Criminal Miscellaneous Case (Crl.M.C. No. 5079/2023)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 CRL.MC NO. 5079 OF 2023 ``` ``` ST 435/2019 OF GRAMA NYAYALAYA, RANNI, PATHANAMTHITTA. ``` ``` PETITIONERS/ACCUSED 11, 15, 30, 38, 40, 43 AND 65: ``` - `1 PRADEEP AGED 41 YEARS S/O THANKAPPAN, RESIDING AT PULLIMOOTTIL HOUSE, KUMARAPURAM P.O., CHAKKALAMUGAL, KUNNATHUNAD, ERNAKULAM DISTRICT, PIN - 683565` - `2 SREEKANTH P.S. AGED 43 YEARS S/O SANKARAN KARTHA, AGED 43 YEARS, RESIDING AT PUTHENILLAM, NORTH EZHIPPURAM, MARAMPILLY P.O., ERNAKULAM DISTRICT, PIN - 683105` - `3 BIPIN P.K. AGED 33 YEARS S/O KUTTAPPAN P.A., RESIDING AT PALLIMOLATH (H), PINARMUNDA, PERINGALA P.O., KUNNATHUNAD, ERNAKULAM DISTRICT, PIN - 683565` - `4 PRAVEEN KUMAR BHAT. P. AGED 37 YEARS S/O PURUSHOTHAMA BHAT, AGED 37 YEARS, RESIDING 8/121, KERALESWAR LANE, MATTANCHERY, ERNAKULAM DISTRICT, PIN - 682002` - `5 RAGHURAMA PAI. J. AGED 42 YEARS S/O K. JAYANANDA PAI, RESIDING AT 8/238, A.T.D., WEST GATE, GOSREEPURAM, KOCHI, ERNAKULAM DISTRICT, PIN - 682002` - `6 SIVARAJAN AGED 56 YEARS S/O APPU, RESIDING AT PANTHAYIL HOUSE, KANDANASSERY, ARIYANNUR P.O., THRISSUR DISTRICT, PIN - 680102` - `7 ANIL KUMAR K.A. AGED 51 YEARS S/O ASHOKAN, RESIDING AT KARIKKATHARA HOUSE, GANESHAMANGALAM, VADANAPPALLY P.O., THRISSUR DISTRICT, PIN - 680616 BY ADVS. SAJITH KUMAR V.` CrlM.C..No.5079/2023 **2** ``` VIVEK A.V. GODWIN JOSEPH ALKA WARRIAR NEERAJA VENUGOPAL TINU M. SAJU ``` ## **`RESPONDENTS/STATE AND COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (THROUGH THE SUB INSPECTOR OF POLICE, SANNIDHANAM POLICE STATION), ERNAKULAM DISTRICT, PIN - 682031 2PRAJEESH T.C. SUB INSPECTOR OF POLICE, SANNIDHANAM POLICE STATION, SABARIMALA SANNIDHANAM, PATHANAMTHITTA DISTRICT, PIN - 689713 ``` ## **`OTHER PRESENT:`** ``` SREEJA. V PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CrlM.C..No.5079/2023 **3** ## **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No.5079 of 2023 ---------------------------------------------Dated this the 18[th] day of October, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. Petitioners are accused Nos.11, 15, 30, 38, 40, 43 and 65 in S.T.No.435/2019 on the file of the Gramanyayalaya, Ranni, arising from Crime No.21/2018 of Sannidhanam Police Station. The above case is charge-sheeted alleging offences punishable under Sections 143, 144, 147, 353 and 188 read with Section 149 of the Indian Penal Code. The case was registered in connection with Shabarimala issue. The alleged incident happened on 17.11.2018. As per Annexure-E order, this Court quashed the proceedings against accused Nos.1 and 27. It is submitted that same principle is applicable to the petitioners also. Hence this Crl.M.C. 3. Heard the learned counsel for the petitioners and CrlM.C..No.5079/2023 **4** the learned Public Prosecutor. 4. After hearing the counsel for the petitioners and the Public Prosecutor, and also going through Annexure-E order, I think the case against the petitioners also can be quashed. The relevant portion of Annexure-E is extracted hereunder: 4. One of the crucial contentions raised by the petitioners is that, as far as the offence under Section 188 of IPC is concerned, under no circumstances, cognizance can be taken by the learned Magistrate based on the Police report submitted under Section 173(2) Cr.P.C. According to him, in the light of the specific prohibition contained under Section 195(1) (b) of Cr.P.C., the cognizance taken for the said offence is unsustainable. On perusal of the records, it is seen that the learned Magistrate has taken cognizance of the offence punishable under Section 188 IPC. As rightly pointed out by the learned counsel for the petitioner, in the light of the statutory stipulation contemplated under Section 195(1)(a) of Cr.P.C, no cognizance can be taken by a court for the offence punishable under Section 188 IPC, except on a complaint submitted by a public servant whose orders are allegedly violated by the accused persons or the public servant to whom he is administratively CrlM.C..No.5079/2023 **5** subordinate. In this case, the specific allegation against the accused persons is that the activities committed by the petitioners and other accused were in violation of the prohibitory orders passed by the District Magistrate. Hence, it was not possible for the court to take cognizance based on the final report submitted by the Police under Section 173(2) Cr.P.C. Therefore, to the extent the prosecution based on cognizance taken by the learned Magistrate for the offence under Section 188 IPC is legally unsustainable and liable to be quashed. 7. Moreover, to attract the offence under Section 353 IPC, there must be a commission of some acts by the accused, which amounts to ‘criminal force’ or ‘assault’, as defined under Section 350 and 351 IPC, respectively. On going through the allegations in the final report, I am unable to find any materials which would indicate any ‘criminal force’ as defined under Section 350 IPC or ‘assault’ as defined under Section 351 IPC were made. The accused were sitting and chanting slogans in protest, which by itself cannot be treated as exercising ‘criminal force’ or committing assault. When the right to protest is a fundamental right and protected under the Constitution of India, holding such a protest peaceably cannot be treated as an act amounting to ‘criminal force’. Similarly, for attracting the ‘assault’ as defined under section 351, the accused must have made a gesture or CrlM.C..No.5079/2023 **6** preparation intending or knowing that such gesture or preparation is likely to cause apprehension to any person present that the person making such gesture or preparation is about to use criminal force. Here also, one of the ingredients is ‘criminal force’; though an apprehension of such criminal force alone is sufficient. As mentioned above, when the act committed by the person is coming within the sphere of fundamental rights, it cannot be treated as an act where there exists criminal force. The learned counsel for the petitioners also placed reliance upon a decision rendered by this Court in **Hariprasad and another v. State of Kerala [ILR 2017(2) Kerala 395],** wherein the circumstances in which offence under Section 353 IPC would be attracted are discussed. I am in agreement with the principles laid down in the said judgment. Thus, from a careful examination of the materials placed on records, including the allegations contained in Annexure-C final report, it can be seen that it did not contain the necessary materials for attracting the offence under Section 353 IPC. 10. While arriving at the said view, I am conscious of the fact that the final report contains a vague allegation that some of the accused pushed some of the police officers. However, in the facts of the case, I am of the view that such an allegation is not sufficient to hold that there was the application of criminal force. First of all, the details of the CrlM.C..No.5079/2023 **7** persons who allegedly committed that specific act are not mentioned in the final report. Moreover, it is also evident that such an incident occurred when the police tried to remove the protestors from the place of occurrence forcibly. Therefore, at the most, it could be an instantaneous response by some of the members of the assembly to the forcible removal and it cannot be treated as the common object of the assembly so as to make the same an unlawful assembly. 11. There is yet another aspect. The said alleged acts are trivial and I am of the view that such act would not make out any offence. This court, in **Narayanan and Ors. v. State of Kerala [1987 CriLJ 741].** In paragraph 5 of the said decision, it was observed as follows: 5. When considering the question whether the acts alleged against the petitioners would amount to an offence of wrongful restraint, the maxim "de minimis non curat lex" (the law does not take account of trifles) should be borne in mind if the harm caused or intended to be caused is so slight that no person of ordinary sense and temper would complain of such harm. The above principle is embodied' in Section 95 of the Code. The definitions of various offences in the Code are so framed as to bring a number of activities within the letter of the penal law. If we are to go by the definitions alone, "it is theft to dip a pen in another man's ink, it is mischief to crumble one of his wafers, it is assault to cover him with a cloud of dust by riding past him, it is hurt to incommode by pressing against him in getting into a carriage." At the same time those are but few of the innumerable acts without the performance of which men cannot live together in society, and acts which it is desirable that they CrlM.C..No.5079/2023 **8** should do. It depends upon the degree of the acts and that is why the authors of the Code took particular care in striking a note of caution by incorporating Section 95 in the Code. 5. In the light of the above order, the proceedings against the petitioners will not stand. Therefore, the proceedings against the petitioners also can be quashed. Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioners in S.T.No.435/2019 on the file of the Gramanyayalaya, Ranni, arising from Crime No.21/2018 of Sannidhanam Police Station, are quashed. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** CrlM.C..No.5079/2023 **9** ## **`APPENDIX OF CRL.MC 5079/2023`** |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`Annexure A`|`CERTIFIED COPY OF THE FIR DATED`| ||`18.11.2018 IN CRIME NO. 21/2018 OF THE`| ||`SANNIDHANAM POLICE STATION.`| |`Annexure B`|`CERTIFIED COPY OF THE FINAL REPORT`| ||`DATED 17.01.2019 IN CRIME NO. 21/2018`| ||`OF SANNIDHANAM POLICE STATION, PENDING`| ||`AS S.T. NO. 435/2019 BEFORE THE`| ||`HON'BLE GRAMANYAYALAYA, RANNI.`| |`Annexure C`|`A TRUE COPY OF THE STATEMENT MADE BY`| ||`THE CW2 UNDER SECTION 161 CRPC.`| |`Annexure C(a)`|`A TRUE COPY OF THE STATEMENT MADE BY`| ||`THE CW5 UNDER SECTION 161 CRPC.`| |`Annexure C(b)`|`A TRUE COPY OF THE STATEMENT MADE BY`| ||`THE CW6 UNDER SECTION 161 CRPC.`| |`Annexure C(c)`|`A TRUE COPY OF THE STATEMENT MADE BY`| ||`THE CW7 UNDER SECTION 161 CRPC.`| |`Annexure C(d)`|`A TRUE COPY OF THE STATEMENT MADE BY`| ||`THE CW8 UNDER SECTION 161 CRPC.`| |`Annexure C(e)`|`A TRUE COPY OF THE STATEMENT MADE BY`| ||`THE CW9 UNDER SECTION 161 CRPC.`| |`Annexure C(f)`|`A TRUE COPY OF THE STATEMENT MADE BY`| ||`THE CW10 UNDER SECTION 161 CRPC.`| |`Annexure C(g)`|`A TRUE COPY OF THE STATEMENT MADE BY`| ||`THE CW11 UNDER SECTION 161 CRPC.`| |`Annexure D`|`A TRUE COPY OF THE G.O.(CRI.) NO.`| ||`70/2021/HOME DATED 26.02.2021 ISSUED`| ||`BY THE SECRETARY, DEPARTMENT OF HOME`| ||`AFFAIRS, GOVERNMENT OF KERALA.`| |`Annexure E`|`A TRUE COPY OF THE ORDER DATED`| ||`15.11.2022 IN CRL. M.C. NO. 7534/2022`| ||`OF THIS HON'BLE COURT.`| |`Annexure F`|`A TRUE COPY OF THE ORDER DATED`| ||`04.04.2023 IN CRL. M.C. NO. 903/2023`| ||`OF THIS HON'BLE COURT.`|