Arun v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941** **Crl.MC.No. 1667 of 2018** **CC 119/2017 PENDING BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS (TEMPORARY), SASTHAMCOTTA CRIME NO. 272/2017 OF Sooranadu Police Station , Kollam** ## **PETITIONER/ACCUSED:** **ARUN AGED 29 YEARS, S/O. ARAVINDAKSHAN PILLAI,AMBALATHUMBHAGAM MURI, PORUVAZHY VILLAGE,SOORANADU, KOLLAM.** **BY ADV. SRI.P.RAHUL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA (SUB INSPECTOR OF POLICE, SOORANADU POLICE STATION, KOLLAM DISTRICT)REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **SMT. SHEEBA K K PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON 22.05.2019 PASSED THE FOLLOWING:** Crl.M.C.No.1667/2018 2 **"CR"** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.1667 of 2018 ---------------------------------------------Dated this the 22[nd] day of May, 2019 ## **O R D E R** The petitioner is the sole accused in the case C.C.No.119/2017 on the file of the Court of the Judicial First Class Magistrate (Temporary), Sasthamcotta. He seeks to quash the proceedings against him by invoking the power of this Court under Section 482 of the Code of Criminal Procedure, 1973. 2. The prosecution case against the petitioner is that, on 19.02.2017, at about 10.35 hours, at a public road, the Sub Inspector, Sasthamcotta police station found him making obscene gestures having sexual flavour, degrading the dignity of the women who were passing through the road. The Sub Inspector arrested the petitioner from the spot. A case was registered against the petitioner as Crime No. 272/2017 of Sasthamcotta police station under Section 119(1)(a) of the Kerala Police Act, Crl.M.C.No.1667/2018 3 2011. After completing the investigation, the Sub Inspector filed Annexure-B final report against the petitioner in the court concerned for the offence punishable under Section 119(1)(a) of the Kerala Police Act, 2011 (hereinafter referred to as 'the Act'). The petitioner has prayed for quashing the proceedings based on Annexure-B final report on various grounds. 3. Heard learned counsel for the petitioner and the learned Public Prosecutor. 4. Learned counsel for the petitioner has urged for quashing the proceedings against the petitioner on the following grounds: (1) No woman had made any complaint against the petitioner. No woman aggrieved by any act of the petitioner was questioned by the police. No woman aggrieved by any act of the petitioner is cited as a witness in Annexure-B final report. (2) Only the Sub Inspector and two civil police officers are cited as witnesses to prove the incident. No independent public witness is cited. (3) The police officer who detected the offence himself conducted the investigation of the case and it has caused prejudice to the petitioner. (4) Annexure-A first information report or Annexure-B Crl.M.C.No.1667/2018 4 final report does not reveal that the petitioner has committed any act punishable under Section 119(1)(a) of the Act. 5. On the other hand, learned Public prosecutor submitted that considering the nature of allegations and the offence alleged against the petitioner, the proceedings against him cannot be quashed as it involves public interest. 6. Section 119(1)(a) of the Act provides that any person who performs, in public places, any sexual gestures or acts degrading the dignity of women, shall, on conviction, be punished with imprisonment which may extend to three years or with fine not exceeding ten thousand rupees or with both. 7. Section 119(1)(a) of the Act penalizes performance of sexual gestures or acts, in public places, degrading the dignity of women. In order to attract Section 119(1)(a) of the Act, the sexual gesture or act performed by a person in a public place, need not be directed against any particular woman. Any sexual gesture or act performed by a person in a public place, which has the effect of degrading the dignity of women in general, is Crl.M.C.No.1667/2018 5 punishable under Section 119(1)(a) of the Act. The prosecution need not establish that, by the performance of a sexual gesture or act by a person in a public place, dignity of any particular woman was degraded. It is sufficient for the prosecution to establish that sexual gesture or act performed by a person in a public place has degraded the dignity of women as a class. 8. Therefore, the fact that no woman has made any complaint against the act allegedly performed by the petitioner or no woman aggrieved by such act was questioned by the police, is not fatal to the prosecution case against the petitioner. Moreover, as per Section 125(1) of the Act, the offence under Section 119(1)(a) of the Act is cognizable. 9. True, the Sub Inspector who detected the offence and the two civil police officers who were accompanying him, are the only witnesses cited by the prosecution to prove the alleged incident. The proceedings against the petitioner cannot be quashed on that ground. The Sub Inspector and the two civil police officers are eye-witnesses. Whether their evidence would be sufficient to prove the act allegedly performed by the Crl.M.C.No.1667/2018 6 petitioner is a matter to be decided by the trial court. 10. The contention regarding absence of any independent witness to prove the incident overlooks the ground reality that members of the public are generally insensitive and reluctant to come forward and give statement to the police even though a crime is committed in their presence. There is no rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution. The indifferent attitude of the public in the investigation of crimes cannot be ignored. Civilized people are generally insensitive when a crime is committed even in their presence and they would want to keep themselves away from the court unless it is inevitable. One cannot ignore this handicap with which the investigating agency has to discharge its duties (See **Appabhai v. State of Gujarat: AIR 1988 SC 696, State of U.P v. Anil Singh : AIR 1988 SC 1998** and **Ashok Kumar Chaudhary v. State of Bihar : AIR 2008 SC 2436** ). 11. The contention that the police officer who detected the offence himself has investigated the case and filed final report Crl.M.C.No.1667/2018 7 and that it has caused prejudice to the petitioner also cannot be considered at this stage. In **Mohan Lal v. State of Punjab : AIR 2018 SC 3853** , the Hon'ble Supreme Court has held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. However, in **Varinder Kumar v. State of Himachal Pradesh: 2019 (3) SCALE 50,** the Apex Court has clarified that all pending criminal prosecutions, trials and appeals prior to the law laid down in **Mohan Lal** (supra) shall continue to be governed by the individual facts of the case. Therefore, whether any prejudice has been caused to the petitioner for the reason that investigation of the case was conducted by the detecting officer himself, is a matter to be decided after the trial of the case. 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 Crl.M.C.No.1667/2018 8 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 9 Crl.M.C.No.1667/2018 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. 13. Consequently, the petition is allowed. All proceedings against the petitioner in C.C.No.119/2017 on the file of the Court of the Judicial First Class Magistrate (Temporary), Sasthamcotta, based on Annexure-B final report, are quashed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/09/05/2019 Crl.M.C.No.1667/2018 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A. CERTIFIED COPY OF THE FIR AND ATTACHED MAHAZAR, IN CRIME NO.272/2017 OF THE SOORANADU POLICE STATION, KOLLAM DATED 19.02.2017 ANNEXURE B. CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.119/2017 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT (TEMPORARY), SASTHAMCOTTA DATED 19.02.2017** **RESPONDENT'S EXHIBITS:** ## **NIL** **TRUE COPY** **PS TO JUDGE**