Faisal Salim v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS`** ``` FRIDAY, THE 10[TH] DAY OF JUNE 2022 / 20TH JYAISHTA, 1944 ``` ``` CRL.MC NO. 7143 OF 2018 ``` ``` [AGAINST FINAL REPORT IN CRIME NO.2214/2015 OF VARKALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT AND ALL FURTHER PROCEEDINGS IN CC 487/2016 ON THE FILE OF THE JFCM-I, VARKALA] ``` ## **`PETITIONER/2ND ACCUSED:`** ``` FAISAL SALIM AGED 33 YEARS S/O ABDUL SALIM, VALIYATH HOUSE, PANMANA, KARUNAGAPPALLY, KOLLAM ``` ``` BY ADV AJAYA KUMAR. G ``` ## **`RESPONDENTS/STATE/DE-FACTO COMPLAINANT:`** ``` 1STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA – 682031 ``` ``` 2REHISA SHERRIF, AGED 59 YEARS W/O SHERIFF, LEENA BUNGALOW,MATTINMOODU JUNCTION,CHERUKUNNAM,VARKALA P.O. THIRUVANANTHAPURAM-695 141. ``` ``` BY ADVS. SRI.ALAN PAPALI SMT.O.V.BINDU SRI.J.VIMAL KUM.NIHARIKA HEMA RAJ ``` ## **`OTHER PRESENT:`** ``` SR.PP SRI.NOUSHAD K.A ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 7143 OF 2018 ``` ``` 2 ``` ## BECHU KURIAN THOMAS, J. =========================== Crl.M.C. No.7143 of 2018 ## ============================ Dated this the 10[th] day of June, 2022 ## ORDER Petitioner is the 2[nd] accused in C.C.No.487/2016 on the files of the Judicial First Class Magistrate Court-I, Varkala. He seeks to quash all proceedings in Annexure A1 final report. 2. Petitioner and his father were arrayed as accused alleging offences under Sections 294(b) and 506(i) r/w Section 34 of the Indian Penal Code, 1860, apart from Section 120(o) of the Kerala Police Act, 2011(for short the K.P. Act) 3. The de-facto complainant’s son was the husband of petitioner’s sister. Petitioner was alleged to be in inimical terms with the de-facto complainant, due to a matrimonial dispute involving the sister of the petitioner and her husband. Prosecution case is that on 19.09.2015, the accused threatened to do away the de-facto complainant over phone and thereby committed the offences ``` CRL.MC NO. 7143 OF 2018 ``` ``` 3 ``` alleged against them. Pursuant to registration of the crime alleging offences under Sections 294(b) and 506(i) r/w Section 34 of the Indian Penal Code, after investigation, the final report was filed incorporating an additional offence under Section 120(o) of the K.P. Act, apart from the offences for which the crime was initially registered. 4. Shri.Ajayakumar G., the learned counsel for the petitioner contended that none of the offences alleged against the petitioner are made out since the allegations, even if admitted in toto, the same having been committed allegedly over telephone, Section 294(b) of the Indian Penal Code is not made out. He relied upon the decisions in Preethimon v. State of Kerala [2008 (2) KLT 666] as well as Mukesh M.K. v. State of Kerala [2018 (3) KHC 858]. It was further submitted that the threat, as the basis for the offence under Section 506(i) was hurled against the de-facto complainant by the father of the petitioner, who was the 1[st] accused. However, since the said accused expired, the offence against the petitioner under Section 506(i) I.P.C. cannot continue. The learned counsel further ``` CRL.MC NO. 7143 OF 2018 ``` ``` 4 ``` pointed out that Section 120(o) of the K.P. Act is also not made out in the case, since there is no allegation to any nuisance caused by the petitioner. 5. Shri.Alan Papali, the learned counsel for the 2[nd] respondent contended that the allegations against the petitioners are made out from the final report and there is no cause for quashing the proceedings by recourse to Section 482 of the Criminal Procedure Code, 1973. He further submitted that petitioners’ defense, if any, ought to be proved through trial and not by recourse to the inherent powers under Section 482 Cr.P.C. 6. Shri.Noushad K.A., learned Public Prosecutor submitted that the offences alleged against the petitioner can be borne out from the statement of the de-facto complainant as well as from the other materials collected by the prosecution and hence Section 482 cannot be invoked. 7. I have considered the rival contentions. 8. A perusal of the final report along with the F.I. statement, which was handed over by the learned counsel, shows ``` CRL.MC NO. 7143 OF 2018 ``` ``` 5 ``` that the accused is alleged to have abused the de-facto complainant over phone on 19.09.2015. It is trite law that for an offence under Section 294(b) to be established, the primary requirement is that the obscene words must be uttered in or near any public place. Going by the statement of the de-facto complainant, the abusive words uttered by the petitioner was through a telephone, which is indubitably not a public place and hence the offence under Section 294(b) is not made out. 9. Further, the alleged abusive words used by the petitioner has not been referred to by the de-facto complainant, which makes the alleged abuse vague and too general in nature. As pointed out by the learned counsel for the petitioner, in the decision in Preethimon v. State of Kerala [2008 (2) KLT 666] as well as Mukesh M.K. v. State of Kerala [2018 (3) KHC 858] , the aforesaid prepositions have been laid down. I respectfully follow the said decisions. Thus the offence under Section 294(b) I.P.C. is not made out. 10. As far as Section 506(i) is concerned, Shri.Alan Papaly, ``` CRL.MC NO. 7143 OF 2018 ``` ``` 6 ``` vehemently argued that the threat contemplated as per the provision can be discerned from the statement of the de-facto complainant, who had mentioned in her statement that the accused had threatened her with injury to her person, which is sufficient to cause alarm to her, coming within the purview of the definition of criminal intimidation under Section 503 of the Code. However, a close reading of the statement of the de-facto complainant reveals that the threat was allegedly hurled by the 1[st] accused and not by the petitioner. Admittedly, the 1[st] accused is no more and the case as against him had abated much earlier. In such circumstance, the offence under Section 506(i) I.P.C. cannot lie against the petitioner. 11. Though it was argued that even as regards the 2[nd] accused, Section 506(i) is made out, since there is a reference to a threat uttered by the petitioner, I am unable to agree with the said contention. The threat contemplated under Section 506(i) ought to be with the intention to cause alarm. A mere threat is not sufficient to constitute an offence under Section 506(i). The threat must cause alarm in the mind of the de-facto complainant. Neither ``` CRL.MC NO. 7143 OF 2018 ``` ``` 7 ``` the final report nor the statements accompanying it reflects the nature of threat put forth by the petitioner. In the absence of any evidence to indicate the nature of threat or the nature of words uttered by the petitioner that is alleged to constitute the threat, it cannot be assumed that the threat alleged to have been uttered by the petitioner constituted a cause of alarm on the de-facto complainant. In such circumstances, I am of the view that the offence under Section 506(i) of I.P.C. is also not made out as against the petitioner. 12. What remains to be considered is only Section 120(o) of the Kerala Police Act, 2011 (for short, ‘K.P Act’). Section 120(o) reads as follows: ## Section120. Penalty for causing nuisance and violation of public order ; If any person (o) causing, through any means of communication, a nuisance of himself to any person, by repeated or undesirable or anonymous call, letter, writing, message, e-mail or through a messenger, shall, on conviction, be punishable with the imprisonment which may extend to one year or with fine which may extend to Rs.5,000/- or ``` CRL.MC NO. 7143 OF 2018 ``` ``` 8 ``` with both. 13. A perusal of the statement of the de-facto complainant shows that there was never any allegation of a nuisance alleged to have been caused by the petitioner. There is no communication either through any anonymous call, letter, writing, message or e- mail alleged to have been send or made by the petitioner which amounts to a nuisance. Even the final report does not specify any nuisance alleged to have been caused by the petitioner. The inclusion of Section 120(o) of KP Act is therefore not based on any material, nor on any legally acceptable evidence. A mere inclusion of a section without any supporting material cannot justify the applicability of such provisions to the case. Therefore, I am of the view that the inclusion of Section 120(o) of KP Act as having been committed by the petitioner, is too vague a charge. The circumstances as well as the statement of the de-facto complainant do not make out an offence under Section 120(o) of K.P. Act. 14. On a consideration of the aforesaid, I hold that none of the offences alleged against the petitioner are made out and hence ``` CRL.MC NO. 7143 OF 2018 ``` ``` 9 ``` the proceedings initiated as per Annexure A1 in C.C.No.487/2016 on the files of the Judicial First Class Magistrate Court-I, Varkala, is an abuse of the process of Court warranting an exercise of the jurisdiction under Section 482 of the Code of Criminal Procedure, 1973. 15. Accordingly, I quash Annexure A1 and all further proceedings in C.C.No.487/2016 on the files of the Judicial First Class Magistrate Court-I, Varkala. This petition is allowed. **Sd/-** BECHU KURIAN THOMAS JUDGE ssa/ ``` CRL.MC NO. 7143 OF 2018 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 7143/2018`** ## **`PETITIONER’S ANNEXURE`** ``` ANNEXURE A1 ``` ``` CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO 2214/2015 OF VARKALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. ```