Jincy Jeffry @ Galeena Jeffry v. State of Kerala and Siddiquel Akbar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 14[TH] DAY OF JANUARY 2022 / 24TH POUSHA, 1943** ## **CRL.MC NO. 4252 OF 2020** **(CRIME NO. 269/2019 OF PERINTHALMANNA POLICE STATION)** **AGAINST THE ORDER/JUDGMENT IN CC 588/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,** ## **PERINTHALMANNA** ## **PETITIONER/ACCUSED:** **JINCY JEFFRY @ GALEENA JEFFRY AGED 37 YEARS W/O.JEFFRY, MEDIA TECH SOLUTION, SOUTH, ERNAKULAM DISTRICT. BY ADVS. JOHN K.GEORGE SMT.M.B.SHYNI SRI.DEEPAK RAJ SHRI.PRASANTH K.T. SHRI.RAMEES P.K.** ## **RESPONDENTS/STATE & DE FACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** - **2 SIDDIQUEL AKBAR, AGED 43 YEARS RAYIN HAJI, PATHARI HOUSE, PUTHANANGADI, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN-679321.** **BY ADV SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** ## **SR.PP - SRI. RENJITH T.R.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON** **14.01.2022 PASSED THE FOLLOWING:** Crl.M.C.No.4252 OF 2020 2 ## **ORDER** This is a petition filed under Section 482 of the Cr.P.C. seeking to quash the charge sheet in C.C. No. 588 of 2019 pending before the Judicial First Class Magistrate's Court-I, Perinthalmanna which arose from Crime No. 269 of 2019 of Perinthalmanna police station. 2. It is alleged that the accused, that is the petitioner had made posts in whatsApp and facebook defaming the reputation of the defacto complainant; that was done from 03.05.2019 at 15.40 hours onwards touching Nisdon Infoway which is an institution run by the defacto complainant and thus, offence under Section 120(o) of the Kerala Police Act is alleged against the petitioner, who is a lady. The petitioner submits that the offence under Section 120(o) of the Kerala Police Act is not made out. If the defacto complainant had approached the jurisdictional Magistrate Court with a complaint alleging offence under Section 499 of the Indian Penal Code, the Crl.M.C.No.4252 OF 2020 3 petitioner would have availed the statutory exceptions to defend the case. Here to avert such an advantage to the accused, he has cleverly chosen to get a crime registered against the petitioner at his home town which is far away from Ernakulam where the petitioner resides. The prosecution was launched with _mala fide_ intentions. Therefore, entire proceedings are sought to be quashed. 3. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. 4. According to the learned counsel for the petitioner, ingredients of offence under Section 120(o) of the Kerala Police Act are not made out. From the charge sheet it cannot be discerned as to what is the bad post made by the petitioner. It is also not stated that it was done repeatedly for causing nuisance to the defacto complainant. The alleged posting was done on 03.05.2019 alone, it has never been repeated. The learned counsel also placed reliance on the decisions reported in **Biju V.G. (Dr) v. State of Kerala and Another [2020 (5)** Crl.M.C.No.4252 OF 2020 4 **KHC 685]** and **Jayesh P. v. Sub Inspector of Police, Thrissur East Police Station and others [2021 (2) KHC 357]** . 5. On the other hand, the learned Senior Public Prosecutor opposed the application. According to him, the petitioner had made defamatory posts causing nuisance to the defacto complainant and thus, the crime was launched. The learned Senior Public Prosecutor placed reliance on **Anto Joseph v. State of Kerala and others [2016 (3) KHC 832].** 6. As rightly pointed out by learned counsel for the petitioner, Annexure-I charge sheet does not give any specific imputation against the petitioner. It is only stated that from 03.05.2019, at 15.40 hours onwards, the petitioner had made defamatory posts through whatsApp and facebook defaming the Nisdon Infoway, the institution of the defacto complainant. The case diary was called by this Court to gather as to what was that defamatory posts made by the petitioner. The case diary has been made available before Court. Crl.M.C.No.4252 OF 2020 5 7. The case diary indicates that on 03.05.2019, the defacto complainant had given a complaint to the Station House Officer, Perinthalmanna police station. According to him, he is running computer sales business in Perinthalmanna for the last twenty years. He had purchased white boards from Media Tech Solutions, a firm run by the petitioner for Rs. 57,925/-. As election was declared, some of his orders were cancelled and an amount of Rs. 6,935/- is outstanding towards payment to the petitioner. As the order was cancelled, four white boards were remaining with them. While so, the accused had made posts in whatsApp group and facebook describing the institution of the defacto complainant very badly. 8. The case diary contains a whatsApp post reportedly posted by the petitioner which reads thus, 'don't bill to Nisdon Infoway the fraud peoples'. Similar posting was done in the facebook also which is evident from the documents available in the case diary. But details of such posts are wanting in the charge sheet. Unless such details are made available and copy Crl.M.C.No.4252 OF 2020 6 furnished to the accused and substance of the allegations are handed over to the petitioner, she cannot justifiably be expected to defend the charge. Here, it does not seem that the copy of the printout of the facebook post and that of whatsApp post were handed over to the accused. Anyhow the allegations against the petitioner are very vague and lacking in particulars. 9. Secondly, even assuming that such posts were made by the petitioner in the whatsApp and facebook, I am of the view that, that would not attract offence under Section 120(o) of the Kerala Police Act. In order to attract Section 120(o) of the Kerala Police Act the accused must have caused, through any means or communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, e mail or through a messenger. From the complaint reported to have been preferred by the defacto complainant before the SHO, Perinthalmanna, it cannot be assumed that ingredients of offence under Section 120(o) of the Kerala Police Act are disclosed. Crl.M.C.No.4252 OF 2020 7 10. After all, what is the post made by the petitioner? It is stated that it is a post seeking to discourage people to deal with Nisdon Infoway who have been described as fraud people. We do not know how many persons have come across such a post. In a whatsApp group, that would be circulated only among the group unless it is posted elsewhere by the admin or members of the group. In facebook, range of the subscribers may be much higher. But from a mere posting that 'don't bill to Nisdon Infoway the fraud peoples', it cannot be inferred, that was intended to cause nuisance in the real meaning of the term. Of course, it might have caused pain and agony in the mind of the 2[nd] respondent against whom that post was published. But we do not know how many persons had occasion to view this post and what was their impression about the 2[nd] respondent. Anyhow, the name of the 2[nd] respondent does not appear in the post. It is the institution that has been mentioned in the post. Even if it is assumed that it was intended to defame the firm, it is not Section 120(o) of the Kerala Police Act to be invoked, Crl.M.C.No.4252 OF 2020 8 since there are provisions in the Indian Penal Code under Section 499 of the IPC for meeting such requirements. 11. Moreover, as rightly pointed out by the learned counsel, the Court normally ignores trivial matters. It is only stated that it is the firm of the 2[nd] respondent that has been described as fraud people. As rightly pointed out by the learned counsel for the petitioner, it is liable to be ignored since the court ignore trivial matters. Therefore, the petitioner is entitled to get the benefit under Section 95 of the IPC which embodies the _maxim de minimus non curat lex_ which means that courts usually ignore trivial matters. It appears that the petitioner is entitled to get the benefit of Section 95 of the IPC also. 12. After having gone through the materials on record and also the case diary, I am not convinced that there is justification in prosecuting the petitioner. Even though the order of the court granting sanction for prosecution could not be seen in the case diary, the Court is not in a position to ascertain whether Crl.M.C.No.4252 OF 2020 9 the sanction was granted under Section 155 of the Cr.P.C., after proper application of mind. Still for the reasons already stated, the petitioner is not liable to be prosecuted. 13. Therefore, entire proceedings in C.C. No. 588 of 2019 pending before the Judicial First Class Magistrate's Court - I, Perinthalmanna are quashed and the petitioner shall stand exonerated. The Criminal Miscellaneous Case is allowed as above. **Sd/-** **K.HARIPAL** **JUDGE** **RMV/13.01.2022** Crl.M.C.No.4252 OF 2020 10 ## **APPENDIX OF CRL.MC 4252/2020** ## **PETITIONER ANNEXURES ANNEXURE I** **A CERTIFIED COPY OF THE CHARGE SHEET IN C.C.NO.588/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERINTHALMANNA WHICH AROSE FROM CRIME NO.269/2019 OF PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT.**