T. R. UDAYAKUMAR 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** ## **W.P.(C) No.25416 OF 2020(B)** ## **PETITIONER:** **T.R.UDAYAKUMAR, AGED 58 YEARS, S/O RAMAKRISHNAPILLAI, RESIDING AT UDAYAGHEETHAM, THIRUNEELAMANNIL, AZHOOR, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.P.HARIDAS SRI.CHERIAN GEE VARGHESE SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.RISHIKESH HARIDAS** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HOME, THIRUVANANTHAPURAM, PIN-695 001.** - **2 STATE POLICE CHIEF, THIRUVANANTHAPURAM,PIN-695 001.** - **3 DISTRICT POLICE CHIEF, PATHANAMTHITTA,PIN-689 645.** - **4 DEPUTY SUPERINTENDENT OF POLICE, DCRB,PATHANAMTHITTA,PIN-689 645.** - **5 INSPECTOR OF POLICE, WOMEN CELL, OFFICE OF THE DISTRICT POLICE CHIEF, PATHANAMTHITTA, PIN-689 645.** - **6 STATION HOUSE OFFICER, PATHANAMTTITTA POLICE STATION, PIN-689 645.** W.P.(C) No.25416 OF 2020(B) -2- **7 SMT.SYAMALAKUMARI, AGED 66 YEARS, PANAKKAL, THIRUNEELAMANNIL, AZHOOR, PATHANAMTHITTA DISTRICT, PIN-689 645.** **R1-R6 SRI.SUNILNATH N.B., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.25416 OF 2020(B) -3- ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding 1 to 6 not to harass him by compelling to pay compensation to the 7[th] respondent or to settle any dispute with the said respondent, by threatening to register crime against the petitioner. The petitioner has also sought for a writ of mandamus commanding 1 to 6 to issue notice under Section 41A of the Code of Criminal Procedure, 1973, in the event of any offence is made out in the complaint filed by the 7[th] respondent. Going by the averments in the writ petition, the 7[th] respondent is a distant relative of the petitioner, who was looking after the petitioner's aged mother and doing some domestic work, on payment of a monthly salary of Rs.5,000/-. The 7[th] respondent borrowed Rs.50,000/- from the petitioner, promising to repay the same after obtaining money from Kudumbasree. After borrowing the amount, the 7[th] respondent abstained from domestic work. In the writ petition, it is alleged that the 7[th] respondent was the accused in C.C.Nos.128 of 1992 and 378 of 1992 on the file of the Judicial First Class Magistrate Court, Pathanamthitta. On 10.09.2020, a person, who claimed to be the lawyer of the 7[th] respondent, ## W.P.(C) No.25416 OF 2020(B) -4- telephoned the petitioner and demanded Rs.5,00,000/- as compensation. Thereafter, on 20.09.2020, the 7[th] respondent demanded compensation from the petitioner for loss of employment. On 30.11.2020, the 4[th] respondent Deputy Superintendent of Police telephoned the petitioner and informed that the 7[th] respondent had lodged a complaint, claiming compensation of Rs.5,00,000/- on the ground that the petitioner has married her. Thereafter, on 17.11.2020, the 5[th] respondent Inspector of Police came to the petitioner's house and threatened his wife and son requiring payment of Rs.5,00,000/- as compensation to the 7[th] respondent. The petitioner submitted Ext.P2 complaint dated 17.11.2020 before the 3[rd] respondent District Police Chief. The petitioner was issued with Ext.P3 notice dated 17.11.2020 of the 5[th] respondent Inspector of Police, requiring him to appear before Women Cell on 18.11.2020. Alleging police harassment, the petitioner has filed this writ petition, seeking the aforesaid reliefs. 2. On 19.11.2020, 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 6 and sought time to get instructions. Urgent W.P.(C) No.25416 OF 2020(B) -5- notice by speed post was ordered to the 7[th] respondent. 3. Along with a memo filed by the learned Government Pleader, a report dated 04.02.2021 of the 5[th] respondent is placed on record, wherein it is stated that the 7[th] respondent filed a petition before the 3[rd] respondent, on 13.10.2020, alleging that the petitioner secretly married her and maintained her as wife upto 05.07.2020. Thereafter, she was precluded from the affairs of the petitioner and thereby the petitioner exploited her sexually. The 3[rd] respondent entered the complaint of the 7[th] respondent in the petition register and forwarded the same to the 5[th] respondent for enquiry and report. As part of enquiry, the petitioner and the 7[th] respondent were summoned to the Women Cell, on 16.11.2020. On that day, the 7[th] respondent appeared before the 5[th] respondent and her statement was recorded. However, the petitioner did not turn up. On 17.11.2020, the 5[th] respondent served Ext.P3 notice on the petitioner for his appearance on 18.11.2020. Accordingly, the petitioner turned up for enquiry on 18.11.2020 and his statement was recorded. As the petition of the 7[th] respondent was centered around the demand for maintenance amount from the petitioner, she was advised to approach the concerned court to settle the dispute and the petition was W.P.(C) No.25416 OF 2020(B) -6- accordingly disposed of on 18.11.2020. In the statement, it is stated that, at no point of time, the 5[th] respondent or any of the official respondents threatened the petitioner or compelled him to pay compensation to the 7[th] respondent. 4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents 1 to 6. Despite service of notice, none appears for the 7[th] respondent. 5. 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. 6. In **Aslam S.** , the Division Bench held further that, even apart from the provisions contained in Section 17E of the Kerala W.P.(C) No.25416 OF 2020(B) -7- 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 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. 7. 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. 8. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on ## W.P.(C) No.25416 OF 2020(B) -8- both sides, this Court finds that by Ext.P3 notice dated 17.11.2020, the petitioner was required to appear before the 5[th] respondent, for enquiry, in connection with a complaint made by the 7[th] respondent on 13.10.2020. Since the petition of the 7[th] respondent was centered around the demand for maintenance amount from the petitioner, the 5[th] respondent advised her to approach the concerned court to settle the dispute and the petition was accordingly closed on 18.11.2020 itself. The specific stand taken by the 5[th] respondent is that, at no point of time, the petitioner was threatened or compelled to pay compensation to the 7[th] respondent. Though the report of the 5[th] respondent is one filed on 08.02.2021, along with the memo filed by the learned Government Pleader, the petitioner has not chosen to file reply affidavit. 9. In such 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** bpr W.P.(C) No.25416 OF 2020(B) -9- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RECEIPT OF BANK TRANSFER BY THE PETITIONER DATED 21.08.2020. EXHIBIT P2 TRUE COPY OF THE COMPLAINT OF THE PETITIONER DATED 17.11.2020 SUBMITTED BEFORE THE RESPONDENTS 2 & 3. EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 17.11.2020 ISSUED BY THE 5TH RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL**