Shiju Joseph v. Moni Mathew and The Circle Inspector of Police, Nedumbassery & The Sub Inspector of Police, Nedumbassery

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **TUESDAY, THE 30[TH] DAY OF AUGUST 2022 / 8TH BHADRA, 1944** **WA NO. 1147 OF 2022** **AGAINST THE JUDGMENT DATED 31.3.2022 IN WP(C).NO.1455/2022 OF THE HIGH** **COURT OF KERALA** ## **APPELLANT/3RD RESPONDENT IN THE WRIT PETITION:** **SHIJU JOSEPH,** **S/O.JOSEPH, AGED 52 YEARS, MUNDAKKAL HOUSE, THIRUVAMKULAM, ERNAKULAM DISTRICT-682 305.** **BY ADVS.M/S. PAUL K.VARGHESE & A.A.GEETHA** ## **RESPONDENTS/WRIT PETITIONER/RESPONDENTS NO.1 & 2 IN THE WRIT PETITION:** - **1 MONY MATHEW, S/O.MATHAI, AGED 50 YEARS, KARAVATEEKUZHIVELI HOUSE, VADAYAMPADY, PUTHENCRUZ P.O., ERNAKULAM DISTRICT-682 308.** - **2 THE CIRCLE INSPECTOR OF POLICE, NEDUMBASSERY POLICE STATION, NEDUMBASSERY P.O., ERNAKULAM DISTRICT-683 111.** - **3 THE SUB INSPECTOR OF POLICE, NEDUMBASSERY POLICE STATION, NEDUMBASSERY P.O., ERNAKULAM DISTRICT-683 111.** **ADV. SRI.SAJEEV KUMAR K.GOPAL FOR R1 SRI.SAIGI JACOB PALATTY, SENIOR GOV. PLEADER FOR R2 & R3** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ. ============================================= W. A. No. 1147 of 2022 _(arising out of the impugned judgment dated 31.3.2022 in WP(C).No. 1455/2022)_ ============================================= Dated this the 30[th] day of August, 2022 ## J U D G M E N T ## ALEXANDER THOMAS, J. The subject matter of challenge in the instant intra court appeal instituted under Sec.5(i) of the Kerala High Court Act, 1958, is the impugned judgment rendered by the learned Single Judge on 31.3.2022 disposing of WP(C). No. 1455/2022 with certain directions. The appellant herein is the 3[rd] respondent in the WP(C) and the respondents herein are the writ petitioner and R-1 & R-2 in the WP(C). 2. Heard Sri.Paul K.Varghese, learned counsel appearing for the writ appellant, Sri.Sajeev Kumar K.Gopal, learned counsel appearing for R-1 in the appeal/writ petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 2 & 3 in the W.A./R-1 & R-2 in the WP(C). 3. The prayers in the instant Writ Petition (Civil) No. 1455/2022 are as follows: W. A. No. 1147/2022 ..2.. - “ - _i. Issue a writ of Mandamus or other appropriate writ, order or directions directing the respondents 1 and 2 not to summon the petitioner to the police station and harass the petitioner so as to settle the civil dispute between the 3[rd] respondent and also not to compel the petitioner to hand over the possession of JS 140, Hitachi Excavator owned by the petitioner to the 3[rd] respondent;_ - _ii. Declare that interference of the respondents 1 and 2 in the civil dispute between the petitioner and the 3[rd] respondent and compelling the petitioner to hand over the possession of JS 140 Hitachi Excavator to the 3[rd] respondent is illegal;_ - _iii. Render such other orders as are deemed fit and proper in the circumstances of the case.”_ 4. A brief reference to the facts of this case would be necessary. R-1 herein will be referred for convenience as the writ petitioner and the appellant herein/R-3 in the WP(C) will be referred as the writ appellant/appellant. The case of the writ petitioner is that he is the owner in possession of an excavator, which in the instant case is a Hitachi Excavator (JS-140) with Engine No.84201483. According to him, he has purchased the said excavator from one Sri.V.P.Sherif, who is said to be the Managing Partner of a firm. His further case is that, R-3 in the WP(C)/the writ appellant, who is a contractor by profession, had hired the said vehicle for certain works and that, after the work was done, the vehicle was taken back by the writ petitioner. Later, he has W. A. No. 1147/2022 ..3.. been directed by the respondent SHO, to appear before the Police Station concerned, on the allegation that a complaint has been received on behalf of the writ appellant that the writ petitioner is now having the possession of said vehicle after committing theft of vehicle owned and possessed by the writ appellant. Further that, the police authorities have thus instructed the writ petitioner to hand over possession of the vehicle to the writ appellant. 5. The writ petitioner would contend that the vehicle lawfully belongs to him and that he had never sold the vehicle to anyone including the writ appellant. Per contra, the contention of the writ appellant/R-3 in the WP(C) is that he had purchased the abovesaid vehicle from the writ petitioner after paying valuable consideration, and Ext.R-3(b) is the agreement for sale dated 7.7.2020 enetered into between the writ petitioner and the writ appellant in the presence of witnesses and that, he has already paid the full consideration of Rs. 16.5 lakhs _[which is the consideration mentioned in Ext.R-3(b)]_ to the writ petitioner and that, both the possession of the vehicle and all the documents in connection therewith, including the tax invoice, was given by the writ petitioner to the writ appellant. That, thereafter, the writ petitioner W. A. No. 1147/2022 ..4.. has unlawfully committed theft of the vehicle at 12.30 P.M. on 28.11.2021, while it was parked in the worksite concerned. 6. In response thereto, the case of the writ petitioner is that earlier the vehicle was hired by the writ appellant from the writ petitioner for doing some work and the amount due thereunder was also not paid to the writ petitioner, and that the writ petitioner has not executed any agreement for sale or any other deed for selling the said vehicle to the writ appellant, and that all the valid documents in relation to abovesaid vehicle, including its key, is with the writ petitioner, etc. It is in the light of these aspects that the writ petitioner has filed the instant Writ Petition (Civil) praying that direction may be given by this Court so as to order that the Police will not harass him under the guise of abovesaid transactions claimed by the writ appellant, as at best, the case projected by the writ appellant can only be a civil dispute between the above parties, for which the Police has no jurisdiction to interfere in the matter. 7. The learned Single Judge, after hearing both sides, has noted his submissions made on behalf of the respondent Police authorities. In para 6 of the impugned judgment in the WP(C), W. A. No. 1147/2022 ..5.. it has been noted, that the learned Government Pleader has submitted on the basis of instructions of the Police authorities, on the basis of Ext.R-3(d) complaint given by the writ appellant, an enquiry was conducted and both the writ appellant and the writ petitioner were summoned to the Police Station, and it was found that the dispute between them involves the question of ownership of the vehicle and that it is essentially in the realm of civil dispute, and that both parties have been relegated to their appropriate remedies, and that nothing further has been done by the Police. In view of these aspects, the learned Single Judge has directed, that the abovesaid factual question relating to ownership of the vehicle cannot be adjudicated by this Writ Court either in writ proceedings or by the Police in criminal complaint, and that the 2[nd] respondent in the WP(C) (The Sub Inspector of Police) cannot interefere in the dispute or require attendance of the writ petitioner or require the writ petitioner to hand over the possession of the vehicle to the 3[rd] respondent, etc. 8. We had earlier directed the respondent Police authorities to furnish instructions to the learned Senior Government Pleader as to whether the Police authorities have conducted any W. A. No. 1147/2022 ..6.. investigation on Ext.R-3(d) complaint given by the writ appellant, and the nature of the action taken thereunder, and also to know the details in regard to the matters referred to in para 6 of the impugned judgment in the WP(C). Today, when the matter has been taken up for consideration, Sri.Saigi Jacob Palatty, learned Senior Government Pleader would submit on the basis of instructions of the respondent Sub Inspector of Police, Nedumbassery Police Station, that, after the receipt of Ext.R-3(d) complaint dated 29.11.2021 submitted by the writ appellant, the Police authorities had entered the said complaint in the Petition Enquiry Register for the Police Station concerned and conducted a petition enquiry in the matter by summoning both the writ appellant and the writ petitioner, and after ascertaining their respective rival pleas, the Police has come to the conclusion that the matter is, essentially, involving the disputed question of ownership of the vehicle and therefore, the matter would come within the realm of disputation of civil matters, etc. and has thus closed the petition enquiry. 9. To this, Sri.Paul K.Varghese, learned counsel appearing for the writ appellant would submit, that a perusal of Ext.R-3(d) W. A. No. 1147/2022 ..7.. complaint dated 29.11.2021 annexed along with Ext.R-3(b) agreement for sale would clearly indicate and disclose the commission of a cognizable offence in terms of Sec.379 of the IPC (theft) and therefore, going by the dictum laid down by the Constitution Bench of the Apex Court in the celebrated decision in _**Lalitha Kumari v. State of Uttar Pradesh** [(2014) 2 SCC 1, para 110],_ it is clearly held that, once the information conveyed to the Police discloses the alleged commission of a cognizable offence, then there is no option, but for compulsory registration of the FIR and to conduct investigation, and that there is no scope for conducting a preliminary enquiry in such a case, etc. Hence, it is contended by Sri.Paul K.Varghese, learned counsel appearing for the writ appellant, that the very procedure adopted by the Police, to conduct petition enquiry instead of registering the FIR, is illegal and improper, etc. That, this cardinal aspect of the matter has not been noted by the learned Single Judge in the impugned judgment. It is thus consequentially prayed by the counsel for the appellant, that this Court may direct the Police authorities to register a crime and then conduct investigation in the matter for the cognizable offence as per Sec.379 of the IPC, etc. W. A. No. 1147/2022 ..8.. 10. The said plea is seriously opposed by Sri.Sajeev Kumar K.Gopal, learned counsel appearing for R-1 in the appeal/writ petitioner. 11. After hearing both sides, we are of the view that it may not be right and proper for us to consider the abovesaid plea made by the writ appellant in these proceedings, in which the master of the plaint is the writ petitioner, and it may not be proper for us to grant relief of that nature to the writ appellant, who happens to be the 3[rd] respondent in the WP(C). If the appellant has such a case, then it is for him to set in motion appropriate proceedings in the manner known to law, so as to impugn the abovesaid stand of the Police in conducting petition enquiry and closing the matter and make a case, in the manner contended by the appellant as above. 12. In the light of these aspects, Sri.Paul K.Varghese, learned counsel appearing for the writ appellant would submit on the basis of instructions of the party, that the appellant may be given leave by this Court to workout his remedies in the manner known to law, including the option of filing a private criminal complaint before the jurisdictional Magistrate Court concerned in terms of Sec.200 of the Cr.P.C., and then to seek directions of the W. A. No. 1147/2022 ..9.. learned Magistrate to register the FIR and conduct investigation in terms of Sec.156(3) of the Cr.P.C. Further that, alternatively, the writ appellant may be given liberty to move the Superintendent of Police in terms of Sec.154(3) of the Cr.P.C. 13. We need not get into the nitty-gritty of the remedies that may be open to the appellant. The rights and interests of both sides would be duly taken care of, and for that purpose, it is ordered that, it is open to the writ appellant to workout his remedies in the manner known to law in case he has a legally tenable case, that the conduct of petition enquiry and the non registration of FIR, on the basis of the complaint in terms of Exts.R-3(d) & R-3(b), is illegal and _ultra vires_ , then it is for the appellant to urge his contentions available in law in that regard in appropriate remedies. 14. Further, it is also ordered that, the observations made by the learned Single Judge, in paras 5 & 7 in the impugned judgment in the WP(C), has to be understood in the context of the specific stand taken by the Police authorities, that they have already closed the matter in relation to Ext.R-3(d) complaint. In other words, while prosecuting such remedies before appropriate forum, all contentions available to both sides are left W. A. No. 1147/2022 ..10.. open and the matter will have to be decided independently, in accordance with law, untrammelled by the observations in the impugned judgment, more particularly paras 5 & 7 thereof. No other orders and directions are called for in this case. With these observations and directions, the above Writ Appeal will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- SHOBA ANNAMMA EAPEN, JUDGE MMG