Akhil Krishnan v. State of Kerala and Suresh Kumar

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 ``` ``` CRL.MC NO. 1185 OF 2021 ``` ``` CRIME NO.692/2017 OF Thodupuzha Police Station, Idukki CC 197/2018 OF CHIEF JUDICIAL MAGISTRATE ,THODUPUZHA ``` ## **`PETITIONER/ACCUSED:`** ``` AKHIL KRISHNAN AGED 26 YEARS, S/O. K.B.RADHAKRISHNAN, RESIDING AT KIRSHNANJALI (H), KOLANI P.O., THODUPUZHA, IDUKKI DISTRICT-685608. BY ADVS. SAJITH KUMAR V. SHRI.VIVEK A.V. SHRI.GODWIN JOSEPH SHRI.SANKAR INDUCHOODAN SMT.APARNA CHANDRAN ``` ## **`RESPONDENTS/STATE AND COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM THROUGH SUB INSPECTOR OF POLICE, THODUPUZHA POLICE STATION, IDUKKI DISTRICT-682031. 2SURESH KUMAR, AGED 54 YEARS S/O. KRISHNAN KUTTY, CHETTIYAMTHODIYIL (H), KOLANI KARA, KOLANI P.O., THODUPUZHA VILLAGE, IDUKKI DISTRICT-685608. BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION SRI HRITHWIK CS, PP ``` ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:`** CrlM.C..No.1185/2021 **2** **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No.1185 of 2021** **---------------------------------------------Dated this the 04[th] day of December, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. Petitioner is the accused in C.C.No.197/2018 on the file of the Chief Judicial Magistrate Court, Thodupuzha, arising from Crime No.692/2017 of Thodupuzha Police Station. The above case is charge-sheeted alleging offences punishable under Section 153A of the Indian Penal Code and also Section 120(o) of the Kerala Police Act. 3. The prosecution case is that the petitioner had posted a photograph of the Chief Minister, Mr.Pinarayi Vijayan, with a comment “whether there is anybody in I.S. to shoot persons like him”. Based on a statement given by one Mr.Suresh Kumar N.K, the Police registered the above crime. Annexure-A is the FIR and Annexure-C is the final report. CrlM.C..No.1185/2021 **3** According to the petitioner, even if the entire allegations are accepted, no offence is made out. The petitioner relied on the judgments of this Court in **Fr.Gheevarghese John v. State of Kerala [2023 SCC Online Ker 8325]** and **Sanjeev S. v. State of Kerala [2023 (3) KHC 324]** . 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Even though notice is issued to the 2[nd] respondent, there is no appearance. 5. This Court perused Annexure-C final report, in which it is stated that to defame the Kerala Chief Minister, the petitioner, who is a worker of RSS/BJP, using his facebook ID, downloaded a photograph of the Hon’ble Chief Minister and posted with a caption that “whether there is any IS to shoot a person like him”. It is true that this is an unwarranted and unnecessary post from the side of the petitioner against the Chief Minister, especially because he is an elected legislative member and the Chief Minister of the State. The political differences should not go to this extent. But the question to be decided by this Court is whether the above statement attracts the offence alleged. In **Sanjeev’s case** (supra), this Court considered a similar point as far as Section 120(o) of the CrlM.C..No.1185/2021 **4** Kerala Police Act is concerned. It will be better to extract the same: 12. The remaining question is whether Section 120(o) of the Police Act, is attracted in the present case. The Section reads as “if any person, causing, through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, email or through a messenger shall be punished on conviction”. The essential ingredients of the offence under Section 120(o) of Police Act is that a person causes nuisance of himself to any other person through a means of communication. The allegations in the FIR do not indicate that petitioner caused a nuisance of himself by posting a modified word in the WhatsApp group. In this context, it is necessary to observe as mentioned earlier that the word 'വട' is not a defamatory word, nor is it a word which has a tendency to cause a nuisance. In the above circumstances, the offence under Section 120(o) of Police Act is also not made out." 6. Similarly, in **Fr.Gheevarghese John’s case** (supra), this Court considered the applicability of Section 120(o) of the Kerala Police Act. Paragraph 11 of the above judgment is extracted hereunder: “11. In the light of the above dictum laid down CrlM.C..No.1185/2021 **5** by this Court, I am of the considered opinion that the offence under Section 120(o) is not attracted in the facts and circumstances of the case. Section 120(o) lays down the penalty for causing nuisance and violation of public order, where any person causing through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, e-mail or through a messenger. If this Court started to hold that all these Facebook posts amount to an offence under Section 120(o) of the Kerala Police Act, 2011, almost all posts made on Facebook is to be declared as an offence under Section 120(o) of the Kerala Police Act.” 7. In the light of the above dictum laid down by this Court and also after going through Annexure-C final report, I am of the considered opinion that the offence under Section 120(o) of the Kerala Police Act is not attracted in this case. Section 153A of the Indian Penal Code is extracted hereunder: 153A. Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.-- - (1) Whoever-- - (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, CrlM.C..No.1185/2021 **6** on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or illwill between different religious, racials, language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or (c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,shall be CrlM.C..No.1185/2021 **7** punished with imprisonment which may extend to three years, or with fine, or with both. (2) Offence committed in place of worship, etc.-Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine. 8. Even if the entire allegations are accepted, the ingredients of the offence under Section 153A of the Indian Penal Code is also not attracted in this case. Therefore this criminal miscellaneous case is to be allowed. Before parting with the case, it is to be stated that, this tendency of youngsters to post unnecessary comments on social media is to be avoided. Making vulgar comments about the Chief Minster, Ministers and other dignitaries in social media is a hobby to the youngsters. They became Chief Minister and Ministers because they were elected by the voters with thumping majority. Here the petitioner is aged 26 and he is an engineering student. He is making this statement in facebook about the Chief Minster who is in his seventies. Respect for CrlM.C..No.1185/2021 **8** elders is one of the cornerstones of civilized behavior. There may be political differences, but respect those who are older than you, so that they may honour you. I leave it there. Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner in C.C.No.197/2018 on the file of the Chief Judicial Magistrate Court, Thodupuzha, arising from Crime No.692/2017 of Thodupuzha Police Station, are quashed. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** CrlM.C..No.1185/2021 **9** ## **`APPENDIX OF CRL.MC 1185/2021`** |`PETITIONER`|`ANNEXURES`| |---|---| |`Annexure D`|`A TRUE COPY OF THE STATEMENT DATED`| ||`07.04.2017 MADE BY SHRI R. PRASHOBH TO`| ||`THE INSPECTOR OF POLICE, THODUPUZHA`| |`Annexure E`|`A TRUE COPY OF THE STATEMENT DATED`| ||`07.04.2017 MADE BY SHRI SHAJI TO THE`| ||`INSPECTOR OF POLICE, THODUPUZHA`| |`Annexure F`|`A TRUE COPY OF THE STATEMENT DATED`| ||`07.04.2017 MADE BY SHRI RAJENDRAN TO`| ||`THE INSPECTOR OF POLICE, THODUPUZHA`| |`Annexure G`|`A TRUE COPY OF THE STATEMENT DATED`| ||`30.09.2017 MADE BY SMT. ANITA TO THE`| ||`INSPECTOR OF POLICE, THODUPUZHA`| |`Annexure H`|`A TRUE COPY OF THE STATEMENT DATED`| ||`07.04.2017 MADE BY SHRI. PADMAKUMAR TO`| ||`THE INSPECTOR OF POLICE, THODUPUZHA`| |`Annexure I`|`A TRUE COPY OF THE ADDITIONAL`| ||`STATEMENT OF SHRI SURESH KUMAR, THE`| ||`2ND RESPONDENT DATED 07.04.2017`| |`Annexure J`|`A TRUE COPY OF THE SEIZURE MAHAZZAR`| ||`RELATION TO MOBILE PHONE DATED`| ||`07.04.2017`| |`Annexure K`|`A TRUE COPY OF THE SEIZURE MAHAZZAR`| ||`DATED 07.04.2017 RELATING TO FACEBOOK`| ||`POSTS`| |`ANNEXURE C`|`THE CERTIFIED COPY F THE FINAL REPORT`| ||`IN CRIME NO.692/2017 OF THODUPUZHA`| ||`POLICE STATION.`| |`ANNEXURE B`|`A TRUE COPY OF THE STATEMENT DATED`| ||`23.6.2018 OF PRATHAP N., CPO, 3563,`| ||`CYBER CELL, IDUKKI DISTRICT BEFORE THE`| ||`INSPECTOR SHO, THODUPUZHA POLICE`| ||`STATION.`| |`ANNEXURE A`|`THE CERTIFIED COPY OF THE FIR IN CRIME`| ||`NO.692/2017 OF THODUPUZHA POLICE`| ||`STATION ALONG WITH F.I.STATEMENT.`|