HIGH COURT OF KERALA
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(1.) "The S. I. of Police Tellicherry has reported the C. Ps. have been warned by him not to take possession of the paramba. A reply may be given to the petitioner accordingly. Draft proceedings (L. Dis) put up may be approved" issued by the Executive First Class Magistrate and Ext. P-3, a communication addressed to Smt. Chathampalli Lakshmi, Respondent No. 1 to this writ application, by the Executive First Class Magistrate, Tellicherry, respondent No. 2 to this writ application. Ext. P-3 is in these terms: "the petitioner is informed that the C. Ps. have been warned by the Police against trespass and breach of peace. "
(2.) THE direction in Ext. P-2 and the notice, Ext. P-3, came to be issued in the following circumstances. THE first respondent moved a petition before the second respondent (Ext. P-1) stating that she "has reason to believe" that the two petitioners to this writ application may "trespass into the property noted in the margin and pluck coconuts. " THE property referred to is one over which the first respondent claimed a Melpattom right and have been it was alleged in the possession of the predecessor-in-interest of the first respondent and after his death of the first respondent. It appears that the wives of the two petitioners - the two petitioners are brothers who have married sisters - and their sister also, were putting forward some claims to the property. It was further alleged that the petitioners, were trying to influence the first respondent to accept the position that their wives have right to the property. It is said that they sent for the first respondent's brother, one bhaskaran, and insisted that the first respondent should execute a Melpattom in favour of the wives of the two petitioners. All these were stated in Ext. P-1 the petition submitted before the second respondent. THE second respondent passed the following order on Ext. P-1: "forwarded to the Inspector of Police, Tellicherry, for immediate necessary action and report. " S. THE Sub Inspector of Police, Tellicherry, investigated the matter and submitted a report, Ext. P-2. After referring to the stands taken up by either group, the Inspector concluded: "under the above circumstances, I advise the C. Ps. not to take possession of the Paramba as suspected by the petitioner and if they have got any right they have to establish the same through a civil court. It is not proved to say that the C. Ps. have threatened the petitioner or the brother of the petitioner"'
C. Ps. referred to in Ext. P. 2 are the writ applicants and the petitioner mentioned therein is the first respondent. It is on this report that the direction which I have extracted earlier was given by the second respondent and it is on that basis that Ext. P-3 communication was addressed to the first respondent. Apparently information was given about Ext. P-3 to the Press, for the following news item appeared in the "mathrubhumi" dated September 10,1963 :
The two advocates mentioned by name are the two petitioners and Smt. Chathampalli Lakshmi the first respondent. One more fact has to be mentioned before dealing with the points raised by counsel on behalf of the petitioners. In the affidavit in support of the writ application, which is sworn to by the first petitioner and said to be on behalf of the second petitioner as well, it is stated: "the petitioners had never any intention to trespass into the said property. They would have done nothing without recourse to or sanction of law. In fact the Sub Inspector or any other Police Officer did not meet me at all in this connection and when he did meet the second petitioner he merely said that he was satisfied that the petition was vexatious and frivolous and that he would warn the first respondent for having filed a false petition. "
(3.) THIS does not seem to be in consonance with what is stated in Ext. P-2, the relevant part of which I have extracted. But it is not for this Court to determine the correctness of either version. It is urged that assuming what is stated in Ext. P-2 is correct, that the Sub Inspector advised the petitioners not to take possession of the Paramba, the observation of the second respondent that the petitioners have been warned is not supportable on the basis of the report. Counsel contends that warning is a serious matter, and that such warning should be issued only at least on a prima facie satisfaction that grounds exist for believing that the petitioners are likely to cause a breach of the peace. Before issuing any such warning, it is urged, an opportunity should be given to the persons against whom the warning is issued to show cause against such warning. Otherwise, the principles of natural justice which must apply even in regard to executive and/or administrative directions would be violated. Counsel further argued that in this case there was not merely a recording of a fact of a warning, but it has also been communicated to the petitioner and it has been given wide publicity. THIS according to counsel, is highly prejudicial to the reputation of the petitioners and has even infringed their rights guaranteed under Art. 19 of the constitution.
Ext. P-1 does not purport to be under any statutory provision. None of the sections of the Criminal Procedure Code which may have relevancy have been referred to. I do not understand the second respondent as acting under any statutory provision either. The recording of the alleged warning and the direction to inform the petitioner contained in Ext. P-2 are, therefore, purely executive and/or administrative acts. Such directions may be necessary in the interests of society. It is the paramount duty of a State to preserve law and order and afford protection to law-abiding citizens. To ensure this, it may be necessary to watch the activities of some individuals, keep surveillance on their movements or even open a "history Sheet" against them In fact provision has been made for this purpose in the Police regulations. Dealing with Para. 228 of the U. P. Police Regulations, a Division bench of the Allahabad High Court in Rameshwar Prasad versus Superintendent of police (AIR. 1963 Allahabad 408) observed as follows: "prima facie neither the opening of any History sheet, nor having surveillance of a citizen can affect the freedom of speech and expression, nor can it touch the citizen's right to acquire, hold and dispose of property, nor even his right to practise any profession or to carry on any occupation, trade or business unless, provided the business which the citizen wants to carry on is such as does not endanger public safety or put the well-being of the community in jeopardy. ";
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