IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 WP(C).No. 14383 of 2011(W) -------------------------- CRIME NOS.1771, 1778 & 1967 OF 2010 OF KUNDARA POLICE STATION AND CRIME NO.970 OF 2010 OF KIZHAKKEKALLADA POLICE STATION PETITIONER(S): --------------- VICTOR CLETUS, AGED 51 YEARS, SON OF PATHROSE, RESIDING AT VIJU VILASAM, KUNDARA, KOLLAM DISTRICT. BY ADV. SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA) RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLIC HEAD QUARTERS, THIRUVANANTHAPURAM-695010. 3. THE SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE, KOLLAM. 691 001. 4. THE SUB INSPECTOR OF POLICE, KUNDARA POLICE STATION, KOLLAM DISTRICT. 5. KRISHNA KUMAR, DEPUTY SUPERINTENDENT OF POLICE, KOLLAM. 691 001. 6. LAL KUMAR, AGED 49 YEARS, S/O.KARUTHAKUNJU, RESIDING AT ABHIRAMIL, HOUSE NO.311, WARD NO.VI, PERAYAM CHERRY, PERAYAM PANCHAYATH, MULAVANA.P.O., KUNDARA, KOLLAM. 691 503. WP(C) NO.14383/2011 2 7. RAJLEKSHMI, AGED 36 YEARS, W/O.LAL KUMAR, RESIDING AT ABHIRAMIL, HOUSE NO.311, WARD NO.VI, PERAYAM CHERRY, PERAYAM PANCHAYATH, MULAVANA.P.O., KUNDARA, KOLLAM. 691 503. 8. ASWATHI, AGED 28 YEARS, D/O.OMANA, RESIDING AT ABHIRAMIL, HOUSE NO.311, WARD NO.VI, PERAYAM CHERRY, PERAYAM PANCHAYATH, MULAVANA.P.O., KUNDARA, KOLLAM. 691 503. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NO.14383/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 A TRUE COPY OF THE ORDER DATED 15.10.2010 IN IA NO.4599/2010 IN OS NO.718/2010 ON THE FILE OF MUNSIFF COURT, KOLLAM EXT.P2 A TRUE COPY OF ORDER DATED 29.11.2010 IN BA NO.7611/2010 PASSED BY THIS COURT EXT.P3 – A TRUE COPY OF THE FIR IN CRIME NO.1967/2010 OF KUNDARA POLICE STATION EXT.P4 – A TRUE COPY OF FIR IN CRIME NO.970/2010 OF EAST KALLADA POLICE STATION EXT.P5 A TRUE COPY OF THE ORDER DATED 17.12.2010 IN BA NO.8059/2010 PASSED BY THIS COURT HON'BLE COURT EXT.P6 A TRUE COPY OF THE OFFICE MEMORANDUM DATED 28.12.2010 ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM EXT.P7 A TRUE COPY OF ORDER DATED 3.1.2011 IN CMP NO.35/2011 IN CRIME NO.1771/2010 PASED BY JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM EXT.P8 A TRUE COPY OF THE CMP NO.106/2011 FILED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM EXT.P9 A TRUE COPY OF ORDER DATED 20.1.2011 IN CMP NO.528/2011 IN CRIME NO.1967/2010 OF KUNDARA POLICE STATION EXT.P10 A TRUE COPY OF ORDER DATED 20.1.2011 IN CMP NO.526/2011 IN CRIME NO.1771/2010 OF KUNDARA POLICE STATION EXT.P11 A TRUE COPY OF ORDER DATED 20.1.2011 IN CMP NO.525/2011 IN CRIME NO.1778/2010 OF KUNDARA POLICE STATION EXT.P12 A TRUE COPY OF REPRESENTATION DATED MARCH 2011 SUBMITTED BY PETITIONER BEFORE THE SECOND RESPONDENT . //TRUE COPY// cks THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C.) No.14383 of 2011 -------------------------------------- Dated this the 14th day of June, 2011. JUDGMENT Prayer in this petition is to issue appropriate order or direction directing the second respondent to direct investigation into crime Nos.1771, 1778 and 1967 of 2010 of Kundara Police Station and Crime No.970 of 2010 of Kizhakkekallada Police Station by the Crime Branch or by an Officer superior in rank to the fifth respondent, Deputy Superintendent of Police, Kollam. 2. According to the petitioner, the genesis of the criminal cases is a dispute between him and respondents 6 to 8 regarding an item of property over which petitioner claimed right and possession. He filed O.S.No.718 of 2010 before the learned Munsiff, Kollam seeking various reliefs including injunction against respondents 6 to 8 and obtained an interim order of injunction as prayed for. While so, respondents 6 to 8 with the assistance of the fifth respondent tried to dispossess petitioner. Thereafter Crime Nos.1771, 1778 and 1967 of 2010 were registered by the Kundara Police (under the administrative jurisdiction of the Deputy Superintendent of Police, Kollam) against petitioner for various offences. Immediately after petitioner obtained interim order of injunction against respondents 6 to 8 in O.S.No.718 of 2010, fifth respondent came with an additional report in Crime No.1771 of 2010 alleging commission of offence punishable under Section 3(1)(iv), (v) and (xv) of the Scheduled Castes and WP(C) No.14383/2011 2 Scheduled Tribes (Prevention of Atrocities) Act. Thereon, petitioner had to approach this Court for anticipatory bail and this Court issued Ext.P5, order directing petitioners to surrender before the Investigating Officer for interrogation, etc. which included that the said Officer shall after interrogation produce petitioner before the jurisdictional Magistrate who shall consider the request of petitioner for bail. Direction was to appear before the fifth respondent on 27.12.2010 or 28.12.2010. Petitioner states that on 27.12.2010 he appeared before the fifth respondent and waited in his office from dawn to dusk but, without any result. On 28.12.2010 petitioner preferred an application before the jurisdictional Magistrate stating the above facts. As per Ext.P6, learned Magistrate directed the Station House Officer, Kundara to take custody of petitioner, interrogate and produce him before learned Magistrate on the same day at 6.30 p.m. It was done accordingly and petitioner was granted interim bail. Case was posted on 03.01.2011. While so, fifth respondent came with an application for Police custody (for questioning). Learned Magistrate passed Ext.P7, order granting custody till 04.01.2011 but directing that fifth respondent shall not in any way ill-treat petitioner and shall produce him before learned Magistrate on 04.01.2011 at 12.30 p.m. Petitioner was produced before the learned Magistrate as above directed. Alleging harassment petitioner filed Ext.P8, complaint before the learned Magistrate. It is submitted that learned Magistrate has taken cognizance of the offences referred to in Ext.P8 against the fifth respondent and filed C.C.No.506 of 2011 which is now pending in the court of learned Judicial First Class Magistrate-I, Kollam. Grievance of petitioner is that fifth respondent who is a well wisher of the sixth respondent is WP(C) No.14383/2011 3 out of wreck vengeance on the petitioner and that Crime No.1771 of 2010 is being investigated by fifth respondent himself. It is submitted that Crime Nos.1778 and 1967 of 2010 of Kundara Police Station and Crime No.970 of 2010 of Kizhakkekallada Police Station are being investigated by officials junior in rank to the fifth respondent. In the circumstances, petitioner is apprehensive about the outcome of investigation. Hence this petition with the above stated prayers. Learned counsel for petitioners submitted that petitioner has real apprehension regarding the outcome of investigation. It is also submitted by learned counsel that in respect of the incident referred in Crime No.1967 of 2010 of Kundara Police , the latter has filed Crime No.970 of 2010 of Kizhakkekallada Police Station against the sixth respondent. I have heard learned Public Prosecutor also. 3. Having regard to the circumstances above stated it does not appear to me proper that fifth respondent against whom C.C.No.506 of 2011 is registered on the complaint of petitioner investigated Crime No.1771 of 2010. So far as other crimes are concerned I do not find reason to change the Investigating Agency. But, the Officers investigating those crimes are to look into various aspects of the matter including the grievance of petitioner and submit final reports in those cases. (It is submitted by learned Public Prosecutor that in Crime No.970 of 2010 of Kizhakkekallada Police Station final report has been submitted before the appropriate court on 10.01.2011 stating that the case is false.) Resultantly, Writ Petition is disposed of in the following lines: i. So far as investigation of Crime No.1771 of 2010 of Kundara WP(C) No.14383/2011 4 Police Station is concerned, it is directed that instead of the fifth respondent (Deputy Superintendent of Police, Kollam), investigation shall be conducted by another Officer of the same rank as the Superintendent of Police, Kollam may direct. He shall pass appropriate orders in that regard within two weeks from the date of receipt of a copy of this judgment which shall be made available to that Officer by the petitioner. ii. So far as Crime Nos.1778 and 1967 of 2010 of Kundara Police Station are concerned (provided final reports have not been filed in those cases) are concerned, it is directed that Officers investigating those cases shall investigate the cases bearing in mind complaint of petitioner as well. iii. So far as Crime No.970 of 2010 of Kizhakkekallada Police Station is concerned, since as submitted by learned Public Prosecutor a refer report has already been filed it is open to the petitioner or other person aggrieved to take further action pursuant to the notice served on such person from the court concerned on such refer report. THOMAS P.JOSEPH, Judge. cks