Mobin v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **Crl.MC.No.5709 OF 2020(C)** **CC 173/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT , RAMANKARI** **CRIME NO.1/2020 OF Kainady Police Station , Alappuzha** **PETITIONER/S:** **MOBIN AGED 27 YEARS MOHANAN, PATHINALLI CHIRA, WARD-2, KAVALAM PANCHAYATH, KUNNUMMA VILLAGE, ALAPPUZHA.** **BY ADV. SHRI.R.UMASANKAR** **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **OTHER PRESENT:** **SR.PP.C.S.HRITHWIK** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02-03-2021, THE COURT ON 23-03-2021 PASSED THE FOLLOWING:** **Crl.M.C.No.5709 of 2021** 2 ## **ORDER** **Dated this the 23[rd] day of March, 2021 Petitioner is the second accused in C.C.No.173 of 2020 on the files of the Judicial First Class Magistrate Court, Ramankary. The case originated from Crime No.01 of 2020 registered at the Kainady Police Station for the offences punishable under Sections 153, 353, r/w 34 of IPC and Sections 39 and 121 of the Kerala Police Act, 2011.** **2. The prosecution allegation is that, while the S.I.of Police, Kainady and party, was on law and order duty, they found the accused on the Kavalam-Lisview Road, at about 12.45 a.m. on 01.01.2020, engaged in activities which were bound to disturb public tranquillity. Even though the miscreants were asked to leave, they refused. Thereupon, the police party arrested the first** **Crl.M.C.No.5709 of 2021** 3 **accused. While the arrested accused was being taken to the police jeep, the petitioner caught hold of the Sub Inspector's shirt, resulting in two buttons of the shirt being torn off. Further, the petitioner along with accused Nos.3 and 4 manhandled two police constables. On the Sub Inspector calling for more force, the petitioner and the other two accused ran away from the spot. The first accused was taken to the police station and the crime registered.** **3. Learned Counsel for the petitioner contended that, even if the allegations are accepted in their entirety the offence under Section 353 will not be attracted. According to the learned counsel, the offence will be attracted only when a public servant is assaulted or criminal force used against the public servant with intent to prevent or deter that person from discharging his duty. To buttress the contention,** **Crl.M.C.No.5709 of 2021** 4 **reliance is placed on the decision of this Court in** _**Durga Prasad and others v. State of Kerala [2014(3) KHC 704]**_ **and** _**Hariprasad and another v. State of Kerala and another [ILR 2017 (2) Ker. 395]**_ **. It is contended that the allegations in the final report do not reveal that, the assault or use of criminal force was with intent to obstruct the policeman from doing their duty.** **4. The challenge against inclusion of Section 39 of the Kerala Police Act is on the premise that, in the absence of evidence of violation of any lawful direction issued by the police, no offence under that section would be attracted.** **5. Referring to Section 146 IPC, which defines rioting, it is contended that for attracting the offence under Section 153, there should be evidence of the accused having wantonly provoked others with intent to cause riot. Such evidence being completely absent, the offence will not be** **Crl.M.C.No.5709 of 2021** 5 **attracted, is the contention.** **6. The learned Public Prosecutor contended that no extraordinary circumstance, warranting premature termination of the criminal proceedings has been made out by the petitioner and that, the contentions urged can only be decided on appreciation of evidence, which this Court is not expected to indulge in while exercising the power under Section 482 Cr.P.C** **7. It is true that the offence under Section 353 would be attracted when a public servant is assaulted or criminal force used with intent to prevent or deter that person from discharging his duty. Here, the specific allegation is of the petitioner and other accused having obstructed the Sub Inspector of Police and of having assaulted the other policemen while taking the first accused to the police jeep after his arrest. It is also alleged that the act of the petitioner had** **Crl.M.C.No.5709 of 2021** 6 **resulted in two buttons from the Sub Inspector's uniform being torn off. In the nature of the allegations, there is no substance in the contention that the action of the accused will not attract the offence under Section 353. As far as the decision relied on by the petitioner is concerned, in** _**Durga Prasad**_ **, the allegation is of the accused persons having shouted at the Sub Inspector and picked up a quarrel with him, thereby obstructing him from discharging his duty. In** _**Hariprasad**_ **, the allegation is only of the accused having obstructed the police officials from discharging their official duties by refusing to move the accused’s vehicle, which was parked on the public road and was unloading goods, and thereby having obstructed movement of other vehicles. In both cases, there is no allegation of the accused having assaulted or used criminal force with intention to obstruct the police** **Crl.M.C.No.5709 of 2021** 7 **officials from discharging their duties. Hence, the decisions are clearly distinguishable on facts.** **8. The challenge against inclusion of the offences under Section 153 of IPC and 39 of the Kerala Police Act call for appreciation of evidence, which, as rightly contended by the learned Public Prosecutor, this Court is not expected to do while exercising the jurisdiction under Section 482 Cr.P.C** **For the reasons aforementioned, the Crl.M.C is** **dismissed.** **Sd/-** **V.G.ARUN JUDGE** **Scl/** **Crl.M.C.No.5709 of 2021** 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A1** **CERTIFIED COPY OF THE F.I.R. IN CRIME NO.1/2020 DATED 01/01/2020 OF KAINADY PS.FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, RAMANKARY.** ## **ANNEXURE A2** **CERTIFIED COPY OF THE FINAL REPORT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, RAMANKARY BY THE KAINADY POLICE.** **Crl.M.C.No.5709 of 2021** 9