IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 WP(C).No. 34606 of 2008(T) -------------------------- PETITIONER: ------------- UNNIYAN ALAVI HAJI, S/O.ALAVI HAJI, AGED 56 YEARS, PARAYARU KUNDIL HOUSE, VALLAPPUZHA POST, OTTAPALAM. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S): ------------------ 1. THE SUPERINTENDENT OF POLICE, PALAKKAD. 2. D.Y.S.P.OF POLICE, AGALI, PALAKKAD DIST. 3. V.V.GIRIJA VALLABHAN, S/O.VELAPPU, VEPPIL HOUSE, THAMARAYOOR, KOOKKOD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY SR.GOVT.PLEADER SHRI BENJAMIN PAUL FOR R1 & R2 ADV. SRI.SUNNY MATHEW FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.34606/08 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE PLAINT IN O.S.No.273/08 AND DATED 30.10.08 FILED BY THE PETITIONER BEFORE THE SUBORDINATE JUDGE'S COURT, OTTAPPALAM. EXT.P2: TRUE COPY OF THE FIRST INFORMATION REPORT DATED 9.11.2008 AND REGISTERED BEFORE AGALI POLICE AS CRIME NO.229/08. EXT.P3: TRUE COPY OF PETITION FILED BY THE PETITIONER DATED 19.11.2008 BEFORE THE 1ST RESPONDENT. EXT.P4: TRUE COPY OF PETITION FILED BY THE PETITIONER DATED 21.11.2008 SENT BY THE PETITIONER TO THE SUPERINTENDENT OF POLICE, THRISSUR. TRUE COPY 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