Shalet vs The State Of Kerala
2024 Latest Caselaw 17410 Ker

Kerala High Court

Shalet vs The State Of Kerala on 21 June, 2024

Author: P Gopinath

Bench: P Gopinath

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
        FRIDAY, THE 21ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946
                       WP(C) NO. 37943 OF 2018
PETITIONER:

            SHALET
            AGED 38 YEARS, W/O ALEX GILD,
            JOLLY ARCADE, THEKKUMBHAGOM, ERVIPURAM PO, KOLLAM.

            BY ADVS.
                 V.JAYAPRADEEP
                 ANN SUSAN GEORGE
                 O.A.NURIYA
                 D.S.LOKANATHAN
                 ALAN PRIYADARSHI DEV
                 ANISHA EMERSON



RESPONDENTS:

    1       THE STATE OF KERALA
            REPRESENTED BY ITS SECRETARY,
            HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.

    2       THE STATE POLICE CHIEF
            HEADQUARTERS, THYCAUD, THIRUVANANTHAPURAM.

    3       THE DISTRICT Police CHIEF
            KOLLAM- 691 001.

    4       MR.PANKAJAKSHAN
            S.H.O., ERAVIPURAM POLICE STATION, KOLLAM - 691 011.

    5       MR.JOYKUTTY
            ADDITIONAL SI, ERAVIPURAM POLICE STATION,
            KOLLAM - 691 011.

    *6      SIVAKUMAR
            SUB INSPECTOR, ERAVIPURAM POLICE STATION,
            KOLLAM - 691 011.
            *(THE 6TH RESPONDENT IS DELETED FROM PARTY ARRAY AT THE
            RISK OF PETITIONERS AS PER THE ORDER DATED 10.7.2019 IN
            IA. 01/2019)
 W.P (C) No.37943/2018                    2

     7       B.VINOD
             ASI, ERAVIPURAM POLICE STATION, KOLLAM - 691 011.

     8       ZAKKIR HUSSAIN
             ASI, ERAVIPURAM POLICE STATION, KOLLAM - 691 011.

     9       RAJESH
             PRO, ERAVIPURAM POLICE STATION, KOLLAM - 691 011.

             BY ADVS.
                  MANSOOR.B.H. (FOR RESPONDENTS 4,5 & 7 TO 9)
                  THUSHARA JAMES (SR GP)




      THIS    WRIT      PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION     ON   21.06.2024,     THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P (C) No.37943/2018                        3




                             JUDGMENT

The petitioner, who claims to be a tuition teacher by

profession, has approached this Court seeking a writ of

mandamus commanding respondent Nos. 4 to 9 to

refrain from harassing the petitioner or members of her

family; for a writ of mandamus commanding respondent

Nos. 2 and 3 to register criminal cases against

respondent Nos. 4 to 9; and for a writ of mandamus

commanding respondent Nos. 1 to 9 to pay an amount of

Rs.10,00,000/- to the petitioner as compensation for the

illegal arrest and detention of the petitioner by

respondent Nos. 4 to 9.

2. The brief facts of the case are as follows: the

petitioner and her husband are accused in Crime No.573

of 2018 of Eravipuram Police Station, Kollam district

alleging commission of offences under Sections 420, 468

and 471 r/w Section 34 of the Indian Penal Code. The

allegation, in brief, is that the husband of the petitioner

had obtained amounts from the de facto complainant and

several others promising to secure for them a job in

Israel, and after taking the de facto complainant and

others to Jordan on the promise that they would be taken

to Israel from Jordan, they were brought back to India

without offering any job as promised. It is alleged that

thereafter, the husband of the petitioner took the

de facto complainant and others to Egypt, again

promising that they would gain entry to Israel, and

according to the de facto complainant, they were again

brought back to India without obtaining for them any job

as promised in Israel.

3. According to the petitioner, the allegations in

the First Information Statement leading to registration of

Crime No.573 of 2018 indicate that there were

absolutely no allegations against the petitioner. But,

however, she was arrayed as an accused in this case only

to pressurize her husband, who is the other accused in

the case. The petitioner secured anticipatory bail from

this Court in Crime No.573 of 2018 of Eravipuram Police

Station. Ext.P2 is the order dated 29-08-2018 in

B.A.No.5503 of 2018 granting anticipatory bail to the

petitioner. While matters stood thus, on 16-11-2018,

certain Police officials attached to the Eravipuram Police

Station reached the residential house of the petitioner

and allegedly entered into the house, after breaking open

the door, and forcefully caught hold of the petitioner,

outraged her modesty and pushed her into a Police jeep

in front of her small children, using obscene and filthy

language. It is also urged that the Police officials also

stated that whatever the High Court or the Magistrate

Court say, they will deal with cheats and fraudsters in

any manner they like and punishment will also be as

decided by them. It is alleged that when the neighbours

asked the Police officials as to why the petitioner was

being arrested, they were informed that if an amount of

Rs.5,00,000/- is given to one Nancy, the petitioner would

be released from custody. According to the petitioner,

after taking her to the Police Station, she was again

abused using filthy language and threatened to pay a

sum of Rs.5,00,000/- to the aforesaid Nancy. The learned

counsel for the petitioner relies on Ext.P3 newspaper

report dated 17-11-2018 to contend that the so called

drama of the arrest of the petitioner was later projected

as a case of mistaken identity, and after detaining the

petitioner in the Police Station till late in the evening, the

petitioner was left free to go back to her house. The

learned counsel for the petitioner states that the Police

officials of the Eravipuram Police Station and in

particular the Assistant Sub Inspector of Police attached

to that Police Station at the relevant time had an axe to

grind against the husband of the petitioner. It is

submitted with reference to the pleadings in

W.P(C)No.37828 of 2018, which was a petition filed by

the petitioner along with her husband for Police

protection, that it is clear from the pleadings in that writ

petition, as also from the judgment in that writ petition,

and also from the contempt of court proceedings

initiated alleging violation of the directions issued by this

Court in the judgment in W.P(C)No.37828 of 2018 that,

the petitioner was picked up from her house for no

reason and only with an intent to harass the petitioner. It

is pointed out that from a reading of the counter affidavit

filed by respondent Nos. 4, 5 and 7 to 9 and the

statement filed by the learned Government Pleader there

was absolutely no justification for arresting/detaining the

petitioner in the Police Station from the morning on

16-11-2018 till late evening on the same day. It is

submitted that the petitioner was released only after the

local people created hue and cry regarding the illegal

detention of the petitioner.

4. The learned Government Pleader refers to the

statement dated 04-12-2018 to contend that there was no

illegal arrest/detention as alleged by the petitioner. It is

submitted that the petitioner was not even arrested on

16-11-2018. It is submitted that a Non-Bailable Warrant

had been issued by the Judicial First Class Magistrate

Court-I, Kollam, in S.T No.7738 of 2015. It is submitted

that the said Non-Bailable Warrant is on record as

Annexure-R3(a) along with the statement. It is pointed

out that a glance at the address shown in Ext.R3(a) will

show that the address shown therein is almost identical

to the address furnished by the petitioner while filing

B.A.No.5503 of 2018. It is submitted that after the

petitioner had been taken to the Police Station, she

stated that she had nothing to do with the person against

whom the Non-Bailable Warrant was issued and that the

petitioner could not be detained in connection with

S.T No.7738 of 2015. It is stated that, thereafter, the

matter was verified with the court and when it came to

the knowledge of the officials that the petitioner was not

the person against whom the Non-Bailable Warrant had

been issued, she was immediately let off. It is stated that

the allegation of harassment, use of vulgar words etc. is

nothing but a figment of the imagination of the

petitioner. It is submitted that the petitioner had

voluntarily come with the Police officials to the Police

Station and there was no occasion for the Police officials

to break open her door and drag her out and put her into

the Police jeep as stated in the writ petition. It is

submitted that there is no ground for the award of any

compensation, as respondent Nos. 4, 5 and 7 to 9 were

acting in the discharge of official duties.

5. The learned counsel appearing for respondent

Nos. 4, 5 and 7 to 9 would submit that the allegation that

the then Assistant Sub Inspector of Police attached to the

Eravipuram Police Station had an axe to grind against the

husband of the petitioner is absolutely wrong. It is

submitted that the Non-Bailable Warrant (Ext-R3(a)) had

been issued by the Judicial First Class Magistrate Court-I,

Kollam, initially on 14-08-2017, thereafter on 13-02-2018,

again on 17-08-2018 and further on 16-11-2018. It is

submitted that Ext.R3(a) is the warrant issued on

17-08-2018 directing the production of the person named

therein on 16-11-2018. It is submitted that, on seeing the

address in Ext.R3(a) and considering that there are some

criminal antecedents insofar as the petitioner is concerned,

the petitioner was picked up from her house at about

8.30 A.M on 16-11-2018. It is submitted that when the

petitioner took up the contention that she has nothing to

do with the case pending before the Judicial First Class

Magistrate Court-I, Kollam, and in respect of which

Ext.R3(a) Non-Bailable Warrant had been issued, the

matter was verified in the manner set out in the counter

affidavit filed by respondent Nos. 4, 5 and 7 to 9 and

thereafter the petitioner was immediately released. It is

submitted that the allegation that the petitioner was

released only by the evening of 16-11-2018 is not correct

and the petitioner was actually released at about

11.30 A.M on 16-11-2018.

6. The learned counsel for the petitioner relied on

the judgment of a Division Bench of this Court in

Vipin P.V. v. State of Kerala; 2013 (1) KHC 267, as

also on the judgment of another Division Bench of this

Court in State of Kerala and Others v. Shyam

Balakrishnan; 2019 (3) KLT 669, to contend that,

where it is clearly established that, for extraneous

reasons and considerations, the life and liberty of a

citizen has been interfered with, then the citizen is

entitled to be compensated for the pain and suffering of a

false accusation and consequent detention. It is

submitted that there is nothing on record to show that

the fact of the petitioner being brought to the Police

Station and thereafter released has been recorded

properly in the General Diary or in any other record

maintained at the Police Station. It is submitted that

since it is clear that the petitioner had been wrongly

arrested and taken to the Police Station, the petitioner is

entitled to the payment of the compensation as sought

for in the writ petition.

7. Having heard the learned counsel appearing

for the petitioner, the learned Government Pleader

appearing for the official respondents and the learned

counsel appearing for respondent Nos. 4, 5 and 7 to 9,

I am of the view that the petitioner has not made out any

case for grant of the reliefs sought for in the writ

petition. It is no doubt true that in appropriate cases,

where this Court is convinced that there has been a

gross violation of human rights by illegally detaining a

person, it may be open to this Court to grant

compensation even in the exercise of writ jurisdiction.

However, I am of the view that it must be demonstrably

evident from the facts that the action of the Police

authorities was nothing but an abuse of the law and in a

violation of the fundamental rights of the citizen. I am

unable to hold that this is a case where respondent

Nos. 4, 5 and 7 to 9 had acted in a planned manner to

deprive the petitioner of her liberty in order to harass

her. In the facts of the present case, the action by

respondent Nos. 4, 5 and 7 to 9 was in the execution of a

warrant issued by the Judicial First Class Magistrate

Court-I, Kollam. The address of the petitioner shown in

Ext.P2 bail application is as follows:

"Shalet, Aged 40 years, W/o. Alex Herman Gild, Jolly Arcade, Puthanazhikam Purayidam, Thekkumbhagom, Eravipuram P.O., Kollam".

The address of the accused against whom the Non-

Bailable Warrant was issued as can be seen from

Ext.R3(a) produced along with the statement filed by the

learned Government Pleader is as follows:

"Sharlet, Puthanazhikom, Purayidom, Near Convent, Eravipuram P.O., Kollam".

According to the statement filed by the official

respondents (other than respondent Nos. 4, 5 and 7 to 9)

and the counter affidavit filed by respondent Nos. 4, 5

and 7 to 9, it appears that according to them, they had

genuinely believed that the petitioner was the person

mentioned in Ext.R3(a) Non-Bailable Warrant and have

therefore brought her to the Police station for the

purpose of production before the court which issued

Ext.R3(a). While the learned counsel appearing for the

petitioner may be right in pointing out from the case

history of S.T. No.7738/2015 that, on 16-11-2018 (which

was the date for production of the accused named in the

Non-Bailable Warrant) the petitioner was never taken to

the court, it is clear from the statement filed by the

official respondents and also from the counter affidavit

filed by respondent Nos. 4, 5 and 7 to 9 that this was on

account of the fact that the petitioner had informed the

Police that she had nothing to do with the case in respect

of which Ext.R3(a) warrant had been issued. In the

statement filed on behalf of the official respondents, it is

stated as follows:-

"6. The Hon'ble Judicial First Class Magistrate Court Kollam has Issued Non Bailable Warrant in ST No.7738/2015 against Sharlet. Puthenazhikam Purayidom, Near Covent, Eravipuram, Kollam. True photo copy of the warrant issued by the Hon'ble Judicial First Class Magistrate Court, Kollam is produced herewith and marked as Annexure -R3(a). On receipt of the warrant issued by the Hon'ble Judicial First Class Magistrate Court Kollam for executing the warrant, Joykutty GSI of Eravipuram Police Station, Sivakumar C.P.O 6543, SCPO 6361 Rajesh Kumar and WSCPO 5378 Jayakumari, WSCPO 5575 Bindhu proceeded to the house of the petitioner at 08.30 A.M on 16.11.2018. The police party informed her that Learned Magistrate issued a warrant. She came along with the party to the police station. When she reached police station she said that she is not the actual person involved in the particular case pending before Hon'ble Magistrate Court-1 Kollam. On verification with the counsel who appeared in the

particular case it is understood that the petitioner is not the person implicated as accused in the particular case in which the Learned Magistrate had issued warrant. On getting information the petitioner was not arrested and she left the police station.

7. It is respectfully submitted that the petitioner has suppressed the fact that two WSCPO's were there when she was taken to the police station. Filthy allegations of physical contact and attempt to outrage the modesty are alleged without any bonafides.

8. After bringing her to the Eravipuram Police Station details were crosschecked before recording the arrest and upon the verification by Aid Prosecution Police Officer that another person named Sharlet was the warrantee in that case. It is submitted that petitioner has never disclosed this facts to the police officer and it was upon their cross verification the said fact was revealed.

9. It is respectfully submitted that the address mentioned in the warrant was same as that of the petitioner and that was the reason for that she was brought to the police station. The said police action was only the bonafied discharge of the official duty."

In the counter affidavit filed by responded Nos.4, 5 and 7

to 9, it is stated as follows:-

"4. It is submitted that the Judicial First Class Magistrates Court, Kollam has issued a non bailable warrant dated 17/8/2018 against the accused in S.T 7738/2015. The warrant was issued against Sharlet, Puthanzhikom Purayidom, Near Convent, Eravipuram, Kollam and on 16/11/2018 at about 8.30 A.M, a Police party consisting of respondents 5 and 9 along with Sivakumar C.P.O 6543, WSCPO 5378 Jayakumari and WSCPO 5575 Bindhu went to the house of petitioner. The Police party informed the petitioner about the issuance of warrant by the learned Magistrate and she voluntarily came along with the Police party to the Police station. When she reached the Police Station, she informed the police that she is not the actual person involved in the above case and as per the request made by the petitioner, the Police Party contacted her Counsel and before recording the arrest, the details of the case was crosschecked with the assistance of Aid prosecution Officer of concerned Court and on verification, it was revealed that the another person named Sharlet was the warrantee in that case and the petitioner is not the person implicated as the accused against Sharlet, Puthenazhikam Purayidom, Near Convent, Eravipuram, Kollam.

5. It is respectfully submitted that the address mentioned in the warrant was same that of the petitioner and that was the reason for that

she was brought to the Police station in this context it is respectfully pointed out that as can be seen from Ext.P2 bail order, the address mentioned in the above writ petition, the house name Puthanazhikam Purayidom was deliberately suppressed by the petitioner to mislead the court.

6. It is relevant to note that the address mentioned in the warrant was same that of the petitioner and the action taken by the Police in this regard are with bonafides and in discharge of their official duties. The police is duty bound to execute the warrants promptly and without delay.

7. It is also pointed out that the petitioner has suppressed the fact that two Women Senior Civil Police Officers were also there when she was taken to the Police Station. The averments and allegations raised in the writ petition regarding the alleged harassment meted out by the petitioner are absolutely false and untrue".

The decisions relied on by the learned counsel appearing

for the petitioner do not, in my view, aid the petitioner in

the facts and circumstances of the case. In Shyam

Balakrishnan (Supra) the Court was dealing with a

situation where the aforesaid Shyam Balakrishnan was

picked up by certain Police officials, dressed in plain

clothes, when he was traveling on a motor cycle to

Korom junction in Wayanadu district, on the ground that

the motor cycle in which he was traveling belonged to

two persons, who were being attempted to be traced by

the Police in connection with Maoist activities. In

Vipin P.V. (Supra) this Court was concerned with a

situation where a young lawyer, who was returning after

watching a movie, late at night, was intercepted by a

patrol vehicle and was brutally attacked, causing injuries

to him. The marked differences between the cases

considered by this Court in Shyam Balakrishnan

(Supra) andVipin P.V. (Supra), and this case is that,

here the Police were executing a Non-Bailable Warrant

issued by the Judicial First Class Magistrate Court-I,

Kollam, and as already demonstrated, the name and

address of the petitioner was strikingly similar to the

name and address of the person mentioned in Ext.R3(a)

Non-Bailable Warrant. While the learned counsel

appearing for the petitioner has taken pains to establish

with reference to the pleadings in WP(C) No.37828/18,

the Contempt of Court proceedings arising therefrom, as

also the directions issued by this Court in WP(C)

No.37828/2018 that, respondent Nos. 4, 5 and 7 to 9 had

an axe to grind against the husband of the petitioner,

I am unable to see any link connecting the issues brought

before this Court in WP(C) No.37828/2018 with the

incidents which led to the detention of the petitioner as

above, on 16.11.2018. As already noticed, WP(C)

No.37828/2018 was a writ petition filed by the petitioner

along with her husband for Police protection. In that

view of the matter, I am not inclined to hold that the

petitioner has made out any case for the award of

compensation in exercise of the jurisdiction of this Court

under Article 226 of the Constitution of India. The other

substantial relief sought for in the writ petition is for a

direction to respondent Nos.4 to 9, not to harass the

petitioner. With the passage of time, the officials against

whom allegations of harassment were raised have

already moved out of the said Police station. The other

directions sought for, including criminal action against

respondent Nos.4 to 9 also cannot be sustained in the

light of the findings rendered in this judgment.

In the light of the above, the writ petition fails and it

is accordingly dismissed. However, it is necessary in the

facts and circumstances of the case to observe that this

is a case where there has been an admitted detention of

the petitioner in connection with the execution of Non-

Bailable Warrant issued against another person. The

facts, therefore, bring out the urgent necessity of

ensuring that the identity of the person is established

clearly before any arrest/detention is made by the Police

officials, either in the execution of a warrant issued by

the court or otherwise. While I am not able to find any

material to establish that the action of respondent

Nos. 4, 5 and 7 to 9 in this case was mala fide, the

detention of the petitioner, on the basis of a wrong

identity, has caused extreme prejudice to her. Therefore,

notwithstanding the fact that I have found that the

petitioner is not entitled to any compensation or for any

of the other reliefs sought for in the writ petition, I deem

it appropriate to direct the State Police Chief to come out

with suitable instructions to ensure that similar instances

of arrest or detention, on the basis of the wrong identity,

does not result in the invasion into the life and liberty of

innocent citizens.

Sd/-

GOPINATH P. JUDGE

ats/ajt

APPENDIX OF WP(C) 37943/2018

PETITIONER'S EXHIBITS

EXHIBIT P1 COPY OF THE FIR IN ERAVIPURAM Police CRIME NO.573/2018.

EXHIBIT P2 COPY OF THE ORDER DATED 29/08/2018 IN B.A.NO.5503/18.

EXHIBIT P3 COPY OF THE NEWSPAPER ITEM PUBLISHED IN THE MALAYALA MANORAMA DAILY DATED 17/11/2018.

EXHIBIT P4 COPY OF THE COMPLAINT GIVEN TO THE 2ND RESPONDENT DATED 17/11/2018.

EXHIBIT P5 COPY OF THE WRIT PETITION 37828/2018 DATED 21.11.2018.

EXHIBIT P6 COPY OF THE IA 1/2018 IN WPC 37828/2018 DATED 26.11.2018.

EXHIBIT P7 COPY OF THE INTERIM ORDER DATED 07.12.2018 OF THIS HON'BLE COURT IN WPC 37828/2018.

EXHIBIT P8 COPY OF THE REPLY AFFIDAVIT DATED 13.12.2018 IN WPC 37828/2018.

EXHIBIT P9 COPY OF THE IA 1/2019 IN WPC 37828/2018 DATED 23.01.2019.

EXHIBIT P10 COPY OF THE IA 2 & 3/2019 IN WPC 37828/2018 DATED 28.02.2019.

EXHIBIT P11 COPY OF THE ADDITIONAL STATEMENT DATED 27.03.2019 OF THE DISTRICT POLICE CHIEF, KOLLAM.

EXHIBIT P12. COPY OF THE JUDGMENT DATED 10.06.2019 OF THIS HON'BLE COURT IN WPC 37828/2018.

RESPONDENT'S EXHIBITS

EXHIBIT R3(A) TRUE PHOTO COPY OF THE WARRANT ISSUED BY THE HONBLE JUDICIAL FIRST CLASS MAGISTRATE COURT KOLLAM.