Bhargavan Pillai v. The State of Kerala and G.K. Sailakumari

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933** **Crl.MC.No. 2533 of 2010()** **-------------------------** **CC.537/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD** **....................** **(CRIME NO.329/09 OF VITHURA POLICE STATION)** **....** **PETITIONER(S): ACCUSED:** **------------------------------------------** **BHARGAVAN PILLAI, S/O.VISWANATHA PILLAI, AGED 55, 'ASWATHI', MARUTHUMMOODU, CHETTACHAL P.O., VITHURA, THIRUVANANTHAPURAM - 695 551.** **BY ADV. SRI.K.B.PRADEEP** ## **RESPONDENT(S): COMPLAINANT & DE FACTO COMPLAINANT:** **----------------------------------------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. SMT.G.K.SAILAKUMARI, SECRETARY, CHAYAM SERVICE CO-OPERATIVE BANK LTD.NO.1514, CHETTACHAL P.O., VITHURA, THIRUVANANTHAPURAM-695 551.** **R1 BY PUBLIC PROSECUTOR SRI. JAYASURYA R2 BY ADVS. SRI.M.FATHAHUDEEN, SRI.LATHEESH SEBASTIAN.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Kss** ## **CRMC.NO.2533/2010** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX.A: COPY OF THE COMPLAINT DTD. 19/06/2009. ANNEX.B: COPY OF THE F.I.R. NO.328/09 DTD. 19/06/2009 OF THE VITHURA POLICE STATION.** **ANNEX.C: COPY OF THE DRAFT CHARGE IN CRIME NO.329/09 DTD. NIL PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, NEDUMANGAD.** ## **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **THOMAS P JOSEPH, J.** ## **----------------------------------------** ## **Crl.M.C.No.2533 of 2010** ## **---------------------------------------** ## **Dated this 22[nd] day of June, 2011** ## **ORDER** Petitioner, at the relevant time was working as a salesman in a co-operative society. The second respondent then was Secretary of that society. It is said that petitioner had moved an application for loan from his provident fund and was awaiting favourable response from the second respondent. On 19.06.2009 at about 2.55p.m, it is alleged, petitioner entered the office room of the second respondent in the premises of the society and raised sound claiming that (his) provident fund does not belong to the father of second respondent and thus deterred the second respondent from discharging her official duty. The Vithura police registered Crime No.328 of 2009 and after investigation submitted final report before learned Judicial First Class Magistrate-II, Nedumangad for offences punishable under Secs.353 and 294(b) of the Indian Penal Code (for short, "the IPC”). Learned Magistrate took cognizance of the said offences and filed C.C.No.537 of 2009 against petitioner. Petitioner seeks to quash proceeding against him contending that the allegations against him are not correct and that none of the offences charged Crl.M.C.No.2533 of 2010 -: 2 :- against him is attracted on the materials produced by the police. and circumstances of the case. Learned counsel contended that Secretary of a society is not a 'public servant' as defined in Sec.21 of the IPC. Learned counsel for the second respondent has contended that second respondent is a 'public servant' as per clause 12th of Sec.21 of the IPC. I have heard learned Public Prosecutor also. 2. Sub clause 12th of Sec.21 of the IPC deals with persons, (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government. (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Sec.617 of the Companies Act, 1956. Second respondent has not in the service or pay of the Government or remunerated by fee or commission for the performance of the public duty of the Government. She is employed by a society which is registered under the provisions of the Co-operative Societies Act. The society is not established by the said Act but is only registered under provisions of the said Act. It cannot be said that she is in the service or pay of a local Crl.M.C.No.2533 of 2010 -: 3 :- authority or a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Sec.617 of the Companies Act. It cannot also be said that the society is a Government company as defined in Sec.617 of the Companies Act. The position of a Government servant who, on deputation was working with a Co-operative society was considered in **Navaikulam Cashew Workers Industrial Co op. Society Ltd. v. Enforcement Officer** ( **2009(3) KLT 1039** ) and it was held that though, on deputation to a Co-operative Society registered under the provisions of the Kerala Co operative Societies Act his duties and responsibilities are prescribed and governed by the said Act and the bye-laws framed thereunder and hence cannot be said to be a 'public servant' acting on behalf of the Government. For the purpose of this case it is not however necessary to decide whether the second respondent is a public servant or not. 3. The question is whether prosecution against petitioner has to be terminated pre-maturely. I referred to the allegations made against petitioner. I have also gone through the final report as well as statement of the witnesses including the second respondent. To attract Sec.294(b) of the IPC the words Crl.M.C.No.2533 of 2010 -: 4 :- allegedly uttered must satisfy the test of 'obscenity' as decided in **P.T.Chacko Vs. Nainan Chacko (1967 KLT 799), Chacko George Vs. State of Kerala** ( **1968 KLT 219)** and **Preethimon v. State of Kerala** ( **2008(2) KLT 666).** It is held that the test of obscenity is whether tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influence and that the words uttered must be capable of arousing sexually impure thoughts in the minds of the hearers. The allegation in the present case is that petitioner (allegedly) told the second respondent that (his) provident fund does not belong to her father. I am not inclined to think that the said utterance even if made would stand the test of obscenity as above stated and made out any offence under Sec.294(b) of the IPC. 4. So far as Sec.353 of the IPC is concerned, it deals with assault or criminal force to deter a public servant in the discharge of duty with intend to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or admitted to be done by such person in the lawful discharge of his duty. Here, the allegation is that petitioner raised his voice in the office room of the second respondent and said that the provident fund does not belong to Crl.M.C.No.2533 of 2010 -: 5 :- her father. Apart from saying so, none of the witnesses including the second respondent has stated in what way the official duty of second respondent was obstructed. Annexure-A, complaint preferred by the second respondent to the Sub Inspector and based on which case was registered does not even say that the official duty of the second respondent was obstructed or that petitioner intended to do so. Nor do the circumstances indicate that petitioner, by saying so intended to obstruct the official duty of second respondent. For, even as per the version of prosecution he was aggrieved by the alleged delay in not sanctioning his loan from the provident fund. According to the petitioner even applications preferred subsequent to his application were favourably considered. Viewed in the above circumstances I am not inclined to think that the offence under sec.353 of the IPC is even prima facie made out, since none of the witnesses has stated in what way the official duty of second respondent was obstructed they cannot be permitted to improve their version in the course of trial and make out a case. In the circumstance, proceeding against petitioner is to be terminated since it will be a wasteful exercise to proceed with the matter. Crl.M.C.No.2533 of 2010 -: 6 :- Resultantly this criminal miscellaneous case is allowed. Proceeding against petitioner in C.C.No.537 of 2009 of the Court of learned Judicial First Class Magistrate-II, Nedumangad (arising from the final report in Crime No.328 of 2010 of Vithura Police Station) is quashed. **(THOMAS P JOSEPH, JUDGE)** Sbna/-