Alex v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944** **CRL.MC NO. 2102 OF 2021** **Crl.A. 2/2017 OF I ADDITIONAL SESSIONS COURT,** ## **THIRUVANANTHAPURAM** **CC 2749/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEDUMANGAD** ## **PETITIONER/1ST ACCUSED:** **ALEX, AGED 24 YEARS, S/O. SALIMKUMAR, KAVADITHALAKKAL PUTHEN VEEDU, NEAR VETTIKONAM SCHOOL, MUDHI SASTHAMCODE WARD, PEROORKADA VILLAGE, THIRUVANANTHAPURAM DISTRICT-695 013.** **BY ADVS. M.SANTHI (K/868/2011) SRI.G.RANJU MOHAN ADV.THARA JOHNSON** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE INSPECTOR OF POLICE, VATTIYOORKAVU POLICE STATION, THIRUVANANTHAPURAM DISTRICT, THROUGH THE LEARNED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **SRI P G MANU, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC NO. 2102 OF 2022** **2** ## **ORDER** This Crl.M.C. has been filed to quash all further proceedings in C.C.No.2749 of 2015 on the files of the Judicial First Class Magistrate Court-II, Nedumangad. 2. The petitioner is the 1[st] accused. The offence alleged against him is under Section 119(a) of the Kerala Police Act. Annexure-A1 is the First Information Report. It was registered _suo motu_ by the Sub Inspector of Police, Vattiyoorkavu Police Station (CW7). 3. The prosecution case in short is that on 14.07.2015 at 5.20 p.m., near Nettayam Junction Bus Stop, at Peroorkada, the petitioner along with the 2[nd] accused showed sexual gestures degrading the dignity of women and thereby committed the offence. 4. After completion of the investigation, Final Report was filed before the learned Judicial First Class Magistrate Court-II, Nedumangad. It is marked as Annexure-A2. The learned Magistrate took cognizance of the offence. After hearing both sides, the court below initially framed charge **CRL.MC NO. 2102 OF 2022** **3** against the accused. When the charge was read over and explained to the petitioner, he pleaded guilty. Therefore, he was convicted and sentenced to pay a fine of Rs.3,000/-. Aggrieved by the said conviction and sentence, the petitioner filed an appeal at the Sessions Court, Thiruvananthapuram as Crl.Appeal No.2 of 2017. The Sessions Court, Thiruvananthapuram, allowed the appeal and remanded the case to the court below for fresh trial in accordance with law. Thereafter, further investigation was conducted by the Police under Section 173(8) of the Cr.P.C. and further report was filed. It is marked as Annexure-A10. Even though the petitioner filed an application for discharge under Section 239 of the Cr.P.C. before the court below, it was dismissed. It was thereafter, the petitioner approached this Court invoking Section 482 of the Cr.P.C. 5. I have heard Adv.Thara Johnson, the learned counsel for the petitioner and Sri.P.G.Manu, the learned Senior Public Prosecutor. 6. The learned counsel for the petitioner, Adv.Thara Johnson, vehemently argued that even if the entire allegations **CRL.MC NO. 2102 OF 2022** **4** in Annexure-A1 First Information Report and Annexures-A2 and A10 Final Reports are taken at this stage well, no offence under Section 119(a) of the Kerala Police Act is made out. I find force in the said argument. The prosecution allegation is that CW7 Sub Inspector of Police received information that the petitioner and the 2[nd] accused were showing sexual gestures degrading the dignity of women in a public place. On getting the said information, he along with two Police Constables, CWs1 and 2, went to the site and they found that the information was true. CWs 1 and 2 are the Occurrence Witnesses cited. Their statements were taken twice. It forms part of Annexures-A2 and A10. They only stated that when they reached the scene of occurrence, they saw the petitioner and the 2[nd] accused sitting on a bike showing gestures with their hands towards the place where women were standing and when they saw them, they ran away. This is the only statement to connect the petitioner with the offence. The rest of the prosecution witnesses, CWs 3 to 6, only stated that they saw the policemen chasing the accused and catching them. **CRL.MC NO. 2102 OF 2022** **5** 7. In order to attract Section 119(a) of the Kerala Police Act, the accused should perform, in public places, any sexual gestures or acts degrading the dignity of the women. As stated already, the witnesses only stated that they saw the petitioner and the 2[nd] accused, showing gestures with their hands aimed at the place where a few women were standing. There is no case that those gestures were sexual gestures or with intention to degrade the dignity of women. In the absence of such a case, the prosecution under Section 119(a) of the Kerala Police Act cannot be sustained. Apart from the said statement of two police persons, there are no supporting materials. 8. A Single Bench of this Court in **Arun v. State of Kerala** [2019 (2) KLT 906] has held that 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 the dignity of women. Either in the First Information Statement or in the statement of the witnesses, there are neither the details as to the specific gesture or act performed **CRL.MC NO. 2102 OF 2022** **6** by the petitioner nor are there allegation that the said act was performed with the intention to degrade the dignity of women. Hence, I am of the view that the ingredients of offence under Section 119(a) of the Kerala Police Act are not made out. 9. In view of the above facts, I find that no useful purpose will be served in proceeding further against the petitioner. Accordingly, all further proceedings in C.C.No.2749 of 2015 on the files of the Judicial First Class Magistrate CourtII, Nedumangad, hereby stand quashed. The Crl.M.C. is allowed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** DSV/10.06.2022 **CRL.MC NO. 2102 OF 2022** **7** ## **APPENDIX OF CRL.MC 2102/2021** **PETITIONER'S ANNEXURES :** - **ANNEXURE-A1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.949/2015 OF THE VATTIYOORKAVU POLICE STATION.** **ANNEXURE-A2 CERTIFIED COPY OF THE CHARGE SHEET IN CRIME NO.949/2015 OF THE VATTIYOORKAVU POLICE STATION.** **ANNEXURE-A3 TRUE COPY OF THE MEDICAL RECORDS OF THE PETITIONER.** - **ANNEXURE-A4 TRUE COPY OF THE JUDGMENT DATED 22.10.2018 IN CRL.A.NO.2/2017 ON THE FILES OF THE LEARNED FIRST ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM.** - **ANNEXURE-A5 TRUE COPY OF THE JUDGMENT PASSED BY THE SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM DATED 03.05.2017.** - **ANNEXURE-A6 TRUE COPY OF THE PRELIMINARY ORDER ISSUED UNDER SECTION 111 OF THE CRIMINAL PROCEDURE CODE ISSUED TO THE PETITIONER TO THE SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM DATED 06.06.2017.** - **ANNEXURE-A7 TRUE COPY OF THE NEWS PAPER REPORT PUBLISHED ON 03.07.2017 IN JANMABHUMI DAILY.** - **ANNEXURE-A8 TRUE COPY OF THE FINAL REPORT IN CRIME NO.965/2016 OF VATTIYOORKAVU POLICE STATION.** **CRL.MC NO. 2102 OF 2022** **8** ## **ANNEXURE-A9** **TRUE COPY OF THE REPORT DATED 20.03.2017 SUBMITTED BY THE ASSISTANT COMMISSIONER OF POLICE, DISTRICT CRIME BRANCH, THIRUVANANTHAPURAM CITY BEFORE THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM.** ## **ANNEXURE-A10** **CERTIFIED COPY OF THE SUPPLEMENTARY CHARGE SHEET IN CRIME NO.949/2015 OF THE VATTIYOORKAVU POLICE STATION.** ## **ANNEXURE-A11** **CERTIFIED COPY OF THE ORDER DATED 8.9.2020 IN C.M.P.NO.10896/2018 IN C.C. NO.2749/2015 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEDUMANGAD.** **RESPONDENT'S ANNEXURES: NIL**