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2020 Supreme(Ker) 726
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Raja Vijayaraghavan V, J.
K.A.Unnimon – Petitioner
Versus
State Of Kerala, Represented By Special Secretary, Home Department, Secretariat and Ors. – Respondents
WP(C).No.20055 OF 2020(F)
Decided On : 20-10-2020
Advocate Appeared:
For the Petitioner: Sri. C.A. Majeed, Sri. K.H. Asif Smt.Molty Majeed, Sri. P.B. Unnikrishnan Nair, Sri. Ruben George Rock, Advs.
For the Respondent: Sri KP Harish, Sr. Government Pleader
IMPORTANT POINT
The Police officers who exercise their powers under Section 41A of the Code are bound to act in strict compliance with the provisions of the statute and for that purpose they would do well to follow the form prescribed under the circular as detailed above. Under no circumstance will the police have any authority to interfere with the freedom of an individual by serving a notice under Section 41A.
Headnote:
Kerala Police Act, 2011- Section 63;; The Code of Criminal Procedure- section 160 ;; The Constitution of India- Article 226--Under Section 63, the Police may interfere in disputes, which if not resolved early, may culminate into a cognizable offence- The power given to the police under Section 41A is for sake of preventing abuse of powers and cannot be used to intimidate, threaten and harass a person.
Statement of facts:
Being traumatized by the constant summoning of the petitioner to the Police Station by the 2nd respondent for resolving a monetary dispute that he has with the 3rd respondent, the petitioner has approached this Court with this Writ Petition filed under Article 226 of the Constitution of India.
Finding of the court:
The petitioner is being summoned to the police to resolve a dispute which the police have absolutely no authority to interfere. If any money is due from the petitioner towards arrears of rent or otherwise, the same being a purely civil dispute, the 3rd respondent will have to exhaust his remedies in the Civil Court.
Result: Writ petition is disposed of.
JUDGMENT :
Being traumatized by the constant summoning of the petitioner to the Police Station by the 2nd respondent for resolving a monetary dispute that he has with the 3rd respondent, the petitioner has approached this Court with this Writ Petition filed under Article 226 of the Constitution of India.
2. To appreciate the grievance of the petitioner, the prefatory facts leading to this petition need to be briefly stated :-
The petitioner states that he took the building owned by the 3rd respondent on lease in the month of January 2020 for starting a cold storage. At the time of entering into the agreement for lease, amounts were handed over to the landlord towards security. The petitioner carried out renovations to the building by expending amounts. However, he was not able to start the business as originally planned. He later surrendered the premises to the landlord. Admittedly, no amount was paid by the petitioner by way of rent for the period that the building was in his possession. The petitioner asserts that the landlord did not demand the same. However, after vacating the premises, on the premise that the landlord had filed a complaint against the petitioner, he was summoned to the police station. He states that he is being constantly pestered by the police and he was asked to clear off the rent arrears. He states that he was slapped with Ext.P2 notice issued purportedly under Section 41A of the Cr.P.C. calling upon him to appear before the Sub Inspector of Police, Kottayam police station on 25.9.2020. According to the petitioner, the police have no role in the dispute between the landlord and tenant and according to him, issuance of Ext.P2 notice to settle a civil dispute is clearly an abuse of process. He has in the aforesaid circumstances approached this Court seeking directions.
3. On instructions, it is submitted by the learned Government Pleader that the 3rd respondent had filed a complaint before the 2nd respondent alleging that some amounts were due from the petitioner. It is in the aforesaid circumstances that the petitioner was summoned.
4. I have considered the submissions advanced.
5. I find from Exhibit P2 that notice under Section 41(A) of the Cr.P.C has been issued by the 2nd respondent calling upon the petitioner to appear before the said officer on 25.9.2020 to enquire into a complaint lodged before the said officer by Sri K.B.Unnikrishnan, the landlord. What is conspicuous from Exhibit P2 is that no mention is made about the offence for which his presence before the Police Officer is required.
6. Chapter V of the Code of Criminal Procedure starts with the heading “Arrest of persons”. Section 41 A provides for issuance of notice of appearance before the Police Officer. The said provision reads thus:-
Section 41-A Notice of appearance before police officer.—(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.”
7. The aforesaid provision makes it clear that in all cases where the arrest of a person is n
