N. Musthafa v. Union Territory of Lakshadweep

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944 ``` ## `CRL.MC NO. 1703 OF 2021` ``` [TO QUASH PROCEEDINGS IN C.C.NO.23/2014 PENDING ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ANDROTT] [CRIME NO.7/2013 OF KAVARATHI POLICE STATION] ``` ## `PETITIONER/ACCUSED:` ``` N.MUSTHAFA AGED 53 YEARS S/O LATE SAYED MOHAMMED KOYA K, NANGAMMADA HOUSE, KAVARATTI ISLAND, LAKSHADWEEP-682555. BY ADVS. SHYAM PADMAN SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR KUM.LAYA MARY JOSEPH SRI.HARISH ABRAHAM ``` ## `RESPONDENT/STATE:` ``` UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY THE ADMINISTRATOR, KAVARATTI, LAKSHADWEEP-682555 BY ADV SHRI.SAJITH KUMAR V., SC, LAKSHADWEEP ADMINISTRATION ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.04.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.1703 of 2021 2 ``` ORDER ``` ``` The petitioner is the accused in Crime ``` ``` No.7/2013 of Kavarathi Police Station, which is now pending as C.C.No.23/2014 before the Judicial First Class Magistrate Court, Andrott. The offences alleged against the petitioners are ``` ``` under Sections 186,353 and 447 of the Indian Penal Code (IPC). ``` ``` 2.The prosecution case is as follows: On ``` ``` 28.01.2013 at 8 a.m., the petitioner obstructed a police constable who was on duty at the gate of the Embarkation jetty at Kavarathi by snatching the papers from his hand after pushing ``` ``` him. It is alleged that, the aforesaid act was ``` ``` committed by the petitioner when the said police ``` ``` constable tried to verify the permits of the five mainlanders who were along with the petitioner. Annexure-A1 is the statement of the said police constable and Annexure-A2 is the ``` Crl.M.C.No.1703 of 2021 3 ``` F.I.R. After completing the investigation, ``` ``` Annexure-A3 final report was submitted, and the ``` ``` learned Magistrate had taken cognizance thereon. ``` ``` Subsequently, in the trial conducted, four witnesses were also examined as PWs.1 to 4. The deposition of the aforesaid witnesses is produced as Annexure-A5 series. This Crl.MC is filed in that circumstances challenging Annexure-A3 final report submitted and all further proceedings in C.C.No.23/2014 pending before the Judicial First Class Magistrate Court, Andrott. ``` ``` 3.Heard Sri.Shyam Padman, the learned counsel for the petitioner and Sri. Sajith Kumar V. the learned Standing Counsel for the respondent. ``` ``` 4.The contention of the learned counsel for ``` ``` the petitioner is that, since one of the offences alleged against the petitioner is under ``` Crl.M.C.No.1703 of 2021 4 ``` Section 186 of IPC, the learned Magistrate could not have taken cognizance of the said offence on account of the statutory prohibition contained ``` ``` in Section 195 of Code of Criminal Procedure ``` ``` (Cr.PC). As per the aforesaid provision, cognizance for the offence punishable under ``` ``` Section 186 can be taken only based on a ``` ``` complaint submitted by the public servant concerned or of some other public servant to ``` ``` whom he is administratively subordinate. It is also contended that, the allegations in the final report and the materials available on ``` ``` record would not attract the offences punishable under Sections 447 and 353 of IPC. ``` ``` 5.On the other hand, the learned Standing Counsel would oppose the aforesaid contention. ``` ``` It is pointed out that, even if it is assumed ``` ``` that the cognizance taken for the offence under Section 186 IPC is bad in law, there are ``` Crl.M.C.No.1703 of 2021 5 ``` materials available on record indicating the commission of an offences under Section 353 and ``` ``` 447 IPC which are distinct offences for which no procedure as contemplated under Section 195 ``` ``` Cr.PC is required to be followed. Therefore, ``` ``` since cognizance can be taken on those offences ``` ``` based on a final report submitted by the police ``` ``` under Section 173(2) of Cr.PC, the Crl.M.C, ``` ``` filed by the petitioner, is liable to be ``` ``` dismissed. It is also pointed out that the ``` ``` evidence in this case, has already been ``` ``` commenced, and four witnesses were already ``` ``` examined. Therefore, invocation of the powers of ``` ``` this Court under Section 482 Cr.PC at this ``` ``` juncture, is not at all warranted. ``` ``` 6.The crucial question that arises here is ``` ``` whether this is a fit case in which the powers ``` ``` of this Court under Section 482 Cr.PC can be invoked or not. As far as the offence under ``` Crl.M.C.No.1703 of 2021 6 ``` Section 186 of IPC is concerned, there is no doubt that the cognizance could have been taken only based on a complaint in writing submitted by the public servant concerned or of some other public servant to whom he is administratively subordinate, and hence the prosecution for the said offence cannot be launched on the basis of a final report submitted by the police under Section 173(2) of Cr.P.C. However, the question that arises here is whether, even if that be so, can the prosecution be sustained for the other offences which do not come under the provision of Section 195(1) of Cr.PC. ``` ``` 7.One of the offences alleged is under Section 447 of IPC. The aforesaid offence is attracted when there is criminal trespass on the ``` ``` part of the accused. The criminal trespass is defined under Section 441 of IPC which is ``` ``` extracted hereunder: ``` Crl.M.C.No.1703 of 2021 7 ``` “441. Criminal trespass.—Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass.” ``` ``` In this case, the allegation against the petitioner is that he entered into the Embarkation jetty at Andrott, which is a restricted area, without permission from the authorities concerned. While considering this aspect, there are two undisputable facts in this case. Firstly, the petitioner is a Government servant who was working as a Protocol Officer and was entrusted with the duty to accompany five officials from NORKA who came on the vessel from the mainland. Therefore, the petitioner came to the place of occurrence as part of his official duty. Secondly, going by the statement of the witnesses, it is evident that, the place of occurrence is at the gate of the Embarkation ``` Crl.M.C.No.1703 of 2021 8 ``` jetty. In the deposition, PW1, who was the defacto complainant, also specifically stated that, the said incident had occurred at the entrance of the Embarkation jetty. Even though the prosecution has a case that, the Embarkation jetty was a place where restricted entry is provided, Annexure-A3 does not contain any such document substantiating the prohibition of entry of any person particularly, restricting a Government servant who is on duty to accompany the officials of NORKA(Non-Resident Keralites Affairs) who were on an official visit to the islands. Therefore, there are no materials to conclude that the petitioner had trespassed into a place where he did not have the right to enter. Moreover, another requirement for attracting the offence of criminal trespass is that such an entry must be with an intention to commit an offence or to intimidate, insult or ``` Crl.M.C.No.1703 of 2021 9 ``` annoy any person in possession of the such property. It is evident from the records that, the petitioner had entered into the property as part of his duty, to accompany the officials of NORKA. Even if it is assumed for argument sake that some incident had occurred during such visit, there are no materials to indicate that ``` ``` the entry of the petitioner to the said premises was with the intention to commit offences. Therefore, in my view, the offence under Section 447 of IPC would not get attracted due to more than one reason; firstly, there are no documents ``` ``` placed on record indicating that the place of occurrence being the entrance of the Embarkation ``` ``` jetty was a place where the entry was prohibited for the petitioner. Secondly, even going by the prosecution case, no conclusion can be arrived at, to the effect that the entry of the ``` Crl.M.C.No.1703 of 2021 10 ``` petitioner was to commit an offence. ``` ``` 8.The next offence is under Section 353 of ``` ``` IPC. The specific case of the petitioner is that the offence under Section 353 IPC is alleged against the petitioner by predominantly relying upon the very same allegations which attracted the offence under Section 186 of IPC. Therefore, it was contended that Section 353 was incorporated only with the intention to camouflage by clubbing other cognizable offences which were actually not made out along with the offence under Section 186 of IPC. The learned counsel for the petitioner also places reliance on the observations made by the Hon’ble Supreme Court in Durgacharan Naik and Ors. V. State of ``` ``` Orissareported in AIR 1996 SC 1775. In paragraph 8 of the said judgment, it was ``` ``` observed as follows: ``` ``` “8. We have expressed the view that s. 195, Criminal Procedure Code does not bar the trial of ``` Crl.M.C.No.1703 of 2021 11 ``` an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of s. 195 cannot be evaded by resorting to devices or camouflage. For instance, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in s. 195, Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of s. 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it. On behalf of the appellants Mr. Garg suggested that the prosecution of the appellant under s. 353, Indian Penal Code was by way of evasion of the requirements of s. 195, Criminal Procedure Code. But we are satisfied that there is no substance in this argument and there is no camouflage or evasion in the present case.” ``` ``` On the other hand, the learned Standing Counsel ``` ``` also places reliance upon the observations made in paragraph 5 of the very same judgment, which is extracted below: ``` Crl.M.C.No.1703 of 2021 12 ``` “5. We pass on to consider the next contention of the appellants that the conviction of the appellants under s. 353, Indian Penal Code is illegal because there is a contravention of s. 195(1) of the Criminal Procedure Code which requires a complaint in writing by the process server or the A.S.I. It was submitted that the charge under s. 353, Indian Penal Code is based upon the same facts as the charge under s. 186, Indian Penal Code and no cognizance could be taken of the offence under s. 186, Indian Penal Code unless there was a complaint in writing as required by s. 195(1) of the Criminal Procedure Code. It was argued that the conviction under s. 353, Indian Penal code is tantamount, in the circumstances of this case, to a circumvention of the requirement of s. 195(1) of the Criminal Procedure Code and the conviction of the appellants under s. 353, Indian Penal Code by the High Court was, therefore, vitiated in law. We are unable to accept this argument as correct. It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that Sections 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. ``` ## Crl.M.C.No.1703 of 2021 13 ``` 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempts of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well-established that s. 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section. In Satis ChandraChakravartiv.RamDayalDe MANU/WB/0191/1920 : 24 C.W.N. 982 it was held by Full Bench of the Calcutta High Court that where the maker of a single statement is guilty of two distinct offences, one under s. 211, Indian Penal Code, which is an offence against public justice, and the other an offence under s. 499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal procedure Code has not provided for sanction of court for taking cognizance of that offence. It was said that the two offences being fundamentally distinct in nature, could be separately taken cognizance of. That they are distinct in character is patent from the fact that the former is made non-compoundable, while the latter remains compoundable; in one for the initiation of the proceedings the legislature requires the sanction of the court under s. 195, Criminal Procedure Code, while in the other, ``` ## Crl.M.C.No.1703 of 2021 14 ``` cognizance can be taken of the offence on the complaint of the person defamed. It is pointed out in the Full Bench case that where upon the facts the commission of several offences is disclosed some of which require sanction and other do not, it is open to the complainant to proceed in respect of those only which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of Sections 195 to 199 of the Code of Criminal procedure. The decision of the Calcutta case has been quoted with approval by this Court in Basir-ul-Huq and Others v. The State of West Bengal MANU/SC/0028/1953 : 1953CriLJ1232 in which it was held that if that allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the latter is not debarred by the provisions of s. 195, Criminal Procedure Code, from seeking redress for the offence committed against him.” ``` ``` It is true that, as per the principles laid down ``` ``` by the Hon’ble Supreme Court in the above ``` ``` judgment, if there are materials available ``` ``` indicating the commission of a distinct offence, the prosecution can be continued for the other offences for which there is no statutory ``` ``` prohibition as contemplated under Section 195 of ``` Crl.M.C.No.1703 of 2021 15 ``` Cr.PC. InDurgacharan Naik’s case (supra) the subject matter was a charge sheet which contained offences under Section 186 as well as 353 IPC which are the exact offences involved in this case as well. It was observed in the said decision that, if the materials available on record are indicating the commission of an offence under Section 353, the prosecution can be continued for the said offence even though prosecution for 186 is barred, for want of compliance of Section 195 of Cr.PC. On examining the facts of the case, which was the subject matter inDurgacharan Naik’s case (supra), it can be seen that it was a case where, besides the commission of an offence under section 186 of IPC, there were allegations of specific assault made against the Police Officer concerned by the accused persons by applying criminal force. However, when the facts of this ``` Crl.M.C.No.1703 of 2021 16 ``` case are carefully scrutinized, it can be seen that the only allegation against the petitioner is that, while the defacto complainant was on duty, he tried to snatch certain papers from his hand by questioning his authority to examine the permits of the mainlanders. In the deposition of PW1, which is produced as Annexure-A5(a), it is ``` ``` specifically deposed by the said witnesses that while snatching the papers from him, the petitioner pushed the hands of the said witness ``` ``` as well. Apart from the above, there is no allegation of any separate assault or ``` ``` application of criminal force. Therefore, from the specific statement given by the defacto ``` ``` complainant, it is evident that, the predominant ``` ``` act was to snatch the papers from the defacto ``` ``` complainant, while challenging the authority of the defacto complainant to examine the same and thereby obstructing the duties of the defacto ``` Crl.M.C.No.1703 of 2021 17 ``` complainant. Therefore, this is a case where the allegation would reveal the offence under Section 186 IPC and the incorporation of an offence under Section 353 IPC can only be treated as an attempt to evade the mandatory requirement for initiating prosecution as contemplated under Section 195 Cr.PC. As observed by the Hon’ble Supreme Court in ``` ``` Durgacharan Naik’s case(supra), the provisions of the requirement under Section 195 Cr.PC cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence, on the ground that the latter offence is a minor of the same character, or by ``` ``` describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section ``` Crl.M.C.No.1703 of 2021 18 ``` 195 of Cr.PC. It was also observed that merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195, prosecution for such an offence cannot be taken cognizance of by misdescribing it. On a careful examination of the factual allegations in this case as per the ``` ``` final report, it is evident that, this is a case ``` ``` in which an offence under Section 353 IPC was ``` ``` incorporated without any sufficient materials ``` ``` for the same and the basic offence that would be ``` ``` attracted from the nature of allegations is ``` ``` under Section 186 IPC alone. Since the ``` ``` cognizance of the aforesaid offence cannot be ``` ``` taken on the basis of a final report submitted ``` ``` by the police, the prosecution against the ``` ``` petitioner is bad in law. ``` ``` 9.Therefore, I am of the view that, this is a fit case in which the powers of this Court ``` ## Crl.M.C.No.1703 of 2021 19 ``` under Section 482 Cr.PC can be invoked. It is true that, the petitioner has approached this Court after the evidence is commenced. However, the illegality/irregularity pointed out by the petitioner is something which goes to the root ``` ``` of initiation of prosecution, being the one relating to the discrepancy in the order of taking cognizance. Hence, I am of the view that, ``` ``` the said contention can be taken up at any stage of proceedings. In other words, merely because ``` ``` of the reason that the trial has commenced, he ``` ``` is not precluded from raising such a contention. ``` ``` In the result, the Crl.MC is allowed and ``` ``` Annexure-A3 final report submitted in Crime ``` ``` No.7/2013 of Kavarathi Police Station and all ``` ``` further proceedings in C.C.No.23/2014 pending on ``` ``` the file of the Judicial First Class Magistrate Court, Andrott are hereby quashed. ``` ``` Sd/- ``` ``` pkk ``` ``` ZIYAD RAHMAN A.A, JUDGE ``` Crl.M.C.No.1703 of 2021 20 ## `APPENDIX OF CRL.MC 1703/2021` ``` PETITIONER’S ANNEXURES: ``` |`ANNEXURE-A1`|`TRUE COPY OF THE STATEMENT DATED 28/01/2013`| |---|---| ||`SUBMITTED BY THE POLICE CONSTABLE NAMED`| ||`JABIR.`| |`ANNEXURE-A2`|`TRUE COPY OF THE FIR IN CRIME NO. 7/2013`| ||`DATED 28/01/2013 OF KAVARATHI POLICE`| ||`STATION.`| |`ANNEXURE-A3`|`CERTIFIED COPY OF THE FINAL REPORT DATED`| ||`28/07/2013.`| |`ANNEXURE-A4`|`TRUE COPY OF THE 161 STATEMENT OF CW2.`| |`ANNEXURE -A4(A)`|`TRUE COPY OF THE 161 STATEMENT OF CW3.`| |`ANNEXURE -A4(B)`|`TRUE COPY OF THE 161 STATEMENT OF CW4.`| |`ANNEXURE -A4(C)`|`TRUE COPY OF THE 161 STATEMENT OF CW5.`| |`ANNEXURE-A5`|`TRUE COPY OF THE DEPOSITION GIVEN BY CW1`| ||`MARKED AS PW1.`| |`ANNEXURE -A5(A)`|`TRUE COPY OF THE DEPOSITION GIVEN BY CW2`| ||`MARKED AS PW2.`| |`ANNEXURE -A5(B)`|`TRUE COPY OF THE DEPOSITION GIVEN BY CW3`| ||`MARKED AS PW3.`| |`ANNEXURE -A5(C)`|`TRUE COPY OF THE DEPOSITION GIVEN BY CW5`| ||`MARKED AS PW4.`| |`ANNEXURE-A6`|`CERTIFIED COPY OF THE CRIME DETAILS FORM.`| |`ANNEXURE P7`|`TRUE COPY OF THE OFFICE ORDER ISSUED BY THE`| ||`ADMINISTRATION OF THE UNION TERRITORY OF`| ||`LAKSHADWEEP (SECRETARIAT) DATED 25.08.2008`| ||`GRANTING LEAVE TO THE PETITIONER WHILE`| ||`POSTED AS THE SALESMAN, SECRETARIAT CANTEEN`| ||`ATTACHED TO THE PROTOCOL SECTION.`| |`ANNEXURE P8`|`THE TRUE COPY OF THE OFFICE ORDER DATED`| ||`01.07.2009 F.NO.11/12/2003-CPO (VOL.II)`| ||`DIRECTING THE PETITIONER TO ATTEND THE DUTY`| ||`IN THE RECEPTION COUNTER, SECRETARIAT`| ||`ISSUED BY THE CHIEF PROTOCOL OFFICER,`| ||`ADMINISTRATION OF THE UNION TERRITORY OF`| ||`LAKSHADWEEP (PROTOCOL) TO THE PETITIONER.`| |`ANNEXURE P9`|`THE TRUE COPY OF THE OFFICE ORDER DATED`| ||`29.11.2013, ISSUED BY THE DIRECTOR GENERAL`| ||`ADMINISTRATION & PROTOCOL, ADMINISTRATION`| ||`OF THE UNION TERRITORY OF LAKSHADWEEP`| ||`(SECRETARIAT) TO THE PETITIONER.`|