P G Sujatha v. State of Kerala and Another

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 CRL.MC NO. 6771 OF 2017 ``` ``` (AGAINST THE PROCEEDINGS IN CC 2209/2016 OF ADDITIONAL CHIEF ``` ``` JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM) ``` ``` (CRIME NO.2181 OF 2016 OF MEDICAL COLLEGE POLICE STATION, ``` ## **`THIRUVANANTHAPURAM)`** ## **`PETITIONER/ACCUSED:`** ``` P G SUJATHA, AGED 51 YEARS D/O. C.P. GOPINATHAN PILLAI,1ST GRADE DRAUGHTSMAN, QUALITY CONTROL DIVISION, KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. ``` ``` BY ADV.SRI.ABRAHAM MATHAN ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.`** - **`2 THE STATION HOUSE OFFICER`** ``` MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM-695001. ``` ``` BY PUBLIC PROSECUTOR SMT.PUSHAPALATHA M K ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ``` ``` 10.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.6771 of 2017 2 ## **ORDER** The petitioner, the sole accused in C.C.No.No.2209 of 2016 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram, seeks to quash the FIR and final report in Crime No.2181 of 2016 of the Medical College Police Station, Thiruvananthapuram. She faces charge under Section 353 of the Indian Penal Code. 2. Heard Sri.Abraham Mathan, the learned counsel for the petitioner and the learned Public Prosecutor. 3. The prosecution case is that on 8.12.2016, the petitioner used criminal force against the members of the Pink Police, consisting of woman Police Officials, while they were discharging their official duties, intending to prevent them from discharging their duties as public servants. 4. Charge Witness No.1, Smt.Shami Beegum, a woman Police Constable attached to the Pink Police team, submitted AnnexureB FIS before the Medical College Police on 9.12.2016 alleging the following:- Crl.M.C.No.6771 of 2017 3 The witness was discharging duties as ASI in the Vanitha Cell. She was the Commander of Pink Patrol-III on 8.12.2016. Their official duties commence at 8 a.m. and end at 8 p.m. in the night. She was on patrol duty along with other woman Police Officials at Pattom. Around 6.30 p.m., they noticed a woman (the petitioner) collecting the whereabouts of certain girls standing there. The girls complained to the Police. The petitioner was taken to the Medical College Police Station. The parents of the girls, the whereabouts of whom were collected by the petitioner, came to the Police Station and lodged a complaint. The Inspector of Police talked to them. At that time, the petitioner rushed to the road, laid herself on the public road and started crying. The acts of the petitioner resulted in blocking the traffic on the public road. She attempted to assault the woman Police Officials who prevented her. The petitioner prevented the woman Police Officials, including charge witness No.1, from discharging their official duties. 5. The case of the petitioner is as follows:- The petitioner was employed as a 1[st] Grade Draughtsman in the Quality Control Division of the Kerala Water Authority, Thiruvananthapuram. On 08.12.2016, while she was walking through the main road in Thiruvananthapuram City, she was intercepted by Crl.M.C.No.6771 of 2017 4 certain known anti-social elements, and when she resisted, they attempted to molest her and caused harm to her. She immediately intimated the police over the phone. A team of Pink Police, led by witness No.1, came to the spot and escorted the petitioner safely to the Medical College Police Station at 6.30 p.m. After due enquiries, the petitioner was let off. However, at the Police Station, some of the woman Police Officials who escorted her showered abusive words towards her, which she recorded on her mobile phone. On realising that the petitioner had recorded the conversation on the mobile phone, a woman Police Constable snatched away her mobile phone, and after forcibly seizing the mobile phone, the petitioner was directed to sit in a vehicle used by the Pink Squad. The attempt of the women Police team was to kidnap the petitioner and take her to some place. Sensing this, she got down from the vehicle at a traffic point. At that time, some of the women Police Personnel, including charge witness No.1, used force against her. Her handbag and phone were forcibly taken into possession, and she was assaulted on the public road. She was made to remain in the Police Station till late at night, and she could not even telephone her relatives as the phone was forcibly taken away from her. On the next day, the matter was reported to the Director General of Crl.M.C.No.6771 of 2017 5 Police by the petitioner by filing a complaint. On the same day itself, she had filed a complaint to the SHO, Medical College Police Station, but no action was taken on the complaint submitted by the petitioner; instead, a first information report was registered in relation to the incidents on 8.12.2016 and on 9.12.2016 alleging an offence under Section 353 of IPC against the petitioner. The Police thereafter submitted final report alleging offence punishable under Section 353 of IPC against the petitioner. 6. The learned counsel for the petitioner submitted that even if all the allegations in the FIS are accepted, no offence under Section 353 of IPC will lie as the Police Officers concerned were not on duty at the time when the incident allegedly occurred. The learned counsel further contended that the registration of FIR and submission of the final report is part of a counterblast to the incident in which the petitioner was assaulted and harassed by the woman Police Officials. The learned counsel relied on Annexure-E receipt to show that on 8.12.2016 itself, the petitioner had filed a complaint against the woman Police Officials before the Medical College Police Station, and thereafter, on the subsequent day, she complained to the DGP. It was after that the police registered the FIR against the petitioner as Crl.M.C.No.6771 of 2017 6 an afterthought to save the woman Police Officials who harassed the petitioner, it is submitted. 7. Annexure-B is the FIR registered against the petitioner. The time of occurrence is noted as 20.10 hrs. The information which forms the foundation of the FIR was given only on 9.12.2016 at 02.06 hrs. In Annexure-C final report, the time of occurrence is stated as 10.10. p.m. If both these times of occurrence are taken at face value, charge witness No.1 and the other official witnesses were not on official duty. Charge witness No.1, in her statement, specifically stated that their duty time commences at 8 a.m. and ends at 8 p.m. On the relevant day also, according to charge witness No.1, the duty time of the woman Police Officials was 8 a.m. to 8 p.m. The prosecution has not produced any material, in this case, to establish that the woman Police Officials were on duty after 8 p.m. on 8.12.2016. 8. Section 353 of IPC says that whoever assaults or uses criminal force on any person being a public servant in the execution of his duty as a public servant is punishable. In order to attract Section 353 of the IPC, it must be proved that the person who was assaulted or against whom criminal force was used was a public servant. Simply because a Police Officer was in uniform at the time of the alleged Crl.M.C.No.6771 of 2017 7 incident, it cannot be concluded that she was in lawful discharge of her official duty as a public servant. (vide: **Jaidas** v. **State of Kerala and Another** (2017(1) KHC 669), **Mohammed Kutty** v. **State of Kerala** (2004 KHC 57) and **Rilgin V. George and Another v. State of Kerala and Another** (2021 (4) KHC 223). The intent to prevent or deter the public servant from discharging duty is an essential ingredient of the offence under Section 353 of IPC. In the present case, the prosecution has not pleaded that the petitioner intentionally committed any act to prevent the discharge of official duty by the women Police Officials. 9. The specific case of the petitioner is that the woman Police Officials involved in this case abused her without any reason. It is the case of the petitioner that on getting a call from her alleging that she was attempted to be molested by some persons, she was escorted to the Police Station. There are materials to show that the petitioner, between 6.35 p.m. and 6.45 p.m. (Annexure-B), called the Pink Police over the phone. Annexure-E makes it clear that the petitioner, on 8.12.2016 itself, had filed a complaint before the Medical College Police and on the subsequent day, she complained to the DGP regarding the harassment suffered by her at the hands of the woman Police Officials. 10. The materials produced by the accused are sufficient to conclude that the defence of the petitioner is based on sound, Crl.M.C.No.6771 of 2017 8 reasonable and indubitable facts. Those materials, in my view, would rule out the assertions contained in the charge levelled against her. It is trite that the materials relied on by the accused are of sterling and impeccable quality. The High Court, in exercising its power under Section 482 Cr.P.C., can quash such criminal proceedings relying on those materials. It is useful to refer to the observations of the Apex Court in **Rajiv Thapar** v. **Madan Lal Kapoor [(2013) 3 SCC 330],** which read thus:- “To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.” ## 11. On the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 Cr.P.C., the Apex Court in **State of Haryana and Others** v. Crl.M.C.No.6771 of 2017 9 ## **Bhajan Lal and Others (1992 Supp. (1) 335)** held thus:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which Crl.M.C.No.6771 of 2017 10 no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” The present case is fully covered by categories (1), (3) and (7) as enumerated in **Bhajan Lal** case. I am of the view that, in the present case, the criminal proceedings consequent to the final report in C.C.No.2209 of 2016 are liable to be quashed. Resultantly, all further proceedings in C.C.No.2209 of 2016 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram stand quashed. The Crl.M.C. is allowed as above. Sd/- **K.BABU Judge** TKS Crl.M.C.No.6771 of 2017 11 ## **`APPENDIX OF CRL.MC 6771/2017`** ## **`PETITIONER’S ANNEXURES`** ``` ANNEXURE ATRUE COPY OF THE PETITION DATED 09.12.2016 SUBMITTED BY THE PETITIONER BEFORE THE CHIEF MINISTER OF KERALA. ANNEXURE BTRUE COPY OF THE FIR NO.2181 OF 2016 REGISTERED BY THE MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM. ANNEXURE CTRUE COPY OF THE FINAL REPORT SUBMITTED BY THE POLICE ON 10.02.2017. ``` ``` ANNEXURE DTRUE EXTRACT OF THE CALLS RECORDED BY THE PETITIONER. ANNEXURE ETRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 08.12.2016 ISSUED BY THE MEDICAL COLLEGE POLICE. ``` TKS