circle Inspector of Police, Ottappalam Police Station, not to harass him or compel him to surrender any document to the said respondent or to respondents 3 and 4. The petitioner has also sought for an order directing the 2[nd] respondent not to interfere in any civil dispute, for which he has no legal right. 2. Naseer, aged 42 years, brother of the petitioner's mother Nabeesa, is mentally challenged. Nabeesa was the guardian of her brother Naseer. Respondents 3 and 4 are the siblings of Nabeesa and Naseer. Nabeesa died on 28.02.2020. As per Ext.P1 settlement deed bearing No.2990/1992 of the Sub Registrar Office, Ottappalam, Abdul Rahman, father of Nabeesa, assigned 10 Cents of land in Sy.No.211/9A of Ottappalam Village, in the name of Nabeesa, for the benefit of Naseer, who is mentally challenged. In the writ petition, it is alleged that, after the death of Nabeesa, respondents 4 and 5 forcefully taken Naseer to their house, who was being looked after by the petitioner and his siblings. Respondents 4 and 5 are making preparations for selling 10 Cents of property covered by Ext.P1 settlement deed, which W.P.(C) No.1660 OF 2021(F) 3 stands in the name of Naseer, by fraudulent manner. The 3[rd] respondent had earlier filed O.S.No.262 of 1999 before the Munsiff's Court, Ottappalam, for partition, which ended in dismissal by Ext.P2 judgment dated 22.01.2002. The 4[th] respondent is the Branch Secretary of the ruling party. At his instance, the 2[nd] respondent Circle Inspector of Police is insisting the petitioner to handover the original of the Ext.P1 settlement deed, ration card, etc., to the 4[th] respondent. On 17.01.2021, respondents 3 and 4 along with a police man came to the house of the petitioner and threatened him. Alleging that, the 2[nd] respondent has directed the petitioner to handover all documents to the 4[th] respondent by 4 'o'clock on 19.01.2021, the petitioner has filed this writ petition before this Court seeking the aforesaid reliefs. 3. On 21.01.2021, when this writ petition came up for admission, the learned Government Pleader took notice on admission for respondents 1 and 2. Urgent notice on admission by special messenger was ordered to respondents 3 and 4, returnable by 25.01.2021. The learned Government Pleader was directed to get instructions. 4. A statement has been filed by the 2[nd] respondent Circle Inspector of Police, opposing the reliefs sought for in this writ W.P.(C) No.1660 OF 2021(F) 4 petition, wherein it is stated that the 3[rd] respondent, who is a senior citizen aged 63 years, lodged a petition at Ottappalam Police Station on 11.06.2020, alleging that the petitioner and his brother, Shereef, is wrongfully holding the document like Aadhaar card, welfare pension card, ration card and other medical records of her differently abled brother, Naseer, who is presently under her care. Based on that petition, the Police conducted a discrete inquiry, in which it was revealed that, after the death of Nabeesa, the petitioner and his siblings are not interested to take care of Naseer. When the police has taken initiative to shift Naseer to a care centre, the 3[rd] respondent said that she has no difficulty to take care her mentally challenged sibling. In the statement, the 2[nd] respondent has stated that, based on the petition filed by the 3[rd] respondent, he has only summoned the petitioner, under Section 63 of the Kerala Police Act, 2011. Considering the welfare of the mentally challenged person, the 2[nd] respondent directed the petitioner to return medical records and other related documents to the 3[rd] respondent, in order to ensure proper care and treatment to Naseer. 5. The petitioner has filed a reply affidavit, wherein it is stated that he has expressed his full-hearted concern to take care W.P.(C) No.1660 OF 2021(F) 5 Naseer and that, no medical records of Naseer are in his custody. The petitioner is ready to look after Naseer, without selling 10 Cents of property covered by Ext.P1 settlement deed. 6. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents 1 and 2. Despite service of notice, none appears for respondents 3 and 4. 7. 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. 8. 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 W.P.(C) No.1660 OF 2021(F) 6 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. 9. 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. 10. In the instant case, the petitioner has filed this writ petition alleging harassment by the 2[nd] respondent Circle Inspector of Police, Ottappalam Police Station, at the instance of respondents W.P.(C) No.1660 OF 2021(F) 7 3 and 4. In the writ petition, it is alleged that the 2[nd] respondent is threatening the petitioner to handover the original of Ext.P1 settlement deed and other documents of Naseer, to respondents 3 and 4. Respondents 3 and 4, who are senior citizens aged 60 years and 62 year respectively, are the siblings of Naseer, who is mentally challenged. After the death of the petitioner's mother, Nabeesa, Naseer is under the care of the 3[rd] respondent. In the statement filed by the 2[nd] respondent, it is stated that, based on the petition of the 3[rd] respondent, the Police conducted a discrete inquiry. Based on that petition, the petitioner was summoned to resolve the matter. Considering the welfare of the mentally challenged person, the 2[nd] respondent directed the petitioner to return medical records and other related documents to the 3[rd] respondent, in order to ensure proper care and treatment to Naseer. 11. Though it is alleged in the writ petition that there is harassment from the part of the 2[nd] respondent Circle Inspector of Police, at the instance of respondents 3 and 4, the petitioner has not chosen to file any complaint before the superior officers alleging police harassment. None of the superior officers are made parties to this writ petition. Moreover, in this writ petition, the W.P.(C) No.1660 OF 2021(F) 8 petitioner has not made out an 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. 12. 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.1660 OF 2021(F) 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED NO. 2990/92 OF OTTAPALAM SRO STANDS IN THE NAME OF NASEER** **EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT IN O.S. NO. 262/1999 DATED 22.01.2002 OF MUNSIFF COURT, OTTAPALAM** **EXHIBIT P3 TRUE COPY OF THE DISCHARGE CARD ISSUED BY THE TALUK HEADQUARTERS HOSPITAL, OTTAPALAM DATED 19.10.2019 SHOWING THE DISEASE OF THE PETITIONER'S MOTHER.**