Kunjuseethi Koya Thangal vs State Of Kerala
2021 Latest Caselaw 20597 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                       WP(C) NO. 18738 OF 2021
PETITIONER:

          KUNJUSEETHI KOYA THANGAL
          AGED 39 YEARS
          S/O LATE ABDULLA KOYA THANGAL,
          ODAMPULLIL HOUSE, HOUSE NO.XIII/11, THIRUMITTAKODE
          PANCHAYAT, KARUKAPUTHOOR, CHATHANUR.P.O,
          THIRUMITTAKODE-II VILLAGE, PATTAMBI TALUK,
          PALAKKAD DISTRICT-679537.

          BY ADVS.
          VARGHESE C.KURIAKOSE
          SUSANTH SHAJI



RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY SECRETARY, DEPT.OF HOME AFFAIRS,
          SECRETARIAT,
          THIRUVANANTHAPURAM,
          PIN-695001.

    2     THE STATE POLICE CHIEF
          KERALA STATE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM-
          695001.

    3     THE DISTRICT POLICE CHIEF
          PALAKKAD DISTRICT, PALAKKAD,PIN-678001.

    4     THE DEPUTY SUPERINTENDENT OF POLICE
          O/O THE DEPUTY SUPDT.OF POLICE, SHORNUR, PALAKKAD
          DISTRICT-679121.

    5     THE STATION HOUSE OFFICER
          CHALISSERY POLICE STATION, CHALISSERY-679536.

    6     SHRI DAVY,
          SUB INSPECTOR OF POLICE, CHALISSERY POLICE STATION,
 WP(C) NO. 18738 OF 2021
                                 2

          CHALISSERY-679536.

    7     SHRI HAMZA,
          CIVIL POLICE OFFICER, ATTACHED TO THE DEPUTY
          SUPERINTENDENT OF POLICE, O/O THE DY.S.P., SHORNUR,
          PALAKKAD-679121.



          SRI E C BINEESH - GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 18738 OF 2021
                                     3



                               JUDGMENT

The petitioner concedes to be the brother of Sri.Syed Hassan

Thangal, who has been arrayed as an accused in Crime

No.257/2021 of Chalissery Police Station. The petitioner says

that instead of arresting his brother, even if it was so required to

be done, respondents 5 to 7 came to his house on 01.07.2021 and

took him into custody and then detained in the Police Station,

without cause, till 9 A.M. He adds that even though he was not

an accused in any Crime, he was taken to custody as early as 5

A.M in the morning, when he was getting ready to go for his

prayers at the Masjid of which he is the imam.

2. The petitioner says, to add insult to injury, the police,

thereafter, charged him under Section 117(d) of the Kerala Police

Act and registered Crime No.261/2021 alleging that he had made

false declarations to a police officer with intent to mislead him.

The petitioner asserts that he did not make any wrong

declarations to the police, but he was unfairly arrested and

detained by respondents 5 to 7; and consequently, that he was WP(C) NO. 18738 OF 2021

constrained to prefer Ext.P2 complaint before the State Police

Chief, as also Ext.P4 complaint before the District Police Chief,

Palakkad, seeking action against the said police officers.

3. The petitioner alleges that, however, without considering

any of his allegations or grievances in its proper perspective, the

Deputy Superintendent of Police, Shornur, has now issued Ext.P8

exonerating the police officers and justifying the registration of

the aforementioned Crime against him. The petitioner, therefore,

prays that Ext.P8 be set aside and the 3rd respondent - District

Police Chief, Palakkad, be directed to reconsider Ext.P4 and take

an appropriate decision thereon against the delinquent police

officers mentioned in his complaint.

4. I have heard Sri.Varghese.C.Kuriakose - learned counsel

for the petitioner and Sri.E.C.Bineesh - learned Government

Pleader appearing for the official respondents.

5. Sri. E.C.Bineesh submitted that petitioner's contentions

are based on incorrect assertions of facts, because the truth

remains that when the police went to arrest Sri. Syed Hassan WP(C) NO. 18738 OF 2021

Thangal, they found the petitioner at home, who looked very

similar to the said accused, being brothers. He added that when

the police asked him whether he is Sri.Syed Hassan Thangal, he

kept quiet and that when they showed him a photograph of the

accused, he did not respond which, on account of the similarity in

their looks, lead the the police to believe that he was the accused

and thus took him into custody. He says that only after the

petitioner was taken to the police station, he declared - and too

much later - that he is not Sri.Syed Hassan Thangal, but his

brother; and that the police, therefore, registered a case under

Section 117(d) of the Kerala Police Act against him because, by

keeping quite with respect to the identity of his brother, he

allowed the said person to escape from the clutches of law. The

learned Government Pleader then showed that this is exactly

what has been stated by the Deputy Superintendent of Police,

Shornur, in Ext.P8; and therefore, prayed that this writ petition be

dismissed.

6. I have evaluated the afore submissions and have also WP(C) NO. 18738 OF 2021

gone through Ext.P8 very carefully.

7. There can be no doubt that the Deputy Superintendent of

Police has found and concluded that petitioner did not disclose

who he is and did not controvert that he was not the accused

when he was confronted with the photograph of his brother. As

regards the question whether this could be construed as an

offence under Section 117(d) of the Kerala Police Act is

concerned, it is not something that this Court can speak upon

affirmatively because, if the petitioner has any grievance against

Ext.P8 or any of the police officials as regards their conduct, he

certainly can approach the competent Magistrate's Court filing a

proper complaint.

8. I, therefore, fail to understand why the petitioner has

approached this Court impugning Ext.P8 because, whatever be

the content of the said document, if the petitioner is able to

establish his cause against the allegedly erring police officials

before the competent Magistrate's Court, then he certainly can

pursue that remedy without having the said report set aside. This WP(C) NO. 18738 OF 2021

is because the competent Magistrate's Court will surely be not

governed by Ext.P8 internal report of the police, but will

consider the facts and circumstances on its own and then decide

whether any cause has been made out by the petitioner.

However, when I say this it may not be misunderstood to

mean that, though the petitioner can approach the competent

Criminal Court with a complaint, said Court cannot consider the

issue of taking cognizance thereon or otherwise, based on

various aspects and criteria, as are applicable in such cases.

In the afore circumstances, leaving liberty to the

petitioner to approach the competent Court, if he is so advised, I

close this writ petition without speaking on the merits of Ext.P8

and leaving open the same to be pursued by him, as and when he

invokes the remedy as afore.

Sd/-

DEVAN RAMACHANDRAN JUDGE SAS/05/10/2021 WP(C) NO. 18738 OF 2021

APPENDIX OF WP(C) 18738/2021

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE FIR NO.261/2021 ON THE FILES OF CHALISSERY POLICE STATION DATED 01.07.2021

Exhibit P2 TRUE PHOTOSTAT COPY OF COMPLAINT DATED 26.07.2021 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT

Exhibit P3 TRUE PHOTOSTAT COPY OF THE COMPLAINT DATED 26.07.2021 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT

Exhibit P4 TRUE PHOTOSTAT COPY OF PETITION DATED 11.08.2021 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT

Exhibit P5 TRUE PHOTOSTAT COPY OF ACKNOWLEDGMENT CARD SIGNED BY THE 3RD RESPONDENT

Exhibit P6 TRUE PHOTOSTAT COPY OF COMPLAINT DATED 11.08.2021 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT

Exhibit P7 TRUE PHOTOSTAT COPY OF THE ACKNOWLEDGMENT CARD SIGNED BY THE 2ND RESPONDENT

Exhibit P8 TRUE PHOTOSTAT COPY OF THE COMMUNICATION DATED NIL SERVED ON 30.08.2021 ISSUED BY THE 4TH RESPONDENT.