K.C. Joseph v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** ## **CRL.MC.NO.4308 OF 2019** **CRIME NO.1365/2017 OF NEDUMBASSERY POLI CE STATION , ERNAKULAM** ## **PETITIONER/ACCUSED:** **K.C.JOSEPH, AGED 71 YEARS, S/O.K.M.CHACKO, KARUVELITHARA HOUSE, VADAVATHOOR.P.O., KOTTAYAM-686010.** **BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SHRI.AMAL AMIR ALI, SMT.SUZANNE KURIAN SRI.ENOCH DAVID SIMON JOEL SRI.GEORGE A.CHERIAN, SRI.LEO LUKOSE SRI.PAUL JACOB (P), SRI.RONY JOSE** ## **RESPONDENTS/STATE & COMPLAINANT:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM**| ||**(THROUGH THE S.I. OF POLICE,**| ||**NEDUMBASSERY POLICE STATION).**| |**2**|**BRIJITH KRISHNA, AGED 41 YEARS,**| ||**S/O.MADHUSUDANAN NAMBEESHAN, KRISHNA NIVAS,**| ||**NEAR CHAMUNDESHWARI TEMPLE, ULICKKAL, KOKKAD,**| ||**VAYATHUR VILLAGE, IRITTI TALUK, KANNUR DISTRICT.**| |**3**|**VICTIM**| **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR FOR R1, SRI.V.HARISH, ADVOCATE FOR R2, SRI.S.SREEDEV, ADVOCATE FOR R3 ADVS.SRI.RAJAN VISHNURAJ, SMT.ASWATHY KRISHNAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ------------------------------------Crl.M.C. No. 4308 of 2019 ------------------------------------Dated this the 29[th] day of July, 2019 ## O R D E R The proceedings being under challenge in this Crl.M.C. is the one as per the impugned Anx.A-3 final report/charge sheet filed by the Police in Anx.A-1 Crime No.1365/2017 of Nedumbassery Police Station, for offences punishable under Sec.228A(1) of the IPC, 1860, which has now led to the pendency of C.C.No.449/2019 on the file of the Additional Judicial Magistrates (Trial for MP/MLA Cases) Court, Ernakulam. 2. Heard Sri.Bechu Kurian Thomas, learned senior counsel instructed by Sri.Leo Lukose, learned counsel appearing for the petitioner accused, Smt.Priya Shanavas, learned Prosecutor appearing for the 1[st] respondent, Sri.V.Harish, learned advocate appearing for the 2[nd] respondent (first informant) and Sri.S.Sreedev, learned advocate appearing for the 3[rd] respondent (victim). 3. The brief of the prosecution case is that, the petitioner Crl.M.C. No. 4308 of 2019 **==> picture [19 x 9] intentionally omitted <==** had made a Facebook post whereby the identity of the victim in Crime No.297/2017 of Nedumbassery Police Station was disclosed. The subject Crime No.297/2017 of Nedumbassery Police Station wherein the 3[rd] respondent is the victim, is in respect of the offences punishable under Secs.342, 366, 376, 506(i), 120B r/w 34 of the IPC. The present Anx.A-1 Crime No. 1365/2017 of Nedumbassery Police Station, has been registered on 10.9.2017, for offences punishable under Sec.228A(1) of the IPC, on the basis of the above said first information statement of the 2[nd] respondent (first informant). The police after investigation of Anx.A-1 crime has filed Anx.A3 final report/charge sheet in the said crime, which has now led to the pendency of C.C.No.449/2019 on the file of the Additional Judicial Magistrates (Trial for MP/MLA Cases) Court, Ernakulam. 4. According to the petitioner, the said Facebook post was made by mistake and inadvertently and was immediately corrected, and was made out of ignorance of the provision that the identity of the victim should not be disclosed, as mandated in Sec.228A(1) of the IPC. The petitioner Crl.M.C. No. 4308 of 2019 **==> picture [19 x 9] intentionally omitted <==** would further point out that the said Facebook post was made by him only to show empathy and solidarity with the 3[rd] respondent victim, and to ensure that the accused persons who are responsible for the said crime are booked in accordance with law, and it was made only with such intention, whereby it has led to the disclosure of identity of the 3[rd] respondent. Immediately on realising the mistake, steps were taken by the petitioner to delete the Facebook post. Further it is urged that, the instant crime has been registered on the basis of the first information of the 2[nd] respondent after delay of 5 months. 5. Further it is pointed out that, the petitioner has now settled the issue between the 3[rd] respondent victim, and has expressed his unconditional apology to her, and the 3[rd] respondent has also acknowledged in Anx.A-4 affidavit dated 18.6.2019 that the matter has been settled with the petitioner, and that she has no objection whatsoever in quashing the impugned criminal proceedings arising out of Anx.A-1 FIR, etc. The petitioner would place reliance on the judgment rendered by this Court in identical circumstances in the Crl.M.C. No. 4308 of 2019 **==> picture [18 x 9] intentionally omitted <==** case in _**Aju Varghese v. State of Kerala**_ involving the very same victim and that too in respect of the very same Crime as in the instant case, wherein she was the victim, and in the said judgment reported in _**2019 (1) KLT 643,**_ this Court has quashed the impugned criminal proceedings therein as the accused therein had settled the issue with the respondent victim. It will be profitable to refer to paragraph No.10 of the abovesaid decision of this Court in Crl.M.C.No.5247/2017 decided on 27.9.2018 in the case in _**Aju Varghese v. State of Kerala [2019 (1) KLT 643]**_ which reads as follows: _“ 10. Learned counsel for the petitioner, however, pointed out that, the section itself clearly shows that the rigor of S.228A IPC is diluted to a certain extent by sub section (2) by which, in cases provided therein, printing and publication of the facts leading to disclosure of identity of the victim is not barred. Under S. 228A(2) (b) IPC, an option is given to the victim to forgo the protection. The victim may have her own reasons also. It may be that the victim, though had to face ignominy following the sexual assault might have mustered the courage to stand up against the atrocity committed on her and notwithstanding it, may dare to disclose her identity or she may feel that, in a particular case, the disclosure was not without any malice. In other words, there may be exceptional cases, wherein the victim or next of the kin may feel that, disclosure of the name may not lead to sociological_ Crl.M.C. No. 4308 of 2019 ..6.. _ostracization or have any adverse impact on the victim. Freedom is given to such victim to forgo that protection. However, the section is clear that, it has to be preceded by a consent in writing. In the case at hand, it has not happened. It is not a case of consent given, and hence, sub S. 2(b) of S.228 IPC cannot apply in this case. However, it gives an indication that, if the victim herself has no objection in quashing the proceedings and does not apprehend a social persecution by disclosure of her name in a given case, she can waive the benefit of statutory protection. Law should not insist for proceeding under the cover of predominant social interest to ensure that S. 228A IPC is paramount, notwithstanding the fact that the victim has condoned the conduct of a person who had disclosed her identity. However, such a situation may not be available under the Protection of Children from Sexual Offences Act. Under S. 23 of the Protection of Children from Sexual Offences Act, there is an absolute bar against disclosure of name of victim child, in any media. The only exception is a disclosure pursuant to the order in writing of special Court, in the interest of the child.”_ 6. After hearing all the Advocates concerned in this case, this Court is inclined to take the view that the matter in issue in this case is almost identical as in the above reported decision, and is covered in favour of the petitioner by virtue of the dictum laid down by this Court in _**Aju Varghese v. State of Kerala**_ reported in _**2019 (1) KLT 643**_ , and that the reasonings and line of directions rendered by this Court in that case could be adopted Crl.M.C. No. 4308 of 2019 **==> picture [18 x 9] intentionally omitted <==** in present case as well. The 2[nd] respondent is only the first informant in the present case, whereas the person who is directly affected by the action of the petitioner which has led to the registration of Anx.A-1 crime is the 3[rd] respondent-victim. Since the 3[rd] respondent has fully settled the matter with the petitioner accused and the 3[rd] respondent has no objection whatsoever in quashing the impugned criminal proceedings, the further continuation of the impugned criminal proceedings would be an abuse of the process of court. In that view of the matter it is ordered that, the impugned Anx.A-3 final report/charge sheet filed in Crime No.1365/2017 of Nedumbassery Police Station, which has now led to the pendency of C.C.No.449/2019 on the file of the Additional Judicial Magistrates (Trial for MP/MLA Cases) Court, Ernakulam, and all proceedings taken in pursuance thereof as against the petitioner, will stand quashed. The petitioner will produce certified copies of this order before Investigating Officer concerned and as well as before the abovesaid trial court concerned for necessary information. The office of the Advocate General will also forward copy of this order to the Investigating Officer concerned for necessary information. Crl.M.C. No. 4308 of 2019 ..8.. 7. Sri.V.Harish, learned counsel appearing for R-2 (first informant) would point out that certain allegations are made against his party in this Crl.M.C., which according to him are blatantly false, etc. It is made clear that this Court has not entered into the merits of the controversy in any manner, and has rendered the present order only on the basis of the settlement between the 3[rd] respondent and the petitioner accused, and therefore it is only to be held that, all such allegations made as against the 2[nd] respondent in the Crl.M.C., are unnecessary for adjudication of issues raised in this case, and all such issues are left open. With these observations and directions, the Criminal Miscellaneous Case stands finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 4308 of 2019 ..9.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE FIR NO.1365 OF 2017 DATED 10.9.2017 REGISTERED BY THE NEDUMBASSERY POLICE STATION.** **ANNEXURE A2 A TRUE COPY OF THE SCREEN PRINTS OF THE FACEBOOK POSTS. ANNEXURE A3 CERTIFIED COPY OF THE CHARGE SHEET/FINAL REPORT IN FIR NO.1365 OF 2017 DATED 25.1.2019. ANNEXURE A4 A TRUE COPY OF THE AFFIDAVIT OF THE VICTIM DATED 18.6.2019.**