Afeef R.M. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942** **Crl.MC.No.3460 OF 2015** **AGAINST CC 1780/2012 OF CHIEF JUDICIAL MAGISTRATE, THALASSERY CRIME NO.654/2011 OF CHAKKARAKKAL POLICE SATION, KANNUR** ## **PETITIONER/ACCUSED NO.1:** **AFEEF R.M., AGED 20 YEARS, RAFEEQUE MANZIL, CHAKKARAKAL, MOWENCHERRY P.O., KANNUR DISTRICT.** **BY ADVS. SHRI.V.PREMCHAND SRI.V.TEKCHAND** ## **RESPONDENTS/COMPLAINANT/STATE:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **2 THE SUB INSPECTOR OF POLICE CHAKKARAKAL POLICE STATION, CHAKKARAKAL, KANNUR DISTRICT 670 613.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No. 3460 OF 2015 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- Crl.M.C. No. 3460 OF 2015 ---------------------------------------------Dated this the 22[nd] day of December, 2020 ## **O R D E R** The prayers in the aforecaptioned Criminal Miscellaneous Case filed on 09.06.2015, under Section 482 of the Code of Criminal Procedure (Cr.P.C.) are as follows:- _"1. Quash Annexure 2 and C C No 1780/2012 pending Before the Chief Judicial Magistrate, Thalassery in the interest of Justice._ _2. Issue a direction to the Chief Judicial Magistrate, Thalassery to re call the Non Bailable Warrant issued against the petitioner and permit him to contest the case._ _3. Permit the petitioner to appear before the Chief Judicial Magistrate, Thalassery after recalling the warrant issued in C C No 1780/2012.”_ 2. Heard Sri.V. Prem Chand, learned counsel appearing for the petitioner (A1) and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for respondents. 3. The petitioner herein has been arrayed as accused 1 among the 2 accused in the instant impugned Annexure-1, First Crl.M.C. No. 3460 OF 2015 3 Information Report (FIR) in crime No.654/2011 of Chakkarakkal Police station, Kannur District, for offence punishable under Sec.119(a) of the Kerala Police Act, 2011, on the basis of the _suo-moto_ first information of the police in that regard. 4. The police, after investigation has filed the impugned Annexure-2, Final Report/Charge Sheet on 19.11.2011, as against both the said accused persons for the offence punishable under Sec.119(a) of the Kerala Police Act, which has led to the pendency of Calendar Case, C.C. No.1780/2012 on the file of the Chief Judicial Magistrate Court, Thalassery. Thereafter, the learned Magistrate has issued Annexure-3 summons dated 04.04.2014 to the charge witnesses to give their evidence. Annexure-3(2) would show that summons issued on CW4 (alleged victim) could not be served as she is not reachable. 5. It appears that Annexure-3(2) report is given some time in April 2014 after the issuance of Annexure-3 summons dated 04.04.2014. It is thereafter that the criminal miscellaneous case has been filed before this Court on 09.06.2015. Crl.M.C. No. 3460 OF 2015 4 6. This Court is now apprised that the case is now adjourned to 30.12.2020., etc. ## 7. The Annexure-2 final report/charge sheet reads as ## follows:- _“_ ഇന� _19.11.11_ ത�യത� ഞ�ൻ _(S I Addl) Sr. CPO 4038, CPO 4919_ എന�വരമമ�രമ�ച� സസഷൻ പര�ധ�യ�ൽ _L/o_ ഡ�ട� മ�യ വരമവ _14.45_ മണ�ക� ഇര�സവര� അ!ശ! �കരകൽ ബസ� സ�ൻഡ�ൽ വച� രണ സപർ ബസ� സ�ൻഡ�ൽ ബസ� ക�ത� ന�ൽകന സ,യമ. അടത� മ�ന� സ,യമ. അനസ� ഹന�കന ര,ത�യ�ൽ പവർത�കനത�യ� ക�ണമ3ടത�ൽ ഞ�ൻ പ�ർട�യമമ�ന�ച� സലത� എത�യത�ൽ സപ�ല,സ� പ�ർട�മയ കണ� .�യ�ന�ർ ഓ.� രകമ3.�ൻ ശമ�കകയ! ഞ�ന! പ�ർട�യ! .,യ�ന�മര ത.ഞ� ന�ർത� സപര വ�ല�സവ! സ��ദ�ചത�ൽ _1) R.M._ ആര�ഫ� _, S/o_ അബൾ ലത,ഫ� _20/11_ റഫ,ഖ� മൻസ�ൽ ഇര�സവര� അ!ശ! _,_ �കരകൽ _2)_ പ� _._ റയ�ജ�സ� _S/o_ അബള _21/11_ അൽഫറ�സ� ക�ഞ�സര�മ. അ!ശ! _,_ മHവസJര� എന, സപര വ�ല�സവ! പറഞ� തര�കയ! സശഷ! ഞ�ൻ .�യ�ന�മര കറ വ�വര! പറഞ� മനസ�ല�ക� മക�ടത� _14.50_ മണ�ക� സലത� വച� പത�കമM അറസ� മ�യ� സശഷ! പത� മതൽ സഹ�ത! സസഷന�ൽ ഹ�ജര�യ� പത�കളമ. സപര�ൽ �കരകൽ _P S Cr.No.654/11 U/s 119(1) of KP Act_ ആയ� സകസ� റജ�സർ മ�യന _.”_ 8. Sec.119(a) of the Kerala Police Act, 2011, reads as ## follows:- _**“119. Punishment for atrocities against women.** – (1) Any person who,—_ _(a) performs, in public places, any sexual gestures or acts degrading the dignity of women;”_ 9. It has been held by this Court in decisions as in _**Arun v. State of Kerala**_ [2019(3) KHC 132 = 2019 (2) KLT 906] in paragraph No.12 that where the police states in the final report/charge sheet that the accused was found in a public place showing some sexual gestures or acts degrading the dignity of an Crl.M.C. No. 3460 OF 2015 5 woman, will not do and the police will have to state with all precision and clarity in the impugned criminal proceedings as to what exactly was the specific gesture or acts performed by the accused person, which is of sexual nature and degrading the dignity of the woman, etc. It will be profitable to refer to the decision rendered by this Court in _**Arun v. State of Kerala**_ [2019(3) KHC 132] in paragraph No.12, which reads as follows:- _“12. However, the petitioner is entitled to succeed on the last ground urged by him. What is stated in the first information report and the final report is only that, at a public road, the petitioner made obscene gestures having sexual flavour, degrading the dignity of women. It is not stated what was the obscene or sexual gesture or act performed by the petitioner. The statements of the two civil police officers, who are cited as prosecution witnesses, also do not disclose the specific gesture or act performed by the petitioner which had the effect of degrading the dignity of women. The petitioner cannot be made guessing what is the specific allegation against him. The prosecution would not be justified in bringing in the evidence for the first time the specific nature of the sexual gestures or acts allegedly performed by the accused. The complaint or the first information report, as the case may be, shall contain recital as to the specific gesture or act performed by the accused, which according to the prosecution, was degrading to the dignity of women and which would attract the offence under Section 119(1)(a) of the Act. Otherwise, there is every possibility of evidence being tendered for the first time, as the prosecution witnesses may wish to put forward, of the performance of any sexual gesture or act by the accused, thereby causing great prejudice to the accused and affecting his right to have a fair trial. In the absence of any allegation that the petitioner performed any specific act or gesture which was sexual in nature, degrading the dignity of women, the offence under Section 119(1)(a) of the Act is not attracted. The proceedings against the petitioner are liable to be quashed on this ground.”_ Crl.M.C. No. 3460 OF 2015 6 10. In the instant case, a mere reading of Annexure-A2 final report/charge sheet would show that the police has only blandly alleged and stated in Annexure-A2 that the accused persons were found to be showing sexual gestures or acts degrading the dignity of women. No specific and precise allegations are made as to the exact nature of the gestures said to have been allegedly done by the accused, etc. If the police is permitted to set in motion such impugned criminal proceedings on the basis of such vague and generalised allegations without specifying the precise and specific contention of the factual allegations, then the prosecution will be able to lead evidence in the manner they deem fit, as they are not bound to lead evidence only to prove the specific factual allegations, so as to fit in with the overall framework of the vague and generalised allegations. Such an approach would be in patent violation of the elementary principles of fair trial, as the specific factual charges should be made known to the accused in advance in order to enable him or her to have a reasonable opportunity of defence. Hence, such generalised and vague allegations is against the very basic canons of fair trial in criminal law. Further it is seen that the Crl.M.C. No. 3460 OF 2015 7 alleged victim is not traceable since April 2014, as can be seen from Annexure-A3(2). 11. For all these reasons this Court is of the considered view that the very initiation and continuance of the impugned criminal proceedings is an abuse of the process of the court and would deserve interdiction. There are 2 accused persons in this case. Only accused No.1 has approached this Court. 12. If partial quashment is effected, it will be all the more difficult for the trial court as well as to the prosecution machinery to go ahead with this case as inevitably it will only lead to acquittal of even the remaining accused in view of the dictum laid down by this Court in decisions as in **Arun'** s case (supra) [2019 (2) KLT 906 para 7 & 12]. 13. Accordingly it is ordered in the interest of justice that the impugned Annexure-A2 Final Report/Charge sheet filed in the impugned Annexure-A1 crime No.654/2011 of Chakkarakkal Police Station, Kannur District, which has led to the pendency of Calendar Case, C.C. No.1780/2012 pending before the Chief Judicial Magistrate Court, Thalassery, as against the accused persons therein and all further proceedings Crl.M.C. No. 3460 OF 2015 8 emanating therefrom as against the accused persons therein will stand quashed and set aside. In other words, the entire criminal proceedings as against both the accused persons will stand quashed. 14. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the Chief Judicial Magistrate Court, Thalassery, who is dealing with C.C. No.1780/2012, for necessary information. With these observations and directions, the above criminal miscellaneous case will stand disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//27122020 Crl.M.C. No. 3460 OF 2015 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE P1**|**ANNEXURE I: TRUE COPY OF FIRST**| |---|---| ||**INFORMATION REPORT DATED 9/11/2011**| ||**OF CHAKKARAKKAL POLICE STATION**| |**ANNEXURE P2**|**ANNEXURE 2: TRUE COPY OF THE CHARGE**| ||**SHEET DATED NIL IN CC NO.1780/2012**| ||**BEFORE THE CHIEF JUDICIAL**| ||**MAGISTRATE, THALASSERY.**| |**ANNEXURE P3**|**ANNEXURE 3: CERTIFIED COPY OF THE**| ||**SUMMONS DATED 4/4/2014 ISSUED TO THE**| ||**DEFACTO COMPLAINANT BY THE CJM,**| ||**THALASSERY**| **RESPONDENTS' EXHIBITS: NIL**