Jithin C.H. v. State of Kerala and Al-Arafa Religious and Charitable Trust

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` THURSDAY,THE20[TH]DAYOFJULY2023/29THASHADHA,1945 ``` ## **`CRL.MC NO. 2743 OF 2023 AGAINST CC NO.154/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS-III, KOTTAYAM`** ## **`PETITIONER/1ST ACCUSED :`** ``` JITHINC.H. AGED36YEARS S./OHARISHBABUC.R.,CHEMPODILHOUSE, VELOORVILLAGE,KOTTAYAMTALUK, - VELOORP.O.,KOTTAYAM,PIN686003 BYADVS. NIRMALVNAIR ARATHIPRABHAKARAN ENCILK.SABU M.ANEESH ``` ## **`RESPONDENT/STATE :`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, HIGHCOURTOFKERALA,KOCHI, – PIN682031 ``` ``` **2ADDITIONALRESPONDENTNO.2 ``` ``` AL-ARAFARELIGIOUSANDCHARITABLETRUST (REG.NO.76/IV/2013)THDATHUMKUZHIYILHOUSE, THEKKUMGOPURAM,KOTTAYAMNORTHP.O. KOTTAYAMNORTHP.O.,KOTTAYAM-686001 REPRESENTEDBYITSSECRETARY ISIMPLEADEDASPERORDERDATED20.7.2023INCRL.M.A. NO.2OF2023 ``` ``` BYADVNIRMALVNAIR ``` ``` SRI.VIPINNARAYAN,SR.PP THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 20.07.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No. 2743 of 2023 2 ## **ORDER** The petitioner herein is the 1st accused in C.C. No.154/2023 on the files of the Judicial Magistrate of First Class-III, Kottayam. The aforesaid crime arose from Crime No.495 of 2020 of the Kottayam West Police Station registered under Section 153 of the IPC and Section 120(o) of the Kerala Police Act, 2011. 2. The short facts of the case are as under: The aforesaid crime was registered based on the information furnished by certain Mathew KP. In his complaint lodged before the Police it is stated that some mischievous individual had posted a message on Social Media with the caption ‘തബ് ലീഗ്േകാവിഡ്േകാ�യ�ം ‘ and the same has gone viral. Essentially the message states that certain individuals were concealing themselves in a Mosque, and the same was likely to result in the spread of the Covid Pandemic. On the basis of the above complaint, the authorities rushed to the area and the entire area was fumigated and sanitized. According to the complainant, the statement in the message was false, and due to the ensuing occurrences, serious hardships and inconveniences were caused. The aforesaid complaint was forwarded by the Crl.M.C No. 2743 of 2023 3 Sub Inspector of Police to the Deputy Police Superintendent, which led to the registration of the crime. 3. The learned counsel appearing for the petitioner submitted that the registration of the crime incorporating the offences under Section 153 of the IPC and Section 120(o) of the Kerala Police Act cannot be sustained under law. According to the learned counsel, in order to attract the offence under Section 153, in addition to the act being illegal, it should also have to be done malignantly, causing provocation to some other person. According to the learned counsel, there is no material to show that as a consequence of the message, rioting was committed. The learned counsel would refer to the law laid down in **Ramesh v. Sub Inspector of Police, Thiruvambady Police Station and Anothe** r[1] , and it is submitted that the mere chance of provocation without any actual provocation would not be sufficient to constitute the offence under Section 153 of the IPC. It is also submitted that in order to attract the offence under Section 120(o) of the Kerala Police Act, there should be materials to suggest that the petitioner had caused a nuisance of himself to any person by repeated or undesirable or anonymous calls, letter, writing, message, e-mail or through a messenger. There is no material to show that any nuisance was caused by the petitioner, > 1 2021 (1) KHC 339 Crl.M.C No. 2743 of 2023 4 contends the learned counsel. It is further submitted that the allegations are extremely vague and on the basis of which, the petitioner is not liable to be prosecuted. It is also submitted that the petitioner was only a member of the WhatsApp group, and therefore no responsibility could have been cast upon him, nor he could be prosecuted. 4. I have considered the submissions advanced. 5. The records reveal that the informant is a member of the Al Arafa Religious and Charitable Trust. In his complaint, the allegation is that the accused spread a message on Social Media that certain individuals had concealed themselves in a mosque, and the same is likely to cause the spread of the virus. Believing the message to be true, the authorities reached the mosque and conducted an inspection. There was no truth in the message that came out of the WhatsApp group in which the petitioner is a member. The question is whether the above acts would attract the offences under Section 153 of the IPC and Section 120 (o) of the Kerala Police Act, 2011. ## 6. S.153 of the Indian Penal Code reads as follows: “Whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a Crl.M.C No. 2743 of 2023 5 term which may extend to one year or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.” ## 7. This Court in **Sajidh V State of Kerala** [2019 (4) KLT 808] ## had occasion to hold as follows 7. The ingredients to constitute an offence under S.153 I.P.C are the following: (1) An act shall be done which is illegal (2) Such illegal act shall be done malignantly or wantonly (3) The act done shall cause provocation to some person (4) The act giving provocation should have been done (a) intending that the provocation will cause the offence of rioting to be committed or (b) knowing it to be likely that such provocation will cause the offence of rioting to be committed. 8. The word “illegal” is defined in S.43 of the Indian Penal Code as follows: “The word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action.” 9. The expression “malignantly” implies an act done with malice. The expression “wantonly” means act done recklessly without regard to the consequences. 8. From the materials placed before this Court, it does not appear that the post, which had originated from the WhatsApp group in which the petitioner was a member, caused provocation to commit the offence of rioting by any person or that rioting was actually committed. In that view of the matter, the offence under Section 153 of the IPC is not attracted against Crl.M.C No. 2743 of 2023 6 the petitioner herein. 9. Insofar as Section 120 (o) of the Kerala Police Act, 2011 is concerned, the provision provides that if any person causes, through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, email or through a messenger, he shall be punished on conviction. The ingredients of an offence under S.120(o) of the Kerala Police Act are: (1) A person causing a nuisance of himself to another person (2) Causing such nuisance shall be through any means of communication (3) Act causing nuisance may be done by repeated or undesirable or anonymous call, letter, writing, message, email or through a messenger. There is no case for the prosecution that the petitioner has sent repeated messages or e-mail to the complainant, causing inconvenience or nuisance. The incident had occurred during the pandemic, and the group members were sharing their concerns through the messaging group in which they were members. The fact that some action was initiated by the law enforcement authorities is no reason to attract the offence under Section 120(o) of the Police Act. No prosecution proceeding has been initiated against the accused for furnishing false information to the police so as to proceed against the perpetrators under the relevant provisions of the IPC. Crl.M.C No. 2743 of 2023 7 10. Having considered the facts and circumstances, I am of the considered opinion that the materials produced do not constitute the offences against the petitioner herein. In that view of the matter, the petitioner is entitled to succeed. This petition is allowed. Annexure-A5 Final Report in Crime No.495/2020 of Kottayam West Police Station and all further proceedings against the petitioner pending as C.C. No.154/2023 on the files of the Judicial Magistrate of the First Class-III, Kottayam, are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS Crl.M.C No. 2743 of 2023 8 ## **`APPENDIX OF CRL.MC 2743/2023`** ``` PETITIONERANNEXURES: ``` |`Annexure1`||`A TRUE COPY OF THE COMPLAINT DATED 7-4-2020`| |---|---|---| |||`SUBMITTED BEFORE THE DISTRICT POLICE CHIEF,`| |||`KOTTAYAM`| |`Annexure `|`2`|`A TRUE COPY OF THE REPORT DATED NIL SUBMITTED`| |||`BY THE SI OF POLICE, CYBER CELL, KOTTAYAM TO`| |||`THE DY.SP, DISTRICT SPECIAL BRANCH, KOTTAYAM`| |`Annexure `|`3`|`A TRUE COPY OF THE LETTER DATED 8-4-2020`| |||`ADDRESSED BY THE DY.SP, DISTRICT SPECIAL`| |||`BRANCH, KOTTAYAM TO THE DISTRICT POLICE CHIEF,`| |||`KOTTAYAM`| |`Annexure `|`4`|`A TRUE COPY OF THE FIR IN CRIME NO. 495/2020`| |||`OF THE KOTTAYAM WEST POLICE STATION`| |`Annexure `|`5`|`THE CERTIFIED COPY OF THE FINAL REPORT DATED`| |||`13-4-2020 SUBMITTED BY THE KOTTAYAM WEST`| |||`POLICE STATION IN CRIME NO. 495/2020`|