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Unniyan Alavi Haji vs The Superintendent Of Police on 17 December, 2008

Kerala High Court
Unniyan Alavi Haji vs The Superintendent Of Police on 17 December, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 34606 of 2008(T)


1. UNNIYAN ALAVI HAJI, S/O.ALAVI HAJI,
                      ...  Petitioner

                        Vs



1. THE SUPERINTENDENT OF POLICE, PALAKKAD.
                       ...       Respondent

2. D.Y.S.P.OF POLICE, AGALI, PALAKKAD DIST.

3. V.V.GIRIJA VALLABHAN, S/O.VELAPPU,

                For Petitioner  :SRI.SANTHEEP ANKARATH

                For Respondent  :SRI.SUNNY MATHEW

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :17/12/2008

 O R D E R
         K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ.
          -----------------------------------------------------
                   W.P.(C)No.34606 OF 2008
        -----------------------------------------------------
            DATED THIS THE 17th DAY OF DECEMBER, 2008

                            J U D G M E N T

Balakrishnan Nair, J.

The petitioner is the Managing Director of a Private Limited

Company, which owns an estate. The said Company entered into

an agreement with the 3rd respondent for sale of the said estate.

Since, the 3rd respondent failed to perform his part of the contract,

the sale deed was not executed. It appears, the said respondent

has moved the 2nd respondent-Deputy Superintendent of Police,

Agali. The said Officer under the influence of the 3rd respondent is

harassing the petitioner unnecessarily, it is submitted. When the

3rd respondent and his men tried to trespass into the property, the

petitioner moved O.S.No.273/08 before the Sub Court,

Ottappalam. The said Court has passed an interim order to

maintain status quo and an Advocate-Commissioner was

appointed to inspect the properties and he has filed a report also.

When the order of status quo was remaining in force, the 3rd

respondent and his men, with the support of the 2nd respondent

trespassed into the estate. Based on the false information lodged

by the 3rd respondent before the 2nd respondent, a crime has

W.P.(C)No.34606/08 -2-

been registered against the petitioner and others for the offences

punishable under sections 143, 147, 448 ,506(i) and 365 of

Indian Penal Code. The police, under the 2nd respondent are

summoning the petitioner and his family members to the Police

Station and they are made to wait there unnecessarily. Feeling

aggrieved by the harassment from the part of the police, the

petitioner preferred Exhibits P3 and P4 representations before the

Superintendent of Police, Palakkad. It is also submitted that he

has been granted anticipatory bail by the Sessions Court,

Palakkad on 20.11.2008. Even thereafter, the harassment is

continuing. In the above factual background, this Writ Petition

was filed, seeking appropriate reliefs.

2. The learned Government Pleader upon instructions

submitted that the petitioner along with others armed with deadly

weapons kidnapped the 3rd respondent and therefore, Exhibit P2

crime was registered against him. The petitioner was absconding,

since the registration of the crime. The police denied the

allegations of harassment made by the petitioner.

3. The 3rd respondent has filed a counter affidavit, in

which it is submitted that the petitioner agreed to sell the estate

W.P.(C)No.34606/08 -3-

along with another item of property which is yet to be released

from the Forest Department. The petitioner did not get the

property released and also did not execute the sale deed. It is

also understood that for the sale of the very same property, the

petitioner earlier entered into an agreement with another party

and received substantial amounts towards advance sale

consideration. When the 3rd respondent approached the

petitioner to execute the sale deed in his favour, on 8.11.2008, he

was kidnapped by the petitioner and others in a vehicle. Based

on his complaint, Exhibit P2 crime has been registered. The 3rd

respondent denies the allegation that he has influenced the police

to harass the petitioner.

4. The petitioner has filed a reply affidavit dealing with

the averments in the counter affidavit of the 3rd respondent.

5. The petitioner is an accused in a criminal case and

therefore, police should be conceded freedom to investigate into

that crime. It is submitted by the petitioner that he has obtained

anticipatory bail from the Sessions Court on 20.11.2008.

Therefore, the statement in Exhibits P3 and P4 that the petitioner

has been summoned to the Police Station on 15th, 17th and 19th of

W.P.(C)No.34606/08 -4-

November, 2008 and was made to wait in the Agali Police Station

along with his son, from morning to evening cannot be correct.

When anticipatory bail is moved by a person apprehending arrest

for a non-bailable offence, it is inherently improbable that such a

person will go to the Police Station and wait there from morning to

evening. Having regard to the disputed facts of the case, we may

not be justified in upholding the contentions of the petitioner that

he is being harassed by the police. We cannot enter into such

disputed questions in a petition filed under Article 226 of the

Constitution of India. If the police are actually harassing the

petitioner, he may work out the ordinary remedies available to

him under the Code of Civil Procedure or Code of Criminal

Procedure. Subject to that right and without prejudice to the

contentions of the petitioner, this Writ Petition is dismissed.

K.BALAKRISHNAN NAIR, JUDGE.

M.C.HARI RANI, JUDGE.

dsn

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