W.P.(C) Nos.23918, 23919 & 23920 of 2018

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 17TH DAY OF JULY 2018 / 26TH ASHADHA, 1940** **WP(C).No. 23918 of 2018** ## **PETITIONER(S)** **------------** **SHAHARBAN, W/O.MOHAMMED SALEEM, CHAMAKKALAYIL HOUSE, MULLAMKUZHI, CHUNGAMVELI, ERAMATHALA P.O., ERNAKULAM - 683112.** ## **BY ADV.SRI.A.RAJASIMHAN** ## **RESPONDENT(S):** **-------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME, SECRETARIAT, STATUE, THIRUVANTHAPURAM - 695001.** ## **2. STATE POLICE CHIEF,** **POLICE HEAD QUARTERS, THIRUVANANTHAPURAM - 695003.** ## **3. LALJI,** **ASSISTANT COMMISSIONER OF POLICE, ERNAKULAM CENTRAL, ERNAKULAM - 682031.** ## **4. SURESH KUMAR,** **ASSISTANT COMMISSIONER OF POLICE, CONTROL ROOM, REVENUE TOWER, ERNAKULAM - 682032.** ## **5. JOSEPH SAJAN,** **SUB INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM - 682031.** **R1 & R2 BY STATE ATTORNEY SRI.K.V.SOHAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-07-2018, ALONG WITH WPC.NOS.23919/2018 & 23920/2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** **03.8.2018** ## **P.R.RAMACHANDRA MENON &** ## **DEVAN RAMACHANDRAN, JJ.** ============================ W.P.(C) Nos.23918, 23919 & 23920 of 2018 ============================ Dated this the 17[th] day of July, 2018 ## **JUDGMENT** ## **Ramachandra Menon, J.** These matters are connected by a common thread of alleged harassment of the petitioners by the respondent police officers who stand impleaded in their personal capacity. The petitioners complain before this Court that their kith and kin have been taken into illegal custody by the respondent Police in connection with Crime No.1548/2018 of the Central Police Station ('Abhimanyu murder case') and that they have been detained for hours together even without permitting them to answer the calls of nature. The petitioners also seek for taking appropriate disciplinary action against the police officers, besides seeking for payment of compensation. 2. When the matters were filed before this Court, a doubt was noted by the Registry as to whether the prayers with respect to the alleged illegal detention, coupled with the prayers for taking disciplinary action and also for granting compensation W.P.(C) No.23918 of 2018 & con.cases. 2 would lie together in the writ petition. The matter was listed before this Court in the 'defect list' and this Court directed the Registry to have them numbered, leaving the question open to be considered in the due course. 3. Heard Sri.A.Rajasimhan, the learned counsel appearing for the petitioners in all the cases and Sri.Sohan, the learned State Attorney, at length. 4. The crux of the contentions raised by the petitioner in **W.P.(C) No.23918/2018** is that the Police is after her sons by name Arif Bin Saleem and Adil Bin Saleem as if they were having some involvement in 'Abhimanyu murder case'. The Police is harassing the family of the petitioner like anything and on 04.07.2018, at about 10.30 a.m., her husband Mohammed Saleem was taken into custody. After illegally detaining him for quite long, he was made an accused in Crime No.1564/2017 of the Central Police Station, which was in relation to the offences stated as committed by 7 identified persons and several unidentified persons, in connection with an agitation ('High Court March') conducted pursuant to the verdict passed by this Court in **Asokan.K.M. v. Superintendent of Police,** W.P.(C) No.23918 of 2018 & con.cases. 3 **Malappuram & others** [2017 (3) KHC 73]. He now stands remanded to judicial custody. The petitioner contends that the police took the petitioner's younger son Amir Bin Saleem into custody on 13.07.2018 and he was detained in the police station. On the next day, the petitioner was summoned to the police station along with her daughter Asima Mariyam and they were allegedly detained there till 9 p.m. It is stated that they have been intimidated and threatened of dire consequences stating that the son Amir Bin Saleem will be released only after getting custody of Arif Bin Saleem, the elder son, failing which, the younger son Amir Bin Saleem also will be made an accused in the murder case. This made the petitioner to rush to this Court by filing the above writ petition, seeking for the following prayers: “1. Issue a writ of mandamus, or any other writ, order or direction, directing the respondents 2 to 5 not to harass the petitioner and her family. 2. Direct the 2[nd] respondent to inquire into the allegations of illegal detention, police harassment and criminal intimidation alleged in this writ petition and to take disciplinary as well as criminal proceedings against the respondents 3 to 5. 3. Issue a writ of mandamus, or any other writ, order or direction, directing the respondents 3 to 5 to release the petitioner's son Amir Bin Saleem from detention immediately. 4. Issue a writ of mandamus, or any other writ, W.P.(C) No.23918 of 2018 & con.cases. 4 order or direction, directing the 1[st] respondent to pay compensation fixed by this Court to the petitioner, son Amir Bin Saleem and daughter Asima Mariyam for their above illegal detention. 5. Issue such other order or directions which this Hon'ble Court deem fit and proper in the interest of justice.” 5. Almost similar is the contention raised by the petitioner in **W.P.(C)No.23919/2018** . There, the husband of the petitioner, by name Shameer is alleged to have some involvement in 'Abhimanyu' murder case. The petitioner is living along with her little children aged 9, 6 and 4 years. Absolutely for no reason, was she summoned to the Palluruthy Police Station on 12.07.2018 and thereafter, she was taken to the Women Police Station, Ernakulam and was detained there for quite long. She was summoned to the Central Police Station, Ernakulam on the next day by about 10.30 a.m. and was made to wait there till 8 p.m. She was summoned again on 15.07.2018 and was illegally detained till 8.30 p.m. At that time, she was threatened that she would also be implicated and remanded to custody in connection with the 'Abhimanyu murder case'. She has been instructed to appear before the Police on 16.07.2018. Her father, by name Majeed, has already been taken into custody W.P.(C) No.23918 of 2018 & con.cases. 5 by the Police and is continuing in illegal detention. This made the petitioner to approach this Court, seeking for almost similar reliefs as in the former case besides the prayer to direct respondents 3 to 5 to release the petitioner's father by name Majeed from the illegal detention forthwith. 6. In **W.P.(C) No.23920/2018** , the petitioner's husband, by name Manaf, is stated as wanted by the Police in connection with 'Abhimanyu murder case', where investigation is being done by the Central Police Station, Ernakulam. According to the petitioner, she is subjected to illegal detention, threat and harassment and she is not permitted to live peacefully with her daughter aged about 18 years. The petitioner points out that the Police had summoned the petitioner on 11.07.2018 to the Palluruthy Police station, where she was detained till 7.30 p.m. On the next day, she was summoned in the morning and was made to wait till 5 p.m. She was summoned again on 14.07.2018 to the Central Police Station and was made to remain there from 11 a.m. to 8.30 p.m. Still further, the petitioner was summoned to the Women Police Station, Ernakulam on 15.07.2018 and detained there till 8.30 p.m. The petitioner has been threatened W.P.(C) No.23918 of 2018 & con.cases. 6 that, she and her daughter will be implicated in the crime and will be caused to be taken into custody, which made her to approach this Court raising similar prayers as aforesaid. 7. The learned counsel for the petitioners submits that, the rights and liberties of the petitioners have been infringed without any regard to the Rule of Law. It is only because the illegal detention and threat committed by the officers concerned that they have been impleaded in the party array in their 'personal capacity' and that the petitioners are justified in seeking for appropriate relief, well within the parameters of law. The learned counsel also points out that, no woman can be summoned to the police station, by virtue of the mandate under Section 160 of the Code of Criminal Procedure. The learned counsel submits that, after filing the writ petition, the father of the petitioner in W.P.(C) No.23919/2018 by name Majeed has been released from the police custody. This being the position, the third prayer raised in this writ petition does no more survive. 8. With regard to the cause of action projected in W.P.(C) No.23920/2018, the learned counsel submits that, the Police doubted the husband of the petitioner as having involvement in 7 W.P.(C) No.23918 of 2018 & con.cases. 'Abhimanyu murder case' solely with reference to the alleged antecedents in relation to the Sessions Case No.1/2013 (Hand chopping Case). The learned counsel points out that the trial in the said case is already over and the husband of the petitioner has been acquitted, having arrived at a finding on innocence; despite which it is taken as a ground to have the husband implicated in connection with the present crime. It is stated that the Police does not have any power or jurisdiction to take the petitioners into custody and the power conferred is only under Section 47 of the Kerala Police Act, which deals with three different kinds of persons such as insane, drunkard or persons with illness and nobody else. This being the position, the course of action pursued by the Police is really atrocious and the same is to be interdicted by this Court. The learned counsel submits that absolutely no entry has been made in the 'General Diary' of the Police, with regard to the custody or as to the summoning of the petitioners to the police station and that even their primary needs have been obstructed by the Police. 9. The learned State Attorney submits that the version put forth by the petitioners is absolutely wrong and far from the W.P.(C) No.23918 of 2018 & con.cases. 8 track of truth. It is stated that the petitioners were never summoned to the police station at any point of time. It is further stated that neither the father of the petitioner in W.P.(C) No.23919/2018 nor the younger son by name Amir Bin Saleem or the petitioner in W.P.(C) No.23918/2018 was ever taken to police custody. It is added that, in the course of investigation, it was revealed that the husband of the petitioner in W.P.(C) No.23918/2018 by name Mohammed Saleem was found as involved in Crime No.1564/2017 being an accused and it was accordingly, that he was taken to custody on 04.07.2018, in turn leading to remand to judicial custody by the competent Magistrate. The judicial custody still continues. In the case of the second son of the petitioner in W.P.(C) No.23918/2018 (Adil Bin Saleem), the learned State Attorney submits that he was arrested on 15.07.2018 and was produced before the Magistrate having jurisdiction over the area and stands remanded to judicial custody. It is also pointed out that, involvement of the elder son by name Arif Bin Saleem is being investigated and necessary materials and inputs are being collected in this regard; adding that he is absconding for the time being. W.P.(C) No.23918 of 2018 & con.cases. 9 10. The allegation of threat and harassment raised by the petitioners is denied by the learned State Attorney. It is pointed out that, the husband of the petitioner in W.P.(C) No.23919/2018 (who is stated as one among the 15 accused in Crime No.1548/2018) is stated as having made several telephone calls using the mobile phone of his wife, that is the petitioner therein. In the said circumstance, investigation is being done also to ascertain the involvement of the petitioner and that further proceedings would be taken only based on the additional inputs collected, in conformity with the relevant provisions of law. 11. The learned State Attorney submits that, presence of the petitioners or their daughters is not required for the time being and if in the course of investigation, their presence is felt necessary, the Police will pursue further steps by issuing notice in conformity with the statutory provisions under Section 41A of the Cr.P.C. and also in conformity with the mandate under Section 160 of the Cr.P.C., to the extent it is applicable. 12. Coming to the remaining prayers with regard to the necessity to take disciplinary action and such other proceedings against the official respondents who have been impleaded in the W.P.(C) No.23918 of 2018 & con.cases. 10 party array in their personal capacity and also with regard to the compensation claimed by the petitioners, the instance/eligibility has to be established by raising specific pleadings and adducing evidence. Such fact adjudication cannot be made by this Court in these writ petitions filed under Article 226 of the Constitution of India. The petitioners are at liberty to move the competent/appropriate authority in accordance with law. We find no merit to entertain these matters any further. These writ petitions are dismissed accordingly. ## Sd/- **P.R.RAMACHANDRA MENON JUDGE** stu Sd/- **DEVAN RAMACHANDRAN JUDGE**