Crl.M.C.No.2515/2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **THURSDAY, THE 18TH DAY OF OCTOBER 2012/26TH ASWINA 1934** ## **Crl.MC.No. 2515 of 2012 ()** **-------------------------CP.38/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE** **PETITIONER(S)/ACCUSED:** **-------------** **ADVOCATE P.J.MANUEL, AGED 52 YEARS S/O.JOSEPH PALLATHU HOUSE MANJUMMAL** **BY ADVS.SRI.K.S.MADHUSOODANAN SRI.THOMAS CHAZHUKKARAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR** ## **RESPONDENTS/FORMAL PARTY/COMPLAINANT(S):** **---------------** **1. STATE OF KERALA TO BE REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM** **2. SUB INSPECTOR OF POLICE** - **TOWN POLICE STATION, KOZHIKODE** **R BY PUBLIC PROSECUTOR SMT.KOCHUMOL KODUVATH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18-10-2012, THE COURT ON 08-11-2012 PASSED THE FOLLOWING:** ## **CRL.M.C.NO.2515/2012** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE-I: COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.212/2011 DATED 8.4.2011.** **ANNEXURE-II: COPY OF THE SEIZURE MAHAZAR DATED 8.4.2011.** **ANNEXURE-III: COPY OF THE CHARGE IN CRIME NO.212/2011. ANNEXURE-IV: COPY OF THE CASE DIARY STATEMENT OF CW9 DATED 9.4.2011.** **//TRUE COPY//** **P.A. TO JUDGE** **C.R.** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.M.C.NO.2515 OF 2012 ----------------------------------Dated this the 8[th] day of November, 2012** ## **O R D E R** Petitioner, an advocate, is prosecuted for offences punishable under Sections 124A and 153 of the Indian Penal Code and Section 120 (d) of the Kerala Police Act on a report filed by the Sub Inspector of Police, Town Police Station, Kozhikode. Committal proceedings taken on such report is pending before the Judicial First Class Magistrate Court-I, Kozhikode. Petitioner has filed the above petition to quash the criminal proceedings against him in the case contending that it is an abuse of process of the court. 2. On the eve of polling for the general election to the Legislative Assembly of the State in 2011, that is, on 08.04.2011, a poster was seen affixed exhorting for boycotting the election, in a flex board placed over a pump house situate in the **Crl.M.C.No.2515/2012** **2** compound of the Public Library and Research Center in Kozhikode Town. Sub inspector of Police, after taking photos, removed that poster and seized it into custody preparing Annexure-II mahazar. That poster was seen printed and published by the petitioner on behalf of an organisation named 'Porattam'. A crime was registered against the petitioner and others under Annexure-I FIR for offences punishable under Section 153 of the IPC and Section 120 (d) of the Kerala Police Act. After investigation of the crime, Annexure-III report was filed before the magistrate indicting the petitioner for offences punishable under Sections 124A and 153 of the IPC and 120 (d) of the Kerala Police Act. 3. What is published in the poster affixed in the flex board has been reproduced in Annexure-II seizure mahazer and Annexure-I FIR. It contained an exhortation thus: “No vote for the masters who have become swollen exploiting the people, irrespective of difference in parties”. Such poster was affixed by an organisation “Porattam” with an endorsement 'Printed and **Crl.M.C.No.2515/2012** **3** Published by Adv.P.J.Manual Manjummal, Ernakulam for Porattam, Printed at Sree Gayathri Print and Pack'. 4. Even if the entire allegations stated in the poster are taken as true, still, no offence is made out to prosecute the petitioner – the accused, is the submission of his counsel. It is contended that no sanction has been obtained by the prosecution to prosecute the petitioner for the offence of sedition under Section 124A of the IPC, which has been included as one among the offences in the case. Section 196 of the Code of Criminal Procedure interdicts the court from taking cognizance of an offence under Chapter VI of the IPC, in which Section 124A Sedition is included, is pointed out by the counsel to contend that the committal proceedings commenced in the case on the report filed by the police are not legal, and on that count itself, such proceedings are liable to be quashed. The poster is alleged to have been affixed on a flex board belonging to Asianet Bureau, which was dilapidated and not in use for years, is also canvassed by the counsel to contend that no offence under Section 120 (d) **Crl.M.C.No.2515/2012** **4** of the Kerala Police Act would lie on the imputations made in the case. 5. The offence under Section 124A captioned as 'Sedition' is closely allied to treason – offence against the State. Many personalities including the Father of the Nation and several freedom fighters have been tried and punished during the imperial rule under the above Section. How far in a democratic set up publishing or preaching of protest even questioning the foundation of the form of Government could be imputed as causing disaffection towards the Government and thus committing of any offence under Chapter VI of the IPC has to be examined within the letter and spirit of the Constitution and not as previously done under the imperial rule. This Court in **Alavi and Others v. State of Kerala (1982 KLT 205)** has held that shouting of slogans for a classless society and for socialism will not come within the mischief of Sections 124A or 505(c) of the IPC. Similar is the view expressed by the Apex Court in **Balwant Singh and another v. State of Punjab (AIR 1995** **Crl.M.C.No.2515/2012** **5** ## **SC 1785)** and **Bilal Ahmed Kaloo v. State of Andhra Pradesh (AIR 1997 SC 3483)** . In Balwant Singh's case, cited supra, the Apex Court has held thus: _“A plain reading of the Section 124A, would show that its application would be attracted only when the accused brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India, by words either written or spoken or visible signs or representations etc.”_ In appreciating whether the act done by the accused by words “either spoken or written or by signs or by misrepresentation or otherwise” one cannot shut one's eyes to changes in political consumptions which have taken place over the course of time after the aforesaid penal provision Section 124A was included in the IPC and the declared objective of the Government of the day. Very often, the demarcating line between political criticism of the Government and those causing disaffection against the Government is thin and waving. In the present case, it is conceded by the learned Public Prosecutor that no sanction has **Crl.M.C.No.2515/2012** **6** been obtained to prosecute the petitioner/accused for the offence under Section 124A of the IPC, which is a mandatory requirement for the court to take cognizance of such offence. When that be so, whether the contents of the poster and its publication by the accused, even if it is at his instance, to determine whether any offence of sedition is made out thereof is not called for. Section 196 of the Code of Criminal Procedure mandates that a complaint for such offence should be expressly authorised by the Government, and if not, the court cannot take cognizance of such offence against the accused person. Committal proceedings taken over the final report laid before the court without production of order of sanction satisfying the statutory mandate, is clearly unsustainable. So far as the offence under Section 120 (d) of the Kerala Police Act, the allegation imputed that the poster was affixed in a flex board which was in disuse, serious consideration is not required. What is contemplated as a nuisance or violation of public order under Section 120 (d) of the Kerala Police Act is 'defacing of walls, buildings and or other structures without the prior permission of **Crl.M.C.No.2515/2012** **7** the custodian of the property'. A poster was affixed on a wall or a building without the permission of the custodian of the property, to constitute an offence thereof should reveal that it has caused defacement to such wall or building. Where a flex board which was in disuse and that too belonging to a private party 'Asianet Bureau' was made use for affixing the poster it cannot, normally, be the basis for prosecution of that offence under the Kerala Police Act. With respect to the offence under Section 153 of the IPC imputed in the case, it need only be stated that the affixing of the poster exhorting for boycotting the election, even if it is objectionable, is not sufficient to show that by such affixture provocation is given to any person for causing the offence of rioting. Howsoever deplorable be the act of affixing the poster, to constitute the offence under Section 153 of the IPC over and above the provocation that is likely to give cause for rioting, it has to be shown that the act - affixing of the poster - is illegal. In the given facts of the case, whether affixture of such poster is legal or illegal is not required to be probed further where sanction for prosecution of the petitioner **Crl.M.C.No.2515/2012** **8** for the offence under Section 124A of the IPC has not been obtained. Proceedings against the petitioner on the report of the police indicting him of the offences referred to above, in such circumstances, cannot be sustained. 6. Final report laid against the petitioner in Crime No.212 of 2011 of Kozhikode Town Police Station and the committal proceedings taken thereof as C.P.No.38 of 2011 of the Judicial First Class Magistrate Court-I, Kozhikode are quashed invoking the inherent powers of this Court, under Section 482 of the Code of Criminal Procedure. Crl.M.C. is disposed of. **S.S.SATHEESACHANDRAN JUDGE** prp