K.P. Ramakrishnan v. State of Kerala and Another

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938** **Crl.MC.No. 477 of 2016 ()** **-------------------------AGAINST THE ORDER/JUDGMENT IN CC 736/2015 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNUMPURAM CRIME NO. 122/2014 OF PALARIVATTOM POLICE STATION , ERNAKULAM** **PETITIONER/ACCUSED:** **------------------** **K.P.RAMAKRISHNAN S/O.K.KUNHIRAMAN, R/AT SKYLINE PALMSHADE APARTMENTS NEAR LULU MALL, EDAPPALLY, ERNAKULAM.** **BY ADV. SRI.KODOTH SREEDHARAN** **RESPONDENTS/COMPLAINANTS:** **-------------------------** **1. STATE OF KERALA THROUGH THE STATION HOUSE OFFICER, PALARIVATTOM, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **2. PREETHY NAMBIYAR D/O.P.K.N.NAMBIAR, R/AT CENTURY GARDEN VILLA NO.7 VENNALA, ERNAKULAM DISTRICT.** **R2 BY ADV. SRI.RENJITH B.MARAR R2 BY ADV. SMT.RESHMI JACOB R2 BY ADV. SRI.P.S.SYAMKUTTAN R2 BY ADV. SMT.B.DEEPALAKSHMI BY PUBLIC PROSECUTOR:SRI E C BINEESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13.10.2016, THE COURT ON 26.10.2016 PASSED THE FOLLOWING:** **Crl.MC.No. 477 of 2016 ()** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **ANNEXURE I: TRUE COPY OF THE STATEMENT RECORDED BY THE PALARIVATTOM POLICE STATION DATED 22/1/2015** **ANNEXURE II: TRUE COPY OF THE FIR IN CRIME NO.122/2015 DATED 30/01/2015 BY THE PALARIVATTOM POLICE STATION** **ANNEXURE III: TRUE COPY OF THE FINAL REPORT IN CRIME NO.122/2015 BY THE PALARIVATTOM POLICE STATION** ## **RESPONDENT(S)' EXHIBITS:NIL** **True Copy /** **P A to Judge** ## **SUNIL THOMAS, J.** ## ================= **Crl.M.C.No.477 of 2016** ================= Dated this the 26[th] day of October, 2016 ## **ORDER** The sole accused in Crime No.122 of 2015 of Palarivattom Police Station for offences punishable under section 506(i) of the Indian Penal Code and 118(d) of the Kerala Police Act challenges the FIR and the final report laid thereon. 2. According to the de facto complainant, she is conducting a career development programme in one of the schools, where the daughter of the accused was studying, she had conducted a career development programme. The accused on 13.10.2014 and 19.12.2014 called her over the mobile phone, abused her and criminally intimidated her regarding the conduct of the programme by her. Complaint was laid by her and crime was registered. After investigation, final report was laid and the matter is now pending as C.C.No.736 of 2015 of Judicial First Class Magistrate Court, Ernakulam. 3. One of the contention set up by the accused was that even though he was chargesheeted for offence punishable under section 118 of the KP Act, it has been held as unconstitutional by Crl.M.C.477/16 2 the Honourable Supreme Court in the decision reported in **Shreya Singhal v. Union of India (2015(5) SC 1)** as violative Article 19 (1)(a) of the Constitution of India and not saved by Article 19(2). Hence, it was contended that the above offence will not lie against the accused. Learned counsel referred to the decision reported in **Manik Taneja and Another v. State of Karnataka and Another (2015 KHC 4046)** wherein, it was held that to constitute a criminal intimidation, the threat must be with the intention to cause alarm. The mere expression of any word without any intention to cause alarm would not be sufficient to bring the application of that section. 4. In reply, de facto complainant contended that even assuming that section 118(d) of the KP Act is not applicable, facts constituting other offences are made out in the materials gathered by the investigating agency and consequently, the contention that offences under the KP Act are not sustainable is not tenable. Learned counsel pointed out that section 120(o) of the KP Act is an identical provision and in the light of the materials gathered, the possibility of the Court charge being framed for other offences than section 118 (d) of the KP Act cannot be ruled out. Crl.M.C.477/16 3 5. Learned counsel for the accused vehemently contended that the offence punishable under section 506(1) of IPC was not made out from the facts revealed. The contention of the learned counsel for the petitioner was that the ingredients constituting an offence under section 506 IPC is mentioned in section 502 IPC. Learned counsel pointed out that, to constitute a criminal intimidation, there must be an act mentioned therein which was intended to cause alarm to that person. According to the counsel, the various other ingredients of section 503 are not applicable to the facts of this case and at the most, the only ingredient that may lie is an act with an intention to cause alarm to the person aggrieved. It was contended that the ingredients mentioned in the FI statement of the de facto complainant does not disclose that the accused had done any act which was likely to or intended to cause alarm to her. Learned counsel took to the various portions of the statement given by the de facto complainant to the police. It was pointed out that she specifically referred to two instances one in September 2014 and another one on 19.12.2014, on which days the accused called her directly over the phone and threatened and intimidated her. There were several other allegations which are mentioned in her statement. According to the counsel, after Crl.M.C.477/16 4 referring to the first part of the instance, she had stated that when the accused called her over the mobile phone and threatened and intimidated her, she ignored it. Hence, learned counsel submitted that first part of the allegation against the accused is inconsequential, since she did not deem it fit to initiate any proceedings on that basis. The second part of the instances starts by referring to the incident that happened on 08.12.2014. According to her, he referred to her conduct in a bad taste in the open house. The ingredients that are referred to in the second limb of the incident by itself are thoroughly insufficient to constitute a criminal intimidation, contended by the learned counsel for the petitioner. 6. At the first blush, it may appear that the main part of the allegation form the first limb and whereas the second limb does not reveal any such serious allegations. However, learned counsel for the de facto complainant took me through the various portions of the statement which gives a clearer picture. Even though she stated that first phone call was made in September 2014, in her further statement recorded by the police, she had clarified that in fact the first phone call was in the month of October on 13.10.2014. This is in consonance with the material collected by the prosecution Crl.M.C.477/16 5 which shows that the accused had called the de facto complainant on 13.10.2014 and 19.12.2014. The statement given by her stated that on 08.12.2014, the accused abused her openly in the open house which prompted her to file the case. She had stated that accused had only telephoned her twice. However, on several other occasions, he had spread rumours about her conduct. Thereafter, she referred to a phone call made by the accused and that after abusing her, he handed over the telephone to his friend asking her to reveal her address. They threatened that they will not permit her to live in the city and she has to face serious consequences. According to the learned counsel for the de facto complainant, this incident happened while the second call was made on 19.12.2014. Hence, it was contended that the accused had made the second call during the second limb of the incident referred to by her. It was contended that though this part of the statement recorded by her appears to be slightly ambiguous, a close reading of it indicates that the second part of the incident is more serious. I had a close perusal of the statement. It appears that the second limb of the incident also refers to phone call on 19.12.2014. In the light of the ambiguity, it was for the de facto complainant to explain it at the time of trial. Hence, the question as to whether the allegation Crl.M.C.477/16 6 against the accused will stand is a matter which requires elaborate hearing. However, I do not feel that available materials are thoroughly insufficient for prosecuting the accused. Hence, I am not inclined to accept the contention of the learned counsel for the accused. 7. Learned counsel for the accused referring to Annexure-I contended that it is a statement recorded by the police on 22.01.2015. It refers to the same set of allegation. According to the counsel, the accused was questioned by the police on the basis of the complaint laid by the de facto complainant. However, the FIR was registered on 30.01.2015, possibly on the basis of a subsequent statement given by her. Hence, learned counsel contended that there was an earlier complaint, which is suppressed and hence, the present complaint leading to the registration of crime looses its significance. 8. It is true that the statement of the accused was recorded on 22.01.2015. It is not clear as to the circumstances that led to the recording of a statement. It is also not clear as to whether the complainant herein had lodged such a complaint. Hence, it is too early at this stage to contend that there was an earlier complaint on which no action was taken except recording the statement of the Crl.M.C.477/16 7 accused. 9. It was further contended by the learned counsel for the accused that FIR does not disclose any cognizable offence justifying investigation under section 156(1) Cr.P.C, which could be done only with an order of the magistrate under section 155(2) of Cr.P.C. It was contended that hence conducting of cognizance itself was bad and vitiated. In reply, learned counsel for the de facto complainant referred to the decisions reported in **Baikuntha Nath Jena v. State of Orissa and Others (2004(2) OLR 577)** and **Guguloth Jagan v. State of Telangana (2015 KHC 3624)** . In both the above cases, Orissa High Court as well as Hyderabad High Court uniformly held that when an offence which does not disclose as to whether it is a cognizable or non cognizable offence and if the investigating officer found that a non cognizable offence is only made out, a report may be submitted specifying that a non cognizable offence is also made out and the report is not rejected on the ground that no previous permission of the competent magistrate in accordance with section 155(2) Cr.P.C I feel that this would answer the contention of the learned counsel for the petitioner. Having considered the above facts, I feel that there is no merit in the Crl.M.C. It is accordingly dismissed, however, making Crl.M.C.477/16 8 it clear that the petitioner herein will be entitled to raise all his objections at the appropriate stage, including seeking a discharge, if that stage has not reached. Sd/- **SUNIL THOMAS Judge** Sbna True Copy / P A to Judge