IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 WP(C).No. 35694 of 2009(Q) ------------------------- CC.686/2009 of J.M.F.C.,KATTAKADA .................... PETITIONER: ------------------ K.PRADEEP, S/O.KUTTAPPAN, AGED 19 YEARS, MUNDANI LEKSHAM VEEDU COLONY, HOUSE NO.90, KOTTOOR, MANNOORKKARA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.RAMACHANDRAN NAIR RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP. BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. PRINCIPAL SECRETARY, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3. DIRECTOR GENERAL OF POLICE(LAW & ORDER) POLICE HEAD QUARTERS, VAZHUTHAKADU, THIRUVANANTHAPURAM - 695 010. 4. SUPERINTENDENT OF POLICE (RURAL), THIRUVANANTHAPURAM DISTRICT. 5. CIRCLE INSPECTOR OF POLICE, KATTAKADA, KATTAKKADA P.O., THIRUVANANTHAPURAM. 6. SUB INSPECTOR OF POLICE, NEYYARDAM P.O., NEYYATTINKARA TALUK. PUBLIC PROSECUTOR : ADV. SMT. M.K. PUSHPALATHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.35694 of 2009 --------------------------------------- Dated this 16th day of March, 2011 JUDGMENT Petitioner along with a few others are accused in Crime No.92 of 2007 of Neyyar Dam Police Station for offence punishable under Sec.160 of the Indian Penal Code. It would appear that since petitioner did not appear in Court, a warrant of arrest was issued to him to be executed by the Neyyar Dam police. While so, on 07.10.2009 as seen from Ext.P14, photocopy of proceeding of the learned Magistrate petitioner appeared through counsel and pleaded guilty. He was sentenced to pay fine of Rs.100/-. Non bailable warrant issued to the petitioner was recalled. It happened that on the same day sometime between 7p.m and 8.30p.m the Sub Inspector Neyyar Dam who was authorised to execute the warrant of arrest found petitioner and others at Mundani junction and on the strength of the warrant the Sub Inspector (6th respondent) wanted to arrest petitioner. It is alleged that petitioner who was accompanied by his father and others resisted arrest and using “mild force” the Sub Inspector arrested petitioner. He was brought to the Police Station. The next day, he was produced before the learned Magistrate. W.P(C).No.35694 of 2009 -: 2 :- Ext.P14 shows that learned Magistrate observed that petitioner was produced (on 08.10.2009) but he had already pleaded guilty the previous day through counsel and hence he is released. Petitioner filed Ext.P15, complaint to the Director General of Police with copy to various other functionaries including the Superintendent of Police, Rural alleging that petitioner was arrested by the sixth respondent on 07.10.2009 illegally, in spite of the non bailable warrant against petitioner being withdrawn by the learned Magistrate, he was brutally assaulted at the Police Station and produced before the learned Magistrate. Petitioner wanted action to be taken against the sixth respondent on that complaint. The Circle inspector (5th respondent) conducted an enquiry. It is while so, that petitioner has filed this petition seeking a direction to respondents 1 to 4 to take stringent action against the 6th respondent for the illegal arrest, detention and brutal physical torture and calling petitioner caste name. There is also a direction to order an enquiry into Exts.P5, P6 and P14. Learned counsel for petitioner contends that a reading of Exts.P5, P6 and P14 shows that version of the 5th respondent in the reply statement regarding arrest of petitioner at 7.30p.m is not correct and at any rate petitioner was produced before the learned Magistrate twice, on 08-10-2009, in the morning session W.P(C).No.35694 of 2009 -: 3 :- and then at 1.45p.m which has not been explained. Learned counsel invited my attention to Ext.P7, the outpatient record issued from Medical College Hospital, Thiruvananthapuram concerning the treatment allegedly given to the petitioner. According to the learned counsel on the facts and circumstances a case has to be registered against the sixth respondent. 2. Learned Public Prosecutor submitted that details of enquiry conducted by the Circle Inspector into the alleged assault of petitioner are given by the (fifth respondent) circle Inspector in his statement. It is also pointed out that the fact of recall of the warrant against petitioner was not communicated to the Station House Officer, Neyyar Dam police at any time before petitioner was arrested on 07.10.2009. 3. It is not disputed that petitioner was involved in Crime No.92 of 2007 for offence punishable under Sec.160 of the Penal Code and warrant of arrest was issued against him to be executed by the Neyyar Dam police. It is seen from Ext.P14 that on 07.10.2009 petitioner appeared through counsel, pleaded guilty and was sentenced to payment of fine and the warrant against him was recalled. But, respondents 5 and 6 would claim that the fact of recall of warrant was not communicated to the Station House Officer, Neyyar Dam police station and it is W.P(C).No.35694 of 2009 -: 4 :- accordingly that petitioner happened to be arrested on the evening of 07.10.2009. In Ext.P5, report submitted by the sixth respondent before the learned Judicial First Class Magistrate, Kattakkada it is stated that petitioner was arrested on 07.10.2009 at about 8.30p.m and since petitioner resisted the arrest he had to use mild force against petitioner. Fifth respondent in his statement would however say that petitioner was arrested on 07.10.2009 at 7p.m. Ext.P6, order passed by the learned Judicial First Class Magistrate, Kattakkada on 08.10.2009 stated that petitioner was produced before the learned Magistrate that day at 1.40p.m. But, petitioner had no complaint against police. Learned Magistrate observed that the case (involving offence under Sec.160 of the Penal Code against petitioner and others) was posted on 19.10.2009 and warrant was pending against petitioner. On 07.10.2009 petitioner got the case advanced and pleaded guilty appearing through counsel. The warrant against petitioner was recalled but that fact could not be communicated to Station House officer on time and without knowing about the recall of warrant the Station House Officer arrested petitioner and produced him before the learned Magistrate (at 1.45p.m as stated in Ext.P6). It is further stated that petitioner was unhappy as he was arrested when he had already pleaded guilty the W.P(C).No.35694 of 2009 -: 5 :- previous day. In Ext.P14, photocopy of proceeding paper the entry on 08.10.2009 is that petitioner was arrested and produced but he had already pleaded guilty the previous day through counsel and hence petitioner is released. No doubt, in Ext.P6, time of production of petitioner before the learned Magistrate is stated to be 1.45p.m on 08.10.2009. but, in Ext.P13, affidavit sworn by the petitioner before the learned Magistrate it is stated in paragraph 4 that he was produced before the learned Magistrate on 08.10.2009 at 11a.m and when he was about to tell the learned Magistrate about the assault on him the previous day, he was told that the case will be taken up afternoon and thereafter when the case was taken up in the afternoon learned Magistrate without recording that petitioner was assaulted and insulted (by the sixth respondent calling caste name) advised him and released him. Reading Exts.P8, P13 and P14, it is clear that petitioner was produced before learned Magistrate on 08.10.2009 at 11a.m the case was again taken up in the afternoon and at that time. Learned Magistrate passed Ext.P6, order stating that petitioner was produced at 1.45p.m. Thus, difference in time of production of petitioner before the learned Magistrate is explained. 4. So far as the allegation that petitioner was assaulted W.P(C).No.35694 of 2009 -: 6 :- by the sixth respondent is concerned, Exts.P7 and P12 are pressed into service. Ext.P7 is the photocopy of outpatient record issued from the Medical College Hospital, Thiruvananthapuram where the alleged history stated is assault by Neyyar Dam police on 07.10.2009 at 7.40p.m. Petitioner underwent outpatient treatment. There is also an endorsement in Ext.P7 that emergency V.C.G Abdomen was done for the petitioner who came with the history of assault to rule out blunt trauma abdomen. 5. Petitioner has a complaint that learned Magistrate did not record his version that he was assaulted by the sixth respondent but, I find from the proceedings recorded by the learned Magistrate that petitioner then had no complaint against police. I am not deciding whether petitioner was assaulted by the police or not. 6. Now there are no proceeding pending against the sixth respondent so that there can be a direction for investigation by any other agency than the sixth respondent. If petitioner has a complaint that he was assaulted the proper remedy was to approach the learned Magistrate with a complaint alleging offence as pleaded by petitioner. This court cannot in exercise power under Article 226 or 227 of the Constitution direct the police to register a case. That is the function of the Magistrate W.P(C).No.35694 of 2009 -: 7 :- under Sec.156(3) of the Code of Criminal Procedure. 7. It is pointed out by learned counsel for petitioner that as per the statement of the fifth respondent learning about the arrest of petitioner a mob surrounded the Police Station and wanted the police to release petitioner but since warrant was pending against petitioner that demand could not be complied. It is stated that the first respondent who got information about that matter came to Neyyar Dam Police Station pacified the people and sent them away. Learned counsel contends that none of the reports submitted by the police in the case would show that there was any such incident. In view of what I have stated above, no relief could be granted to the petitioner. Hence without prejudice to the right if any of petitioner to take appropriate legal action in the matter, this petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-