Kerala High Court

Binu C. Varghese vs State Of Kerala on 13 January, 2021

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                    WP(C).No.26073 OF 2020(H)


PETITIONER:

               BINU C. VARGHESE
               AGED 47 YEARS
               S/O. VARGHESE, CHANGELIZHAKEL VEETTIL,
               KARIMANNOOR KARA AND VILLAGE, THODUPUZHA TALUK,
               IDUKKI-685 581.

               BY ADVS.
               SRI.GEORGE MATHEW
               SRI.M.D.SASIKUMARAN
               SHRI.PRAVEEN S.
               SHRI.SUNIL KUMAR A.G
               SRI.DIPU JAMES
               SHRI.MATHEW K.T.
               SRI.K.V.GEORGE
               SMT.ELSA DENNY PINDIS

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT,
               GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695
               001.

      2        THE DISTRICT POLICE CHIEF
               ERNAKULAM, RURAL OFFICE OF THE DISTRICT POLICE
               CHIEF, ALUVA, ERNAKULAM-682 030.

      3        THE STATION HOUSE OFFICER
               KUNNATHUNADU POLICE STATION, ERNAKULAM
               DISTRICT-683 562.

      4        THE SUB INSPECTOR OF POLICE
               KUNNATHUNADU POLICE STATION, ERNAKULAM
               DISTRICT-683 562.
 WP(C)No.26073 of 2020

                              2

      5      ANJALI SANKAR
             D/O. SANKARAN NAIR, VADAKKEDATH HOUSE, NELLAD
             P.O., KUNNATHUNADU, ERNAKULAM-686 669.

      6      GAYATHRI GIREESH
             W/O. GIREESH, VADAKKEDATH HOUSE, NELLAD P.O.,
             KUNNATHUNADU, ERNAKULAM-686 669.

      7      GIREESH
             AGE AND FATHERS NAME NOT KNOWN TO PETITIONER,
             VADAKKEDATH HOUSE, NELLAD P.O., KUNNATHUNADU,
             ERNAKULAM-686 669.

             R1-4 BY GOVERNMENT PLEADER
             R6-7 BY ADV. SRI.K.K.AKHIL
             SMT K.AMMINIKUTTY - SR GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C)No.26073 of 2020

                                       3

                              JUDGMENT

The petitioner, who is a contractor by profession, who was

engaged to undertake certain constructions by the 5 th

respondent, has filed this writ petition under Article 226 of the

Constitution of India, seeking a writ of mandamus commanding

respondents 2 to 4 to provide adequate and effective protection

from respondents 5 to 7 to the life and property of the petitioner,

his equipments and materials kept under the custody of

respondents 5 to 7. The petitioner has also sought for a writ of

mandamus commanding respondents 2 to 4 to provide adequate

and effective protection to remove the equipments and materials

from the custody of respondents 5 to 7; and a writ of mandamus

commanding respondents 2 to 4 to conduct proper investigation

of Cr.No.1094 of 2020 of Kannathunadu Police Station. Going by

the averments in the writ petition, there are certain disputes

between the petitioner and the 5 th respondent, in relation to the

construction of a residential building undertaken by the

petitioner. The 6th respondent is the sister of the 5 th respondent

and the 7th respondent is the husband of the 6th respondent. WP(C)No.26073 of 2020

2. On 26.11.2020, when this writ petition came up for

admission, this Court issued notice before admission to the

respondents. The learned Government Pleader took notice for

respondents 1 to 4 and sought time to get instructions. Urgent

notice by special messenger was ordered to respondents 5 to 7.

3. Respondents 6 and 7 have filed a counter affidavit,

opposing the reliefs sought for in this writ petition. In the counter

affidavit, they have denied various allegations in the writ petition

and it is pointed out that the parents of the 5 th respondent have

already filed O.S.No.448 of 2020 before the Munsiff's Court,

Perumbavoor, against the writ petitioner, for realising an amount

of Rs.8,85,573/- towards damages/compensation/excess amount

received. Respondents 6 and 7 are residing about 30 kilometers

away from the construction site and they never detained the

construction equipments of the petitioner as alleged in the writ

petition.

4. A statement has been filed by the learned Senior

Government Pleader on behalf of the 3 rd respondent. Paragraphs

2 and 3 of that statement read thus;

WP(C)No.26073 of 2020

"2. On 24.10.2020, the petitioner in the writ petition reached the police station and given a statement that the 7th and 8th respondent illegally restrained, used abusive language and threatened him at 19.30 hrs to 23.30 hrs at their residence and based on the statement a crime as 1094/20 under Sections 342, 294(b), 506 and 34 of IPC has been registered in the police station. Investigation of the case has been completed and charge sheet was submitted before the Judicial First Class Magistrate Court, Kolencherry on 15.11.2020.

3. It is submitted that the petitioner has submitted a petition that the respondents are not permitting him to take away the materials he brought for the construction of the house. Police party was sent to the spot for giving assistance to the petitioner to take away the materials. But the mother of the 6 th respondent present on the place of construction, raised objection for removing the materials. Since an aged lady raised objection to remove the materials, the police party returned from the spot, convincing the petitioner the inability to provide protection as there a civil dispute exists."

5. Heard the learned counsel for the petitioner, the

learned Senior Government Pleader appearing for respondents 1

to 4 and also the learned counsel for respondents 6 and 7.

Despite service of notice, none appears for the 5th respondent, WP(C)No.26073 of 2020

who is presently abroad.

6. The issue that arises for consideration in this writ

petition is as to whether the petitioner is entitled for police

protection to his life and property, in order to remove his

equipments and materials kept in the premises of the 5th

respondent, where he had undertaken the construction of a

residential building for the 5th respondent, without any

obstruction being caused by respondents 5 to 7.

7. The Kerala Police Act, 2011 is enacted to consolidate

and amend the law relating to the establishment, regulation,

powers and duties of the Police Force in the State of Kerala and

for matters connected therewith and incidental thereto. Chapter

II of the Act deals with duties and functions of Police. Section 3 of

the Act deals with general duties of Police. As per Section 3, the

Police, as a service functioning category among the people as

part of the administrative system shall, subject to the

Constitution of India and the laws enacted thereunder, strive in

accordance with the law, to ensure that all persons enjoy the

freedoms and rights available under the law by ensuring peace WP(C)No.26073 of 2020

and order, integrity of the nation, security of the State and

protection of human rights. Section 4 of the Act deals with

functions of Police. As per Section 4, the Police Officers shall,

subject to the provisions of the Act, perform the functions

enumerated in clauses (a) to (s) of Section 4. As per clause (a),

the Police Officers shall enforce the law impartially; and as per

clause (b), the Police Officers shall protect the life, liberty,

property, human rights and dignity of all persons in accordance

with the law.

8. Lord Denning in 'The Due Process of law' [First Indian

Reprint 1993, Page 102] has described the role of the Police

thus;

"In safeguarding our freedoms, the police play vital role. Society for its defence needs a well-led, well-trained and well-disciplined force or police whom it can trust, and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.

The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man's house without authority. They must not use more WP(C)No.26073 of 2020

force than the occasion warrants."

9. In Manohar Lal Sharma v. Principal Secretary

[(2014) 2 SCC 532] the Apex Court held that, one of the

responsibilities of the police is protection of life, liberty and

property of citizens. The investigation of offences is one of the

important duties the police has to perform. The aim of

investigation is ultimately to search for truth and bring the

offender to the book. The Apex Court reiterated the said principle

in Ankush Maruti Shinde v. State of Maharashtra [(2019)

15 SCC 470].

10. During the course of arguments, the submission made

by the learned counsel for respondents 6 and 7 is that, the said

respondents have absolutely no objection in the petitioner

removing his equipments and materials kept in the construction

site and that, they will not cause any obstruction whatsoever.

11. The learned Government Pleader would submit that in

case there is any obstruction, at the instance of respondents 6

and 7, the 3rd respondent Station House Officer shall render

necessary police assistance to enable the petitioner to remove his WP(C)No.26073 of 2020

equipments and materials kept in the construction site.

12. Having considered the submissions made by the

learned counsel on both sides, this writ petition is disposed of

with the following directions;

(i) The 3rd respondent Station House Officer shall

render adequate and effective protection to the

petitioner to remove his equipments and materials

kept in the construction site of the residential building

belongs to the 5th respondent, without any obstruction

being caused by respondents 6 and 7.

(ii) The petitioner shall submit a request before the

3rd respondent, pointing out the date on which he

intends to remove his equipments and materials from

the construction site in question.