IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 WP(C).No. 34641 of 2007(Y) -------------------------- PETITIONER: ------------ SATHIKUMARI, D/O.PARUKUTTYAMMA, AGED 53 YEARS, HOME NO.29, LEKSHMI NIVAS, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. SUPERINTENDENT OF POLICE, CRIME BRANCH, MUTTADA, MUTTADA P.O., THIRUVANANTHAPURAM. 3. CIRCLE INSPECTOR OF POLICE, PEROORKADA POLICE STATION, PEROORKADA P.O., THIRUVANANTHAPURAM. 4. SUB INSPECTOR OF POLICE, PEROORKADA POLICE STATION, PEROORKADA P.O., THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P.(C) No. 34641 of 2007 Y * * * * * * * * * * * * * * * * * * Dated: 15-01-2008 JUDGMENT In this Writ Petition filed under Art. 226 of the Constitution of India, the petitioner seeks a direction to entrust the investigation of Crime No. 16 of 2006 of Peroorkada Police Station to the 2nd respondent-Superintendent of Police, Crime Branch, Muttada under Sec. 173 (8) Cr.P.C. 2. The case of the petitioner can be summarised as follows:- The petitioner and her daughter are the joint owners of 60 cents of property in Sy. No. 2969 of Pattom Village. One Rugmini Amma and her daughter Sreekala are residing on the southern side of the aforesaid property. They trespassed into the property of the petitioner and put up a fence. They also filed a suit as O.S. 1570 of 2005 on the file of the Munsiff's court-II, Thiruvananthapuram, seeking a perpetual injunction against the petitioner. In that suit, the petitioner raised a counter claim for injunction or in the alternative for recovery of possession. The suit filed by the said Rugmini Amma and Sreekala was dismissed. But the counter claim filed by the petitioner was decreed by granting a perpetual injunction against the W.P.(C) No. 34641 of 2007 Y -:2:- said Rugmini Amma and Sreekala. On 3-9-2005, the Taluk Surveyor measured the property after giving notice to both the parties and survey stones were installed on the boundary. On 5-9-2005 the aforesaid Rugmini Amma and Sreekala removed and destroyed the survey stones necessitating the petitioner to file a representation before the Revenue Divisional Officer on 5-9-2005. On 4-11-2005, the Taluk Surveyor measured the property in the presence of the 4th respondent - Sub Inspector of Police, Peroorkada Police Station and installed survey stones at the boundaries. But on the very same evening the aforesaid persons again removed and destroyed the survey stones. The Addl. Tahsildar, as per letter dated 9-11-2005 directed the Circle Inspector of Police, Peroorkkada to initiate proceedings against the criminal activities of Rugmini Amma and her daughter and their henchmen. But the Circle Inspector did not do anything in the matter. Hence the petitioner filed a complaint before the J.f.C.M.II, Thiruvananthapuram alleging offences 427, 434 and 447 read with Sec. 34 I.P.C. The said complaint was forwarded to the Peroorkada Police under Sec. 156 (3) Cr.P.C. resulting in the registration of Crime No. 16 of 2006 referred to above and arraigning Rugmini Amma and Sreekala as accused Nos. 1 and 2 respectively. W.P.(C) No. 34641 of 2007 Y -:3:- But thereafter the police filed a refer report stating that the order of the civil court was in favour of Rugmini Amma and her daughter Sreekala and against the petitioner herein. The said conclusion reached by the police is wrong and opposed to the judgment and decree passed by the civil court. The petitioner cannot effectively file a protest complaint before the Magistrate since it may not be possible for him to produce revenue officials as his witnesses. Hence, the request for investigation by the Crime Branch Police. Moreover, the learned Magistrate has already accepted the refer report. 3. In a property dispute of this nature, it is neither desirable nor practical to direct the Crime Branch Police to investigate the case. Even according to the petitioners, the Peroorkada police had arrived at a wrong conclusion with regard to the decree passed by the civil court resulting in reaching a faulty reasoning regarding the dispute between the petitioner and her neighbours. If so, a protest complaint is the effective remedy against the refer report filed by the police. The law is well settled that even after the acceptance of the refer report, the aggrieved de facto complainant can file a protest complaint. Vide Kishore Kumar Gyanchandani v. G.D. Mehrotra - AIR 2002 SC 483 and Arun Kumar v. Union of India - 2003 (1) SCC W.P.(C) No. 34641 of 2007 Y -:4:- 734. Hence leaving the petitioner to the appropriate remedy of filing a protest complaint, this Writ Petition is closed. I am sure that if the petitioner's contention regarding the fate of the civil case is true, the production of the judgment and decree of the civil court alone will be sufficient to reach a conclusion that the action of the Peroorkada police is erroneous. V. RAMKUMAR, (JUDGE) ani.