Annie George v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945 CRL.MC NO. 2830 OF 2023`** ## **`PROCEEDINGS IN C.C.NO.289/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THODUPUZHA`** ## **`PETITIONER/ACCUSED:`** ``` ANNIE GEORGE, AGED 56 YEARS, PARUNTHANANIYIL (H) MUTHALAKODAM P.O PATTAYAMKAVALA, NEAR MUNNA LODGE, THODUPUZHA, IDUKKI, PIN – 685 605. BY ADVS. JOSEPH KIRAN D. THEKKEKARA DAVIS PIUS RESHMA R.NAIR RESHMA S.MENON JEO GEORGE ``` ## **`RESPONDENT/STATE:`** ``` 1STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. 2ADDL. R2 SREEKALA.V.KRISHNAN, VARIKKAMAKKAL (H), VELLIYAMATTOM, THODUPUZHA – 685 588. ``` ``` IS IMPLEADED AS PER ORDER DATED 13.04.2023 IN CRL.M.A.NO.2/2023 IN CRL.M.C.2830/2023. ``` ``` SRI NOUSHAD K.A. (SR PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC NO.2830 OF 2023 2 ## ORDER The petitioner is the accused in C.C.No.289 of 2017 on the file of the Judicial First Class Magistrate Court, Thodupuzha, where the petitioner faces allegations of having committed offences under Sections 341, 294(b), 353 and 506(1) of the Indian Penal Code. The allegation against the petitioner is that on 27.12.2016 at 12.30 p.m., while the petitioner was working as a temporary employee in the National Insurance Company and the de-facto complainant was working as the Assistant Manager of the said company, the petitioner unlawfully restrained the defacto complainant, had intimidated her and threatened her by using foul language. 2. The learned counsel appearing for the petitioner would submit that even assuming all the statements contained in the First Information Statement of the de-facto complainant are true, the offences alleged against the petitioner will not sustain. It is submitted that nothing in the final report indicates that the offence under Section 294(b) has been committed in the facts and circumstances of the case. It is submitted that the allegedly obscene words used by the petitioner are not mentioned in the CRL.MC NO.2830 OF 2023 3 Final Report. It is submitted that the offence, under Section 341 of the Indian Penal Code, can be alleged to have been committed only if the petitioner had prevented the de-facto complainant from proceeding beyond certain circumscribing limits. Reference is made in this regard to the definition of ‘wrongful confinement’ under Section 340 of the Indian Penal Code. It is submitted with reference to the judgment of this Court in Hariprasad v. State of Kerala ; 2016 SCC Online KER 34664, that the offence under Section 353 of the Indian Penal Code is attracted only if the ingredients of the offence as explained in paragraph 8 of the judgment in Hariprasad (supra) are attracted. It is submitted that the only other offence alleged is under Section 506(1) of the Indian Penal Code. It is submitted that on a reading of the final report, it cannot be said that the offence under Section 506(1) of the Indian Penal Code has been attracted as the mere expression of any threatening words without any intention to cause alarm would not constitute an offence for the purposes of Section 506(1) of the Code. The counsel relies on the Supreme Court's judgment in Manik Taneja and Another v. State of Karnataka and Another; (2015) 7 SCC 423. 3. The learned Public Prosecutor submits that no CRL.MC NO.2830 OF 2023 4 grounds have been made out for interference under Section 482 Cr.P.C. It is submitted that it is for the petitioner to face trial and prove that none of the offences alleged are not attracted in the facts and circumstances of the case. Though notice was issued to the de-facto complainant, and such notice was served on the defacto complainant, there is no appearance for the de-facto complainant. 4. Having heard the learned counsel appearing for the petitioner and the learned Public Prosecutor, I am of the view that the petitioner is entitled to succeed. It is clear from the judgment of this Court in Preethimon v. State of Kerala ; 2008 (2) KLT 666 that to sustain prosecution for the offence under Section 294(b) of the Indian Penal Code, the allegedly obscene words used by the accused have to be clearly spelt out. A reading of the final report in this case does not indicate the exact words allegedly used by the petitioner/accused. The allegations against the petitioner as contained in column No.16 of the Final Report are as follows:- "പ്രതികക 1-)o സാക്ഷിേ യാട് ഉണ്ടായ മുൻ വിരോധം നിമിത്തം 1-)o സാക്ഷിയുടെ ഔദ്യോഗിക കൃത്യനിർവഹണം തടസ്സപ്പെടുത്തണമെന്നും ചീത്ത വിളിച മനനോവിഷമപ്പെടുത്തണമെന്നുംഭീഷണിപ്പെടുത്തണമെന്നും ഉള്ള ഉദ്ദേശ്ത്തോടും കരുതലോടും കൂടി 27.12.2016 തീയതി CRL.MC NO.2830 OF 2023 5 12.30 P.M മണികക പ്രതി National Insurance Company യുടെ ഏജന്റായും 1-)o സാക്ഷി Asst. Manager ആയും ജജോലി ചെയ്തു വരുന്ന ത തൊടുപുഴ വില്ലേജ് ത തൊടുപുഴ കരയിൽ ആദം സ്റ്റാർ ജംഗ്ഷൻ ഭാഗത്തു തെക്കു-വടക്കായി കിടക്കുന്ന ത തൊടുപുഴ-മൂവാറ്റുപുഴ പബ്ലിക് റോഡിന്റെ പടിഞ്ഞാറ് വശം ഭാഗത്തു സ്ഥിതി ചെയ്യുന്ന പുളിമൂട്ടിൽ ആർക്കേ ഡ് കെട്ടിടത്തിന്റെഒന്നാം നിലയിൽ സ്ഥിതിചെയ്യുന്ന നാഷണൽ ഇൻഷുറൻസ് കമ്പനിത തൊടുപുഴ ശാഖയുടെ പടിഞ്ഞാറ് ഭാഗം മുൻവശം വരാന്തയിൽ വച പ്രതി 1-)o സാക്ഷിയുടെ മുന്നിൽ വന്നു കയറി നിനന അന്യായ തടസ്സം ചെയ്തും പറഞ അസഭ്യം മനനോവിഷമപ്പെടുത്തിയും ഭീഷണിപ്പെടുത്തി മരണ ഭയം ജനിപ്പിച്ചും ഇൻഷുർ ഫ ോ ചെയ്യേ ണ്ട വാഹനങ്ങളുടെ ്ട്ടോ എടുക്കാൻ 1-)o തടഞ സാക്ഷിയെ താഴേകക വിടാതെ ഞ ഔദ്യോഗിക കൃത്യനിർവഹണം തടസ്സപ്പെടുത്തിയും പ്രതി മേൽ വകുപ പ്രകാരം ഉള്ള കുറ്റം ചെയ്തിരിക്കുന്നു എനന ഉള്ളത്.” Therefore, the petitioner cannot be prosecuted for committing the offence under Section 294(b) of the Indian Penal Code. 5. To attract the offence under Section 341 of the Indian Penal Code, there must be a wrongful confinement as defined in Section 340 of IPC. Apart from the statement that the petitioner had prevented the de-facto complainant from proceeding by intimidating her and threatening her, there is nothing to suggest that she had been confined to any circumscribing limits in which event alone, the offence punishable under Section 341 Indian Penal Code can be said to be attracted. In the absence of any CRL.MC NO.2830 OF 2023 6 material to suggest that the de-facto complainant was kept within certain circumscribing limits, I am of the view that the petitioner cannot be prosecuted for having committed the offence under Section 341 of the Indian Penal Code. 6. Coming to the offence under Section 353 of the Indian Penal Code, this Court in Hariprasad (supra ) held as follows:- “8. Section 353 contemplates the prerequirements as follows for the offence to be attracted:- i. Assault or criminal force must be there. ii. The person against whom assault or criminal force is alleged must be a public servant. iii. The public servant was in the lawful execution of his duty as a public servant. iv.The assault or criminal force must be exercised with intention to prevent or deter the public servant from discharging his duty. v. The use of criminal force must be intentional. vi. The use of criminal force must be without the consent of the person. vii.By the use of criminal force, motion, change of motion or cessation of motion of the public servant must have been caused. viii.Use of criminal force must be with intention to cause or with knowledge that the same is likely to cause injury, fear or annoyance to the person to CRL.MC NO.2830 OF 2023 7 whom it is used.” A reading of the Final Report does not suggest that the ingredients of the offence under Section 353 of the Indian Penal Code, as explained in Hariprasad (supra) are attracted in the facts of this case. Therefore, the petitioner cannot be prosecuted for having committed the offence under Section 353 of the Indian Penal Code. 7. Coming to the offence under Section 506 of the Indian Penal Code, the Supreme Court in Manik Taneja (supra) held as follows:- “12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "Criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was CRL.MC NO.2830 OF 2023 8 no intention on the part of the appellants to cause alarm in the minds of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in Section 503 IPC.” In the facts of the present case, the ingredients of an offence under Section 506 of the Indian Penal Code is also not attracted. In the aforesaid circumstances, the Crl.M.C is allowed and all further proceedings against the petitioner in C.C.No.289 of 2017 on the file of the Judicial First Class Magistrate Court, Thodupuzha, arising out of Crime No.2247 of 2016 of Thoudupuzha Police Station, will stand quashed, as against the petitioner. Sd/GOPINATH P. JUDGE DK CRL.MC NO.2830 OF 2023 9 ## **`APPENDIX OF CRL.MC 2830/2023`** ``` PETITIONER ANNEXURES Annexure A1A TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 2247//2016 OF THODUPUZHA POLICE STATION Annexure A2TRUE COPY OF THE FINAL REPORT IN CC 289 OF 2017 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THODUPUZHA ```