## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS**
**MONDAY ,THE 22ND DAY OF OCTOBER 2018 / 30TH ASWINA, 1940**
## **Crl.MC.No. 3221 of 2018**
**(CRIME NO. 978/2018 OF Chengannoor Police Station)**
## **PETITIONER/1st ACCUSED:**
**MANOJ P.JOHN, AGED 45, S/O. LATE JOHN, PUTHENVEETTIL GRACE BHAVAN, ANGADICAL SOUTH P.O., CHENGANNUR, ALAPPUZHA DISTRICT.**
**BY ADVS. SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE**
## **RESPONDENT/DEFACTO COMPLAINANT & STATE:**
- **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**2 SHOBHANA GEORGE, EX M.L.A. CHENGANNUR BHAVANAM, PULIYOOR P.O., CHENGANNUR, ALAPPUZHA DISTRICT-689510.**
**BY ADVS. SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER**
## **OTHER PRESENT:**
**SUMAN CHAKRAVARTHY SR.PP**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.09.2018, THE COURT ON 22/10/2018 PASSED THE FOLLOWING:**
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## **O r d e r**
The petitioner is arrayed as first accused in Crime No.978/2018 of Chengannur Police station for offences punishable under sections 500,509,354(A) read with section 34 IPC, Section 120(o) of the Kerala Police Act,2011, Section 67 of the Information Technology Act and section 4 of Indecent Representation of Women(Prohibition) Act.
2. The second respondent, who is a former MLA, submitted a complaint before the State Police Chief alleging that some persons including the petitioner had posted photos of second respondent in the Face Book, with vulger captions which defamed her and lowered her reputation in the estimation of public. It was forwarded to the District Police Chief and process of law was set in motion. Crime was registered and the petitioner was arrested.
3. The criminal proceeding initiated against the petitioner is assailed in this Cr.M.C. The second respondent though served, did not contest the proceedings.
4. The learned counsel for the petitioner harped on three main grounds of attack. It was contended that, registration of crime was bad since there was infraction of section 155 Cr.P.C. It was contended that, sanction was accorded by the Magistrate under Section 155 Cr.P.C. without any application of mind. Lastly, it was contended that even the materials gathered did not reveal commission of any of the
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above offences. An ancillary contention was that even the available materials disclosed only offences under the IT Act and being a special statute, the offences under IPC would not lie. This was countered by the public prosecutor contending that investigation was launched in due compliance with the statutory provision and that investigation has revealed incriminating materials.
5. The records reveal that, the 2[nd] respondent laid the complaint before the State Police Chief on 29/3/2018. He forwarded it to the IG, Kochi. It was ultimately forwarded to the SHO, Chengannur. The SHO, on1-4-2018 submitted a petition before the JFMC Chengannur for sanction, purportedly under section 155 Cr.P.C. Sanction was granted on the same day at 9.p.m.. Crime was registered on 2/4/2018.
6. Learned counsel for the petitioner contended that under section 155 (1) Cr.P.C.,when information is given to an officer in charge of a police station of the commission of a non-cognizable offence, he shall enter the substance of information in the book kept and refer the informant to the Magistrate. Section 155 (2) bars the police officer from investigating a non-cognizable case without the order of the Jurisdictional Magistrate. According to the learned counsel, the above provisions operate in two situations. According to the counsel, section 155 (1) deals with a situation when an informant proposes to set in motion the investigation machinery and section 155
(2) applies when a police officer proposes to initiate investigation.
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According to the counsel, in a situation under section 155 (e), the informant shall be referred to the Magistrate. It was contended that, in the case at hand, the police instead of referring the informant to the police, sought sanction directly. Consequently, the registration of crime was bad in law and hence liable to be quashed.
7. To support the above contention, the learned counsel relied on the decision of Allahabad High Court in **Kunwar Singh v. State U.P. And Others (2007 KHC 6246)** and that of this court in **Anto Joseph v. State of Kerala and Others (2016 (3) KHC 832) .** In Kunwar Singh's case (supra), it was held that in the light of above statutory provision, non cognizable offence cannot be investigated by the police without an order passed by the Magistrate. It was held that, there is nothing in the section which dis entitle the complainant to approach the court with a prayer to direct the police to conduct investigation. In Anto Joseph's case (cited supra), this Court at para 19 had held that, a reading of sub section (2) will reveal that upon information given of the commission of a non-cognizable offence, a police officer can, instead of merely referring the informant to the Magistrate under section 155 (1), report the case to the Magistrate under section 155 (2), who can, under such circumstances, order such investigation, without first taking cognizance of the offence under Section 190 of the Code. It was also held that a private person may also move the learned Magistrate and secure order, but the
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investigation can only be carried out by the officer in charge of the jurisdictional police station.
8. The reading of section 155 Cr.P.C. along with above decisions, clearly show that a non cognizable offence cannot be investigated by the police officer without the permission of the jurisdictional magistrate and also that such permission can be sought by a private person or the police officer concerned. There is nothing in the section to indicate that when an informant approach the police officer, he alone shall seek permission of the Magistrate to commence investigation. In fact, an identical contention as now raised by the petitioner herein was raised in Anto Joseph case ,which was correctly rejected. Hence, the above contention of the learned counsel for the petitioner cannot survive.
9. According to the petitioner, the second respondent had submitted a detailed complaint enclosing the print out of certain Facebook posts. However, when the permission was sought, none of the above materials were placed before the Magistrate. It was hence, contended that the Magistrate did not have any material before him for a proper application of mind. It was contended that, in Anto Joseph's case it was held that learned Magistrate before whom such information is placed seeking order under section 155 (2) will have to make sure that the police officer is not indiscriminately abusing his powers in commencing an investigation in a non-cognizable case.
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10. It is true that there is nothing to show that either the complaint or the enclosures were placed before the Magistrate. However, the crux of the facts constituting the allegation was referred to in the application submitted by the SHO. Essentially, the very purport of the section 155 Cr.P.C.is to ensure that the power of the police officer to commence investigation is not indiscriminately used. In view of that matter, I cannot agree with the contention of the learned counsel for the petitioner that the Magistrate did not judiously apply the mind while according permission to commence investigation.
11. It was contended by the learned counsel that the petitioner has only shared the post and has not posted any objectionable comment. It was also contended, relying on **Sharat Babu Digumakti v. Government (NCT OF Delhi) (2017) 2 SCC 18)** that offences alleged even if believed, only falls within the ambit of offences under the IT Act 2000 and that statute being a special statute, petitioner cannot be proceeded against under the IPC.
12. It is true that the materials gathered only show that the petitioner has shared the comments. Whether it amounts to publishing or transmitting the objectionable material and whether the petitioner has thereby subscribed to the views of objectionable posts is a matter of investigation and evidence. It is too early at this stage to comment on it.
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13. It is true that in Sharat Babu's case (supra), the Hon'ble Supreme Court had held that IT Act is a complete Code relating to offences covered under the IT Act. It was held that, all the special provisions having the overriding effect discover a criminal act and the offender, he gets out of the net of IPC offence. In that case, the accused stood chargesheeted for offence punishable under sections 292 and 294 IPC and Section 67 of IT Act. In that context, Supreme Court held that the provision are overlapping and hence IT Act will override IPC offences.
14. However, in this case final report is yet to be laid. It cannot be visualised now as to which all charges would finally be slapped on the accused. Further, from the nature of allegations, it does not appear that sections 500, 509 and 354((A) will overlap with offences alleged under the IT Act.
15. Another ancillary contention set up was that offence under section 500 is also not sustainable. It was contended that for something to be defamatory injury to reputation in a basic ingredient. Something may be grossly offensive and may annoy or be inconvenient to somebody, without affecting his reputation. As mentioned above, it is too early at this stage to evaluate whether section 500 is attracted. However, 2[nd] respondent has a specific allegation that being a public figure such publication has lowered her reputation among the public.
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The above evaluation of the facts in the light of settled legal principles lead to a finding that the contentions now set up are not sustainable at this stage. Accordingly, Crl.M.C.is liable to be dismissed.
Crl.M.C.is dismissed.
**Sd/-**
**SUNIL THOMAS**
dpk
**JUDGE**
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**ANNEXURE 1 COPY OF F.I.R. IN CRIME NO.978/2018 ALONG WITH THE PETITION FILED BY THE SECOND RESPONDENT BEFORE THE STATE POLICE CHIEF ANNEXURE 2 COPY OF PROPERTY LIST. ANNEXURE 3 COPY OF MAHAZAR PREPARED BY THE POLICE WHILE SEIZING THE MOBILE PHONE OF THE PETITIONER. ANNEXURE 4 COPY OF REPORT DATED 03.04.2018 FILED BY THE DEPUTY POLICE SUPERINTENDENT(DCRB), ALAPPUZHA.**
