CRL.MC.NO.2328 OF 2020(A)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942** ## **CRL.MC.NO.2328 OF 2020(A)** **CRIME NO.1060/2019 OF THODUPUZHA POLICE STATION, IDUKKI** ## **PETITIONERS/ACCUSED NO.1 & 2:** - **1 GEETHA P.S., AGED 55 YEARS, W/O. P.V RAMESH, PUTHEN PURACKAL HOUSE, AVOLY P.O., MUVATTUPUZHA-686 670, ERNAKULAM DISTRICT.** **2 RAMESH.P.V., AGED 58 YEARS, S/O. VELU, PUTHENPURACKAL HOUSE, AVOLY P.O., MUVATTUPUZHA, ERNAKULAM-686 670.** **BY ADVS.SRI.KALEESWARAM RAJ,KUM.THULASI K. RAJ, SRI.VARUN C.VIJAY,SMT.MAITREYI SACHIDANANDA HEGDE** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,KOCHI-31** **2 C.K.JAYASREE SENIOR SUPERINTENDENT, ASSISTANT EDUCATIONAL OFFICER, THODUPUZHA, IDUKKI, KERALA-685 584** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -----------------------------------------Crl. M.C. No. 2328 of 2020 -----------------------------------------Dated this the 27[th] day of November, 2020 ## O R D E R The prayers in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. are as follows: “ - _i. To quash Annexure II complaint and Annexure IX Final Report prepared by Thodupuzha Police Station against the petitioners as unjust, unsustainable and abuse of process of law._ - _ii. To drop all charges and further proceedings pursuant to Annexure IX Final Report prepared by Thodupuzha Police Station against the petitioners.”_ 2. Heard Sri.Kaleeswaram Raj, learned counsel appearing for the petitioners (A-1 & A-2) and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R-1 (State). Though notice has been duly served on the 2[nd] respondent lady defacto complainant, there is no appearance for that party. 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Anx.I FIR in Crime No.1060/2019 of Thodupuzha Police Station, for offences punishable under Secs.353, 294(b), 506(i) & 34 of the IPC, on the basis of the FIS given by the 2[nd] respondent lady defacto complainant on 31.8.2019 at 7 P.M about the alleged incidents which happened on the same day at about 12 noon. The police after investigation has filed the impugned Anx.IX Crl. M.C. No. 2328 of 2020 **==> picture [19 x 9] intentionally omitted <==** final report/charge sheet in the impugned Anx.I Crime No. 1060/2019 of Thodupuzha Police Station, and the learned Magistrate has taken cognizance and thereafter the case is now pending as C.C.No.94/2020 on the file of the JFCM, Thodupuzha. It appears that, the charges in this case have not so far been framed by the said court. 4. The petitioner seeks quashment of impugned criminal proceedings on the ground that the same amounts to grave abuse of the process of this Court, inasmuch as the same has been initiated only on account of false and malicious allegations raised by the 2[nd] respondent as the 1[st] petitioner could successfully get series of orders from the Kerala Administrative Tribunal, in respect of service matters, etc. 5. Per contra, the learned Public Prosecutor appearing for the 1[st] respondent State would urge that the said contentions of the 1[st] petitioner are not tenable and that the allegations of the petitioner if true, are to be raised by her before the trial court as the matter would require judicial evaluation, and that no interdiction is called for. Crl. M.C. No. 2328 of 2020 ..4.. 6. The brief of the prosecution case is to the effect that, the 2[nd] petitioner is the husband of the 1[st] petitioner and that the 1[st] petitioner herein was working as an employee of an aided school which is under the administrative jurisdiction of the Assistant Educational Officer (AEO) , Thodupuzha, and that the 2[nd] respondent is working as a Senior Superintendent attached to the office of the said Assistant Educational Officer, and that on 31.08.2019 at about 12 noon, while the 2[nd] respondent was working as Senior Superintendent attached to the office of the Assistant Educational Officer, Thodupuzha, both the accused persons have come there and threatened the 2[nd] respondent and abused her in extremely foul language and obstructed here from carrying out her duties and thereby the accused persons have committed the abovesaid offences . 7. It is beyond any dispute that the 1[st] petitioner has been working as Headmistress of The Government Lower Primary School, Karinkunnam, and that the 2[nd] petitioner, who is her husband, is a retired Police officer. The 1[st] petitioner was placed under suspension from service as per order dated 5.6.2018 Crl. M.C. No. 2328 of 2020 ..5.. whereupon she was constrained to challenge the same by filing original application O.A.No.1624/2018 before the Kerala Administrative Tribunal, Thiruvananthapuram, seeking for directions to the authorities concerned and this resulted in Anx. III order dated 7.9.2018 rendered by said Tribunal in O.A. No. 1624/2018, whereby it was ordered to reinstate the petitioner in service w.e.f. 5.6.2018 and to treat her suspension period as duty for all service benefits etc. Thereupon, the Director, DPI has issued order dated 24.10.2018 reinstating the petitioner as Headmistress by taking due note of the fact that enquiry has already been over. Thereafter, the petitioner was issued with charge memo dated 7.11.2018 and later aggrieved by the denial of subsisting allowances for the period of suspension, and also the salary for subsequent period, the petitioner was again constrained to approach the Kerala Administrative Tribunal which resulted in Anx. IV order dated 28.3.2018 of the said Tribunal in O.A. No. 639/2019 filed by the petitioner herein. It is further to note that the Assistant Educational Officer, Thodupha, in which the 1[st] respondent is Senior Superintendent has been made respondent in both Anx.III Crl. M.C. No. 2328 of 2020 **==> picture [19 x 9] intentionally omitted <==** and IV original applications filed before the Kerala Administrative Tribunal. By Anx. IV order dated 28.3.2018 in O.A. No. 639/2019 the Tribunal has directed that on the petitioner appearing before the respondent AEO on 31.8.2019 with necessary service records, the AEO after verification shall ensure that the entries are duly made in the SPARK account so as to enable the petitioner to draw the salary, and the respondent Deputy Director of Education was also directed to ensure that subsisting allowance are also paid to the petitioner for the unpaid period in question. That, Anx. IV order was repeatedly disobeyed by the official concerned including the respondent AEO and the officers attached thereto. The petitioner was again constrained to approach the Tribunal by filing M.A.No.1561/2019 in O.A.No.639/2019 whereby the Tribunal has passed Anx.V order dated 31.8.2019 directing the immediate compliance of earlier directions. According to the petitioner, still later the officials of the office of the AEO including mainly the 2[nd] respondent has taken an adamant stand that they will not implement Anxs.IV and V orders, and it resulted in altercations and resulted in some untoward incidents and the petitioner had ..7.. Crl. M.C. No. 2328 of 2020 become unconscious and was taken to the District Hospital, Thodupuzha on 31.8.2019 as can be seen from Anx.VI medical record. Later the 1[st] petitioner was constrained to approach the Tribunal and Anx.VII interim order dated 5.9.2019 was passed. The case of the petitioner is that, since the Tribunal had directed that the petitioner shall be personally present in the office of AEO as per Anxs.IV and V orders, she had dutifully reported before the office of AEO on 31.8.2019, and according to the petitioner the 2[nd] respondent was taken an adamant stand that she will not comply the directions of Tribunal at any cost, and that the 1[st] petitioner was also accompanied by the 2[nd] petitioner who is her husband and certain untoward incidents were caused by the officials which resulted in the 1[st] petitioner getting unconscious and getting admitted in the Government Hospital as can be seen from Anx.VI medical records dated 31.8.2019. According to the petitioners the abovesaid allegations raised in Anx.I by the 2[nd] respondent is only to evade from her responsibilities as well as in abusing the petitioner, that she has falsely filed the FIS which resulted in registration of Anx. I Crime etc. ..8.. Crl. M.C. No. 2328 of 2020 8. None of these aspects have been properly investigated by the police and they have mechanically accepted the unilateral assertions of the 2[nd] respondent as gospel truth and has submitted Anx. IX final report/charge sheet etc. Though the 2[nd] respondent has been duly served notice in this case, she has not entered appearance. There is no dispute that consistently various orders passed by the Kerala Administrative Tribunal was not complied with by the authorities concerned, including the Assistant Educational Officer in which office the 2[nd] respondent was then working as Senior Superintendent. These aspects can be seen from Anxs.III, IV & V orders passed by the Tribunal. Later, after the incidents in question, the Tribunal was also again constrained to interfere in the matter as can be seen from Anxs. VII & VIII. None of these orders of the Tribunal have been challenged by the departmental authorites concerned. It is also a matter of common knowledge that various orders and directions passed by various Courts including this Court and Tribunals are not complied with or obeyed by government officials for quite some time, and parties are also compelled to file application in Contempt proceedings and Crl. M.C. No. 2328 of 2020 **==> picture [19 x 9] intentionally omitted <==** it is long after the initiation of such contempt proceedings that the officers will wake up from their slumber and care to comply with the directions, and that too only at the last moment in many cases for the purpose of avoiding contempt proceedings, in which they will be sued in their personal capacities. The fact that the orders of the Tribunal have been flouted by the departmental authorities including the officials of the Assistant Educational Officer, is beyond any doubt in the facts and circumstances of this case . Certainly the 1[st] petitioner was obliged to go and report before the office of AEO as ordered by the Tribuanl in Anxs. III & IV. If the 1[st] petitioner had not personally reported before the AEO on 31.8.2019 then certainly the respondents could have taken the plea that they could not comply with the directions issued by the Tribunal inasmuch as, the 1[st] condition that the petitioner should personally report before the AEO and to sort out the issues regarding the activation of SPARK account so as to release salary. Therefore the presence of the 1[st] petitioner and the fact that the 2[nd] petitioner who is her husband has also accompanied the 1[st] petitioner and attended to the office of the Crl. M.C. No. 2328 of 2020 **==> picture [24 x 7] intentionally omitted <==** AEO on 31.8.2019 is also admitted by both sides and the presence of the 2[nd] petitioner also cannot be faulted in having accompanied the 1[st] petitioner who is his spouse. The fact that, even on 31.8.2019 the directions of the Tribunal has not been complied with is also evident from the subsequent order of the Tribunal at Anx.VII. Therefore the consistent obstinate stand of the officials of the AEO, in not complying with the directions issued by a high powered Tribunal like the Kerala Administrative Tribunal constituted under Article 323A of the Constitution of India, as well as the provisions of the Administrative Tribunals Act, 1985, is evidently manifest in this case. the petitioners would have been quite apprehensive and they would have sternly demanded the immediate compliance of the directions which would not have been to the liking of the 2[nd] respondent who was the main official on the administrative side for sorting out such issues in her capacity as Senior Superintendent attached to the office of the AEO, Thodupuzha. So naturally, some altercations would have occurred between the parties. Incidents of this nature cannot be the basis to unnecessarily saddle the citizens who are claiming their rights with criminal culpability in the facts ..11.. Crl. M.C. No. 2328 of 2020 of this case. To say the least, it would amount to rubbing salt on their wound already inflicted. Various orders and directions issued by this Court by way of interim orders, final judgments etc are not seen complied with by the government officials concerned within a reasonable time and even long after the expiry of time limit stipulated thereof, and now a days the trend is that the government officials do not even care to file an application for extension of time before the adjudicatory body concerned, including this Court. Therefore, litigants who spend their precious time and money to litigate for their rights and then secure successful verdicts cannot be blamed if they put up their claims diligently for enforcement of the directions in the judgment and orders of the courts. If there is unnecessary delay if the litigant keeps quiet then certainly the respondents may take up the plea of limitation in taking cognizance of the contempt action. Therefore the litigants cannot be blamed for being concerned at the lethargic attitude of the officials in not implementing the directions and orders passed by the courts and the tribunals. It appears that, there is trend atleast among Crl. M.C. No. 2328 of 2020 **==> picture [24 x 7] intentionally omitted <==** some of the government officials of not showing due respect and deference to citizens who approach them for ventilation of their grievances and for securing their lawful rights and interests. Many a time it appears that, the elementary legal position that it is the people of the country, who are the citizenry of the country, are the masters of their destiny and including the masters of the civil servants are forgotten by the system with the result that the government servants and public servants who are accepted to be the servants of the people, may entertain the delusion and illusion that they are in fact the masters of the citizenry. Therefore, citizens who successfully get verdicts from courts and tribunals, cannot be blamed for being concerned or over concerned with the lethargic attitude of the government officials in throwing the directions of the courts and tribunals to the winds. This Court is making these observations, that to appreciate the case on hand in its totality. Adjudged from this overall context, this Court is inclined to take the view that the petitioners cannot be blamed for being little bit concerned about the consistent stand taken by the officials of the AEO in not Crl. M.C. No. 2328 of 2020 **==> picture [24 x 9] intentionally omitted <==** complying with the repeated directions and orders passed by the Tribunal. The petitioners were duty bound to be present before the office of the AEO on 31.8.2019 or otherwise they would not have complied their part of directions as issued by the Tribunal, as can be seen from Anx.IV. If some altercations have occurred, the petitioners cannot be seriously blamed for that.At any rate, it is quite likely that it may result in some untoward incidents. The same cannot be the basis to initiate criminal proceedings for an offence as per Sec.353 of the IPC in the facts and circumstances of the case. 9. Judging from the totality of the facts and circumstances of this case, and in view of the strong possibility of altercation between the parties, this Court is inclined to take the view that the events may not have happened in the manner as alleged by the prosecution, but could have happened in some other manner. It has also to be borne in mind that Anx.VI medical record dated 31.8.2019 has been issued by the Govt. District Hospital, Thodupuzha, and the authenticity of which is not denied by the respondents. Hence, taking into consideration the overall totality of the facts and circumstances of the case, this Court is inclined to Crl. M.C. No. 2328 of 2020 ..14.. take the view that the very initiation and finalization of impugned criminal proceedings is an abuse of the process of court. That apart, the mere allegation that an accused has used foul and abusive language, cannot be the basis to fulfill the necessary ingredients of the offence as per Sec.294(b) of the IPC (utterance of obscene words). The position in this regard is well settled as can be seen from the series of rulings of this Court as in _**Latheef v. State of Kerala [2014 (2) KLT 987], P.T.Chacko v. Nainan Chacko [1967 KLT 799]**_ and _**Sangeetha Lakshmana v. State of Kerala [2008 (2) KLT 745].**_ It will be profitable to refer to para no.5 of the decision of this Court in _**Latheef v. State of Kerala [2014 (2) KLT 987]**_ **,** which reads as follows: _“5. Abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined under the law. Of course there is no doubt that the words alleged to have been used by the revision petitioner are in fact abusive and humiliating. But to make it obscene, punishable under S.294(b) I.P.C., it must satisfy the definition of obscenity. S.294 I.P.C. does not define obscenity. Being a continuation of the subject dealt with under S.292 I.P.C. the definition of obscenity under 292(1) I.P.C. can be applied in a prosecution under S.294 I.P.C. also. To make punishable, the alleged words must be in a sense lascivious, or it must appeal to the prurient interest, or will deprave and corrupt persons. In P.T Chacko v. Nainan Chacko reported in (1967 KLT 799) this Court held that, “the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.”_ Crl. M.C. No. 2328 of 2020 ..15.. _In Sangeetha Lakshmana v. State of Kerala reported in (2008 (2) KLT 745) this Court held thus, “in order to satisfy the test of obscenity, the words alleged to have been uttered must be capable of arousing sexually impure thoughts in the minds of its hearers.” Thus it is quite clear that, to make obscene the alleged words must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons, and defiling morals by sex appeal or lustful desires. I find that the words alleged to have been used by the revision petitioner in this case are really abusive and humiliating, but those words cannot be said to be obscene. As already stated, every abusive word or every humiliating word cannot, by itself, be said to be obscene as defined under the Indian Penal Code. I find that the conviction against the revision petitioner under S.294 (b) I.P.C. in this case, on the basis of the above words alleged to have been used by him, is liable to be set aside, and the revision petitioner is entitled to be acquitted.”_ 10. From a mere perusal of materials of the impugned criminal proceedings it can be seen that the main allegations raised therein is that the petitioners hve used abusive and foul language against the 2[nd] respondent. Such allegations even if true, cannot be the basis to make out the offence as per Sec.294(b) of the IPC. The upshot of the above discussion is that, the impugned criminal proceedings is liable for interdiction at the hands ofthis Court in exercise of the inherent extra ordinary powers conferred under Sec.482 of the Cr.P.C. 11. In that view of the matter it is ordered that the impugned Anx.IX final report/charge sheet filed in the impugned Anx. I FIR in Crime No.1060/2019 of Thodupuzha Police Station, ..16.. Crl. M.C. No. 2328 of 2020 which has now led to the pendency of C.C.No.92/2020 on the file of the JFCM, Thodupuzha, as against the petitioners accused and all further consequential proceedings emanating therefrom as against the petitioners accused will stand quashed and set aside. The abovesaid observations and findings are made by this Court in the peculiar facts and circumstances of this case. 12. The petitioners will produce certified copy of this order before the Investigating Officer concerned as well as before the JFCM, Thodupuzha, who is dealing with C.C. No. 92/2020, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl. M.C. No. 2328 of 2020 ..17.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE-I TRUE COPY OF THE FIR NO 1060/2019 DATED 31.08.2019 REGISTERED BY THE THODUPUZHA POLICE STATION** **ANNEXURE-II TRUE COPY OF THE COMPLAINT SUBMITTED BY MS C.K.JAYASREE ANNEXURE-III TRUE COPY OF THE ORDER DATED 7.9.2018 IN OA NO.1624/2018** |**ANNEXURE-IV**|**TRUE COPY OF THE ORDER DATED 28.3.2018**| |---|---| ||**IN**<br>**OS**<br>**NO.639/2019**<br>**PASSED**<br>**BY**<br>**THE**| ||**HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,**| ||**THIRUVANANTHAPURAM BENCH**| |**ANNEXURE-V**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**31.08.2019 IN MA NO.1561/2019 IN OA**| ||**NO.639/2019 PASSED BY THE HON'BLE KERALA**| ||**ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM**| ||**BENCH**| |**ANNEXURE-V**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**31.08.2019 IN MA NO.1561/2019 IN OA**| ||**NO.639/2019 PASSED BY THE HON'BLE KERALA**| ||**ADMINISTRATIVE**<br>**TRIBUNAL,THIRUVANANTHAPURAM**| ||**BENCH**| |**ANNEXURE-VI**|**TRUE COPY OF THE CASUALTY OP TICKET DATED**| ||**31.087.2019**| |**ANNEXURE-VII**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**05.09.2019 IN MA NO.1561/2019 IN OA**| ||**NO.639/2019 PASSED BY THE HON'BLE KERALA**| ||**ADMINISTRATIVE**<br>**TRIBUNAL,THIRUVANANTHAPURAM**| ||**BENCH**| |**ANNEXURE-VIII**|**TRUE COPY OF THE ORDER DATED 27.9.2019 IN BA**| ||**NO 6714/2019**| |**ANNEXURE-IX**|**TRUE COPY OF THE FINAL REPORT NO.1477/2019**| ||**DATED 16.01.2020**|