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
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
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
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.