Anandan Pillai and Rema v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 13TH DAY OF MARCH 2014/22ND PHALGUNA, 1935 Crl.Rev.Pet.No. 2372 of 2012 () -------------------------------- CRL APPEAL NO.350/2012 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-III), N.PARAVUR CC 1214/2005 of J.M.F.C.-I, ALUVA REVISION PETITIONER(S)/APPELLANTS/ACCUSED: --------------------------------------------- 1. ADV.ANANDAN PILLAI, S/O. AYYAPPAN, PADATHI HOUSE VALAVAZHI ROAD ANGAMALI P.O., ERNAKULAM DISTRICT. 2. REMA, D/O. AYYAPPAN, PADATHI HOUSE VALAVAZHI ROAD ANGAMALI P.O., ERNAKULAM DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------ STATE OF KERLA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-03-2014, THE COURT ON 13.3.2014 PASSED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS, J. ----------------------------------------------Crl.R.P. No.2372 of 2012 ----------------------------------------------Dated 13[th] March, 2014** ## **O R D E R** Revision petitioners are accused Nos.1 and 2 in C.C.No.1214 of 2005 on the file of the Judicial First Class Magistrate I, Aluva. They were charge sheeted by the Sub Inspector of Police, Aluva Police Station for the offences punishable under Sections 353, 294(b) and 225B read with Section 34 of the Indian Penal Code. 2. The prosecution case is that with the intention to rescue the 2[nd] accused in Crime No.8/CR/05 of Panampilly Nagar Police station, who was given custody to CW1 from the Judicial First Class Magistrate I, Aluva, the accused obstructed CW1 at the veranda situated at the western side of the Judicial First Class Magistrate Court building at 12 noon on 26.4.2005, abused him in filthy language, causing annoyance to him and used criminal force against him and thereby, he was deterred from discharging his official duties. 3. On the prosecution side, PW1 to PW7 were examined and Exts.P1 to P3 were marked. No evidence was Crl.R.P.No.2372/12 2 adduced from the defence side. The learned Magistrate, on considering the evidence on record, found that the accused are not guilty under Sections 294(b) and 225B of the I.P.C. and they were acquitted for those offences under Sections 255(1) of the Code of Criminal Procedure and the accused were found guilty for the offence under Section 353 of the I.P.C. and sentenced them to pay a fine of `6,000/- each and in default, to undergo simple imprisonment for two months each. Against that conviction and sentence, both the accused filed Criminal Appeal No.350 of 2012 before the Additional District and Sessions Judge (Ad hoc III), North Paravur, which was dismissed. Against that judgment, the appellants/accused Nos.1 and 2 filed this Criminal Revision Petition. 4. Heard the learned counsel for the revision petitioners and the learned Public Prosecutor. The learned Public Prosecutor supported the judgments of the courts below. 5. The learned counsel for the revision petitioners submitted that even according to PW6, the defacto complainant, immediately after the incident, submitted a Crl.R.P.No.2372/12 3 petition before the court below about the incident and the learned Magistrate forwarded the said petition to the Police Station for investigation of the case. The said petition had already been marked as Ext.P3. In Ext.P3, the only allegation is that by hurling abusive words, the accused obstructed PW6 from doing his official duty. 6. The learned counsel for the revision petitioners invited my attention to the decision of this Court reported in Devaki Amma v. State of Kerala (1981 KHC 313), in which it was held : “4. The wording of S.353 IPC. makes it clear that assault or use of criminal force to a public servant while he was doing his duty as such is a necessary ingredient of that offence. Under S.349 IPC., a person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if be causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, Crl.R.P.No.2372/12 4 etc. What is contemplated under S.353 IPC. is not merely use of force but use of criminal force to any person mentioned therein. Even under S.349 IPC., cessation of motion contemplated was that of the substance which was caused to move. This again indicates that what was mainly intended under the section was use of force to any person. To attract the definition of 'criminal force' under S.350 IPC., there must be intentional use of force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used. In other words, the criminal force contemplated under this section is intended to mean criminal force as applied to a person and not as applied to an inanimate object or substance.” In that decision, it was further held : Crl.R.P.No.2372/12 5 “ A mere obstruction or resistance unaccompanied by criminal force or assault will not constitute an offence under S.353 IPC.” 7. The defacto complainant was examined in the trial court as PW6. PW6 deposed that while he was working as Detective Inspector in Ernakulam Crime Branch, he was the Investigating Officer in Crime No.8/CR/05. The second accused Parameswaran in that case is the brother of both the accused. PW6 deposed that on 26.4.2005 at 12 noon, he produced back four accused persons in that crime from the police custody before the Judicial First Class Magistrate I, Aluva and that he again applied for police custody of accused Nos.1 and 2 in that case and that petition was allowed by the Magistrate. PW6 deposed that when he along with a Head Constable came out of the court hall with the second accused in that crime, both the accused in this case abused PW6 and obstructed him from doing his official duties. PW6 did not depose that both the accused assaulted him or used criminal force while he was Crl.R.P.No.2372/12 6 doing his official duty. The trial court found that there is no evidence to show that the accused created the problem with the intention to rescue their brother from the police custody and hence, the accused are not found guilty of the offence under Section 225B of the I.P.C. The trial court also found that the words stated by the accused in anger will not constitute offence under Section 294(b) of the I.P.C. and hence, the accused persons cannot be found guilty under Section 294(b) of the I.P.C. 8. The mere obstruction or resistance without using criminal force or assault is not an offence under Section 353 of the I.P.C. The testimony of PW6 will not prove that both the accused assaulted or used criminal force in order to deter PW6 from discharging his official duty. Therefore, both the accused have not committed an offence under Section 353 of the I.P.C. In that view of the matter, the trial court and the appellate court went wrong in convicting both the accused under Section 353 of the I.P.C. Accordingly, this Criminal Revision Petition is Crl.R.P.No.2372/12 7 allowed. The conviction and sentence of both the accused in C.C.No.1214 of 2005 on the file of the Judicial First Class Magistrate I, Aluva under Section 353 of the I.P.C. is set aside and both the accused are found not guilty of that offence and they are acquitted and set at liberty. Their bail bonds are cancelled. The fine amount, if any, remitted by the accused before the trial court will be refunded to them. Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)