M.V. Devassy @ Devassy Mullakkara v. Jacob and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942** ## **Crl.MC.No.7631 OF 2015** **AGAINST IN CC NO.109/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, ADIMALI** ## **PETITIONER/ACCUSED:** **M.V.DEVASSYA @ DEVASSYA MULLAKKARA AGED 65 YEARS, S/O. VARKEY, MULLAKKARA HOUSE, KAMBALLOOR P.O., KASARAGOD.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.MITHA SUDHINDRAN SRI.M.REVIKRISHNAN** ## **RESPONDENTS/DEFACTO COMPLAINANT & STATE:** **1 JACOB S/O. JOSEPH, KARUKAPPILLIL HOUSE, ADIMALI KARA, MANNAMKALA BHAGOM, MANNAMKANDAM VILLAGE- 685 561.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.7631 OF 2015 2 ## **O R D E R** ## **Dated this the 15th day of January 2021** The petitioner is the accused in C.C. No.109/2014 on the file of the Judicial First Class Magistrate Court, Adimali. The above case is charge sheeted by the Adimali Police against the petitioner alleging offence punishable under Section 153 A and 295 A IPC. 2. The prosecution case is that the petitioner with a view to develop hatred between different groups on grounds of religion and contra to the objective of maintaining secular harmony, issued a notice with the title “സവ�ശ�ഷ ശശഷകൾ" and cause the same to be circulated along with Malayala Manorama Daily, dated 14.07.2010. There is a further allegation that the notice and its content are intended to defy the priest and the believers of the Christian religious class namely, Roman Catholic and hence the accused had committed the aforesaid offences. Annexure A is the final report. This petition is filed to quash Annexure B, final report and all its further proceedings. 3. Heard learned counsel for the petitioner and the learned Public Prosecutor. Crl.MC.No.7631 OF 2015 3 4. The learned counsel for the petitioner submitted that even if the entire allegations in Annexure B, final report are accepted in _toto_ the offence under Section 153A and 295A IPC is not made out. The counsel also submitted that the maximum punishment that can be imposed under Section 153A IPC and 295A IPC are 3 years. As per Section 468 (2) (c) Cr.P.C., there is a bar to take cognizance after a period of 3 years in these types of cases. The counsel also submitted that admittedly the notice was circulated on 14.07.2010. The final report was filed only on 23.01.2014. There is no application filed by the investigating authority to condone the delay. Even though a discharge application was filed before the learned Magistrate, as per Annexure C order the learned Magistrate dismissed the same observing that in the light of Section 470(4) B the time taken for sanction can be excluded. The counsel submitted that there is no such provision in the Criminal Procedure Code. The learned counsel submitted that even if the prosecution case is accepted, the offence under Section 153 A and 295 A IPC are not attracted in this case. Crl.MC.No.7631 OF 2015 4 5. The learned Public Prosecutor submitted that this Court may not interfere with the final report filed by the Police and the petitioners may be allowed to raise these contentions before the trial court at the appropriate stage. 6. The admitted prosecution case is that the petitioner circulated the disputed notice on 14.07.2010. The final report was filed only on 23.01.2014. The maximum punishment that can be imposed under Sections 153 A and 295 A IPC are 3 years and in such cases as per Section 468 (2) (c) Cr.P.C. there is a bar to take cognizance after 3 years. Admittedly, in this case the final report is filed after 3 years. From the records it is not clear whether any application is filed to condone the delay. When the petitioner raised this point before the learned Magistrate, the learned Magistrate dismissed that prayer as per Annexure C order dated ## 09.06.2015. In Annexure C order it is stated like this:- _“2. Heard both sides. The offence alleged against the accused are punishable with imprisonment upto 3 years. The limitation for taking cognizance for such offence as per Section 468 of Cr.P.C. is 3 years. The crime is registered based on a notice alleged to be published by the petitioner on 15.07.2010. The charge sheet filed on 23.01.2014 i.e. after a period of 5 months and 9 days of the period of limitations. But as per sec 470 (4) B the time taken for sanction can be excluded. From the records it is seen that the request for sanction was on 09.05.2013 and the date of receipt of sanction is_ Crl.MC.No.7631 OF 2015 5 _07.01.2014. So this period of 7 months and 28 days can be excluded from the period of limits and thus the case is registered with in the period of limitation and court is entitled to take cognizance of the offence. Petition is dismissed.”_ 7. I fail to understand which is Section 470 (4)B mentioned in Annexure C order. It is not mentioned whether it is a provision in Criminal Procedure Code or a provisions in any other statute. Hence the time to get sanction cannot be excluded based on that provision. There is no provision like Section 470(4)B in Cr.P.C. According to me, Annexure B charge sheet is to be quashed for the reason that it is submitted beyond the period mentioned in Section 462(2)(c) Cr.P.C. 8. Moreover I perused the allegations in Annexure C final report. The admitted case of the prosecution is that the _de-facto_ complainant in this case is in Christian community and the accused is also in Christian community. To attract Section 153A, promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony are necessary. To attract Section 295A IPC, the prosecution has to establish that there is a deliberate and malicious act intended to outrage religious feeling of any class by Crl.MC.No.7631 OF 2015 6 insulting his religion or religious believes. The ingredients to attract the offence under Section 295A and 153A IPC are considered by the Apex Court in _**Amish Devgan v. Union of India [(2021) 1 SCC 1].**_ The relevant paragraph in the above judgment is extracted hereunder:- _“102. Clauses (a) and (b) to sub-section (1) of Section 153-A of the Penal Code use the words “promotes” and “likely” respectively. Similarly, Section 295-A uses the word “attempts” and sub-section (2) to Section 505 uses the words “create or promote”. The word “likely” as explained above, in our opinion, convey the meaning, that the chance of the event occurring should be real and not fanciful or remote [Tillmanns Butcheries (Pty) Ltd. v. Australasian Meat Industry Employees' Union]. The standard of “not improbable” is too weak and cannot be applied as it would infringe upon and fall foul of reasonable restriction and the test of proportionality. This is the mandate flowing from the catena of judgments of the Constitution Benches which we have referred to earlier and also the decision in Shreya Singhal drawing distinction between advocacy, discussion and incitement and that only the latter i.e. the incitement, is punishable whereas the former two would fall within the domain of freedom to express and convey one's thoughts and ideas.”_ 9. I perused the alleged notice issued by the petitioner, which is produced as Annexure D. Even if the entire statement in Annexure D is accepted in _toto,_ according to me the offence under Sections 153 A and 295 A IPC are not made out. If that be the case, prosecution against the petitioner is an abuse of the process of court. Crl.MC.No.7631 OF 2015 7 Therefore, this criminal miscellaneous case is allowed. All further proceedings in C.C. No.109/2014 on the file of the Judicial Magistrate of First Class, Adimali, is quashed. **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** Skk//18012021 Crl.MC.No.7631 OF 2015 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE F.I.R ALONG WITH THE F.I STATEMENT GIVEN BY THE 1ST RESPONDENT ,ON WHOSE COMPLAINT BEFORE POLICE THE CASE GOT INSTITUTED.** **ANNEXURE B TRUE COPY OF THE FINAL REPORT IN CRIME NO 559/2010 OF ADIMALI POLICE STATION ,IDUKKI DISTRICT. ANNEXURE C TRUE COPY OF THE ORDER DATED 09.06.2015 IN C.C.NO.109 OF 2014 PASSED BY THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLSS,ADIMALI** **ANNEXURE D CERTIFIED COPY OF THE NOTICE WHICH IS THE SUBJCT MATTER OF THE PRESENT PROCEEDING.** **RESPONDENTS' EXHIBITS: NIL**