IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2804 of 2010(A)
1. MANJUSHA, W/O. CHANDRA BOSE,
... Petitioner
2. G.CHANDRA BOSE,
3. KRISHNAN, AGED 64 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. CITY COMMISSIONER OF POLICE,
3. SUB INSPECTOR OF POLICE,
4. PENTA COST MISSION, REP. BY ITS
5. SUB REGISTRAR,
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :R4I.BINOY VASUDEVAN
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :18/03/2010
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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W.P(C). NO. 2804 OF 2010 A
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Dated this the 18th March, 2010
JUDGMENT
K.M. Joseph, J.
This is a Writ Petition where the allegation is of
harassment by the third respondent. The third respondent is the
Sub Inspector of Police, Peroorkada Police Station. The prayers
in the Writ Petition are as follows:
“A. Issue a writ of mandamus directing the
third respondent not to coerce the petitioners or the
fifth respondent to produce the original of Ext.P2
before him until the proceedings before the fifth
respondent and the civil court are terminated;
B. Issue a writ of mandamus directing the
third respondent not to harass the petitioners and
force them to produce the original of Exts.P2 and P7
until its genuineness is decided by the civil court.”
2. Briefly put, the case of the petitioners is as follows:
First petitioner is the plaintiff in OS.No.1170 of 2009. As
WPC.2804/2010 A 2
per Ext.P1 sale deed, Shri C. Gopinathan and Smt. Shyamala
were in absolute possession and enjoyment of 9.857 cents of
property and the building therein. The second petitioner is the
husband of the first petitioner and the third petitioner is the
father of the first petitioner. Shri Gopinathan and his wife Smt.
Shyamala were living separately as his wife was actively
involved in Pentacost Mission activities and was leading an
indifferent life totally neglecting and deserting Shri Gopinathan.
Shri Gopinathan, in short, is alleged to have executed Ext.P2
Will in favour of the first petitioner and her sister. The Will was
kept as a secret by Shri Gopinathan to avoid problems. He died
on 4.4.2009 and the Will came into force. The Will was
produced before the fifth respondent’s office for registering the
same. While so, the fourth respondent attempted to trespass into
the building and hence OS.No.1170/09 and other Suits were
filed. Ext.P4 is the injunction order. It was while so that the
fifth respondent was considering the matter and the matter is
pending before the court, third respondent filed Ext.P6 FIR on
WPC.2804/2010 A 3
the instigation of the fourth respondent and is demanding the
petitioners to get back the original of the Will handed over to the
fifth respondent for registration.
3. A Counter Affidavit is filed by the fourth respondent
producing Exts.R4(a) to R4(f). According to the fourth
respondent, Ext.R4(a) Will is executed by late Shyamala on
25.7.2009. Ext.R4(b) is the undertaking given by Deepu
Sebastian. Ext.R4(c) is the objection by the fourth respondent to
the I.A. filed in the civil suit. Ext.R4(d) is the petition filed by
Ayyappan before the Munsiff Court. Ext.R4(e) is the complaint
filed by fourth respondent before the Magistrate Court. Ext.R4
(f) is the certified copy of FIR in Crime No.821 of 2009. They
deny the case of the petitioners that the third respondent
interfered on the basis of the influence by the fourth respondent.
They challenge the very maintainability of the Writ Petition on
the ground that FIR is registered and if at all, the petitioners are
to work out their remedies elsewhere.
WPC.2804/2010 A 4
4. We heard the learned counsel appearing for the parties
including the learned Government Pleader. The main complaint
of the petitioners is that the original of Ext.P2 Will has been
produced before the Registrar under Section 40 of the Indian
Registration Act. Ext.P7 is alleged to be a document containing
the admitted signatures of late Shri Gopinathan. There is no
dispute among the parties that in respect of both Exts.P2 and P7,
the police may have to approach the Magistrate and obtain an
order and cannot directly seize the documents from the
possession of the fifth respondent in respect of Ext.P2 and the
Advocate to whom allegedly Ext.P7 is entrusted. In such
circumstances, the Writ Petition is disposed of as follows:
We make it clear that police will be free to continue to
investigate the matter in respect of the crime which has been
registered. No doubt, learned counsel for the petitioners would
submit that the petitioners are challenging the very case itself.
This Judgment will be without prejudice to the right of the
petitioners to challenge the matter in the appropriate Forum. We
WPC.2804/2010 A 5
further make it clear, however, that in regard to the seizure of
the original of Ext.P2 Will which is presently with the fifth
respondent or Ext.P7 which is with the Advocate, the third
respondent cannot seize the documents unless and until after
getting an order from the competent Magistrate in this regard.
Sd/=
K.M. JOSEPH,
JUDGE
Sd/=
M.L. JOSEPH FRANCIS,
JUDGE
kbk.
// True Copy //
PS to Judge