Crl.M.C. Nos. 2645/2017 & 1398/2019 (Kunjabdulla v. State of Kerala; C. Murali v. State of Kerala)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** **CRL.MC NO. 2645 OF 2017** **AGAINST THE ORDER/JUDGMENTCC 213/2017 OF JUDICIAL** **MAGISTRATE OF FIRST CLASS - II, PERAMBRA** ## **PETITIONER/S:** - **1 KUNJABDULLA AGED 56 YEARSS/O. RAJAB, ADVOCATEPEROOLI HOUSEAYINIKKAD.P.O., KOZHIKODE DISTRICT** - **2 DHANITH KRISHNAN AGED 45 YEARSS/O.KRISHNANADVOCATEMEETHALEKKAYAMTHOTTATHIL HOUSE, EDODI, VADAKARA, KOZHIKODE DISTRICT BY ADVS. SRI.M.RAJENDRAN NAIR SMT.M.SANTHY** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTORHIGH COURT OF KERALA, ERNAKULAM** - **2 A.PRADEEP KUMAR ASSISTANT EDUCATIONAL OFFICERMELADY, KOZHIKODE DISTRICT BY ADV SRI.M.G.SREEJITH ADV. VIPIN NARAYANAN - PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.Nos.2645/2027 & 1398/2019 : 2 : # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY,THE 20[TH] DAY OF OCTOBER 2022/28TH ASWINA, 1944 CRL.MC NO. 1398 OF 2019** **CRIME NO.714/2015 OF Payyoli Police Station, Kozhikode AGAINST THE ORDER/JUDGMENTCC 213/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, PERAMBRA** ## **PETITIONER/S:** **1 C.MURALI AGED 52 YEARS S/O GOPALAN NAIR, RESIDING AT CHEMBANTAVIDA HOUSE, PO. TIKKODI, KOZHIKODE-673529. 2 P.SIVAN AGED 48 YEARS S/O. GOVINDAN, RESIDING AT POOVOLI HOUSE, PO. TIKKODI, KOZHIKODE-673529. BY ADVS. V.V.SURENDRAN SRI.P.A.HARISH SMT.RESMI NANDANAN** ## **RESPONDENT/S:** **1 A PRADEEPKUMAR ASSISTANT EDUCATIONAL OFFICER, PO. MELADY, KOZHIKODE-673 522. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. ADV. SRI. VIPIN NARAYANAN, P.P.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.10.2022, ALONG WITH Crl.MC.2645/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.Nos.2645/2027 & 1398/2019 : 3 : ## **ORDER** ## **Dated this the 20[th] day of October, 2022** [Crl.M.C. Nos.2645/2017 & 1398/2019] The petitioners in these Crl.M.C.s are accused in C.C. No.213/2017 on the file of the Judicial First Class Magistrate Court, Perambra. Crl.M.C. No.2645/2017 is filed by accused Nos.2 and 4, whereas Crl. M.C. No.1398/2019 is filed by accused Nos.1 and 3. The offences alleged against the petitioners are under Sections 143, 147, 448, and 353, read with Section 149 of the Indian Penal Code. The aforesaid crime was registered based on a complaint submitted by the 2[nd] respondent, who was the Assistant Educational Officer, Melady. 2. The prosecution case is as follows: As per the direction of this Court, a hearing was conducted by the 2[nd] respondent in his capacity as Assistant Educational Officer, Melady, to resolve a dispute relating to the Management of Thrikkottur Aided UP School. The aforesaid hearing was scheduled to be conducted on 29.10.2015 at 11 a.m. In the said hearing, accused No.1, along with the 4[th] accused, his counsel, Crl.M.C.Nos.2645/2027 & 1398/2019 : 4 : appeared for the hearing. However, the defacto complainant did not permit the 4[th] accused to appear for the hearing, as according to him, he being an Advocate, cannot be permitted to appear for hearing. Later, all the accused together came to the office of the 2[nd] respondent/defacto complainant and interfered with the discharge of his duty by obstructing the hearing of the same. It is also alleged that the 2[nd] accused tried to take photographs despite the objection of the defacto complainant. The complaint was submitted in such circumstances by the 2[nd] respondent/defacto complainant, on the basis of which, Annexure-A1 FIR was registered. After conducting an investigation thereon, Annexure-A2 final report was submitted by the Payyoli Police for the offences mentioned above, and later cognizance was taken by the learned Magistrate. These Crl.M.C.s are filed by the petitioners for quashing all further proceedings pursuant to Annexure-A2. 3. Heard Sri. M. Rajendran Nair, the learned counsel appearing for the petitioners in Crl.M.C. No. 2645/2017, Sri. V.V. Surendran, the learned counsel appearing for the petitioners in Crl.M.C. No.1398/2019 and Sri. Vipin Narayanan, the learned Crl.M.C.Nos.2645/2027 & 1398/2019 : 5 : Public Prosecutor for the State. 4. Even though the notice was issued to the 2[nd] respondent in Crl.M.C. No.2645/2017, there is no appearance for him despite the service of the notice. 5. The learned counsels for the petitioners contend that even if the allegations made in Annexure-A2 final report and the materials placed along with the same are accepted for their face value, no offences are made out. The contention of the petitioners is that none of the offences would be attracted against them, as all of them were parties to the litigations in different capacities, i.e. accused 1 and 3 being the representatives of the School, which is a party to the proceedings and accused 2 and 4 being the Advocates appearing for the parties concerned. 6. On the other hand, the learned Public Prosecutor would oppose the aforesaid contention. 7. I have gone through the records and heard the contentions raised from either side. From Annexure-A2, it can be seen that the offences alleged against the petitioners are under Sections 143, 147, 448, and 353, read with Section 149 of the Indian Penal Code. Section 448 of the Indian Penal Code deals Crl.M.C.Nos.2645/2027 & 1398/2019 : 6 : with house trespass. When the facts of this case are considered, it is evident that, the petitioners have appeared before the 2[nd] respondent based on a direction issued by this Court for a hearing, and they were also served with a notice of hearing which was scheduled on that particular day. Even as per the averments made in the said complaint, it is mentioned explicitly that at the relevant time, the hearing being conducted was that of a matter relating to the School. Therefore, since the accused persons were parties to the aforesaid proceedings in their respective capacities (as the representatives of the School and the Advocates who represented the School) were having the right to attend the hearing and hence, it cannot be treated as a trespass warranting a prosecution under Section 448 of the Indian Penal Code. ## 8. The other offence is under Section 353 of the Indian Penal Code. The aforesaid provision reads as follows: ## **353. Assault or criminal force to deter public** **servant from discharge of his duty** -- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a Crl.M.C.Nos.2645/2027 & 1398/2019 : 7 : term which may extend to two years, or with fine, or with both.” 9. The learned counsel for the petitioner relies on the decision rendered by this Court in **Durga Prasad v. State of Kerala** [2014 (4) KLT SN 8(C.No.9)]. In the said decision, it is held that to attract the offence under Section 353 of the Indian Penal Code, one of the essential ingredients is the use of criminal force or assault. “Criminal force’ is defined under section 350 of the IPC, which reads as follows: “ **350. Criminal force** :- Whoever intentionally uses 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, is said to use criminal force to that other.” To constitute criminal force, there must be a physical act either causing motion or cessation of motion of a person. When going through the allegation contained in the complaint submitted by the defacto complainant and also in the final report, it can be seen that, apart from the allegations of raising a voice, there is no allegation that any of the accused persons ever committed any physical obstruction. Therefore, it is evident that no criminal force as defined under Section 350, read along with the definition of force as contemplated under Section 349, can be said to have Crl.M.C.Nos.2645/2027 & 1398/2019 : 8 : been used during the said incident. 10. Assault is another ingredient which can attract the offence under section 351 of IPC. The terms assault is defined under section 351, which reads as follows: “ **351. Assault** -- Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.” For attracting section 351, there must be an act of the accused by which he had shown a gesture or made preparation to cause apprehension that the accused is likely to use criminal force. In this case, the facts of the case, as revealed from the prosecution materials is that, the accused reached the place of occurrence to attend a hearing based on a notice issued in this regard by the defacto complainant. Some exchange of words occurred when the petitioners were denied permission to participate in the hearing. On the perusal of the materials placed on record and considering the allegations, I am of the view that, since the petitioner appeared before the defacto complaint in response to a notice of hearing, no culpability can be attributed against them for attracting the offence. Crl.M.C.Nos.2645/2027 & 1398/2019 : 9 : 11. Therefore, the offence under Section 353 would not be attracted in the facts and circumstances of the case. It is true that there is also an allegation that the 2[nd] accused took photographs of the incident, despite the objection by the defacto complainant. However, in my view, the said act by itself would not attract any of the offences alleged against the petitioners, as the same would not amount to applying criminal force, which is one of the necessary ingredients for attracting the offence under Section 353 of the Indian Penal Code. 12. The remaining offences are under Sections 143 and 147. As far as the offences under Sections 143 and 147 is concerned, for attracting the aforesaid offences, there must be an unlawful assembly for which a minimum of five persons are required. Even going by the allegations in the final report, there were only four persons. Therefore, there cannot be any unlawful assembly so as to warrant any prosecution under Sections 143 and 147 of the Indian Penal Code. 13. Thus, when all the above aspects are taken into consideration, it is very much evident that, as rightly pointed out by the learned counsel for the petitioner, even if the entire allegations and materials contained in Annexure-A2 are accepted Crl.M.C.Nos.2645/2027 & 1398/2019 : 10 : its face value, none of the offences alleged against any of the petitioners, would get attracted. Therefore, the prosecution against the petitioners is a clear abuse of the process of law, which warrants interference by this Court by invoking the jurisdiction under Section 482 Cr.P.C. In such circumstances, these Crl.M.C.s are allowed and the final report submitted in crime No.714/2015 of Payyoli Police Station, and all further proceedings pursuant to the same, including the proceedings in C.C No 213/2017 on the file of Judicial First Class Magistrate,-II, Perambra are hereby quashed. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd Crl.M.C.Nos.2645/2027 & 1398/2019 : 11 : ## **APPENDIX OF CRL.MC 2645/2017** PETITIONER ANNEXURES ANNEXURE 1 CERTIFIED COPY OF THE FIR IN CRIME NO.741/2015 IN THE FILE OF PAYYOLI POLICE STATION ANNEXURE2 CERTIFIED COPY OF THE CHARGE IN ST NO.657/2016 IN THE FILE OF JUDICIAL 1ST CLASS MAGISTRATE COURT, PAYYOLI. Crl.M.C.Nos.2645/2027 & 1398/2019 : 12 : ## **APPENDIX OF CRL.MC 1398/2019** PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE JUDGMENT IN WPC 26738/2015 DATED 4.9.2015 OF THIS HONOURABLE COURT. ANNEXURE A2 TRUE COPY OF THE FIRST INFORMATION REPORT DATED 31.10.2015. ANNEXURE A3 TRUE COPY OF THE FINAL REPORT DATED 15.7.2016. ANNEXURE A4 TRUE COPY OF THE JUDGMENT IN WPC 34367/15 OF THIS HONOURABLE COURT.