P. N. Shantakumari Amma v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 29[TH] DAY OF JUNE 2022 / 8TH ASHADHA, 1944 CRL.MC NO. 5196 OF 2019 CRIME NO.523/2018 OF KASABA POLICE STATION [TO QUASH PROCEEDINGS IN ST 79/2019 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOZHIKODE] ## PETITIONER/3RD ACCUSED: P.N.SHANTAKUMARI AMMA, AGED 75 YEARS W/O.LATE K.KRISHNANKUTTY MENON, KRISHNA HOUSE, P.O.KARANTHUR, KOZHIKODE- 673571. BY ADVS. S.K.PREMRAJ SRI.S.K.KRISHNAKUMAR SRI.E.G.GORDEN MRS.S.SREELAKSHMY ## - RESPONDENT/DE JURE COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682018. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.04.2022, THE COURT ON 29.06.2022 PASSED THE FOLLOWING: CRL.MC No.5196 of 2019 2 ## O R D E R The petitioner is the 3[rd] accused in ST No.79/2019 on the file of the Judicial First Class Magistrate Court-III, Kozhikode. The aforesaid case arises from Crime No.523/2018 of Kasba Police Station, Kozhikode, for the offences punishable under Sections 143,145,147 and 283 r/w. Section 149 of the Indian Penal Code (IPC). 2. The prosecution case is that on 10.10.2018, at about 11 a.m., the petitioner addressed a gathering at the roadside at Palayam junction, Kozhikode, and also held a protest march against the implementation of the verdict of the Hon’ble Supreme Court relating to entry of women in Sabarimala temple. It is alleged that, as part of the protest, the petitioner and the other named accused along with 800 unidentified people raised slogans and sat on the public road at Palayam junction, causing obstruction to the vehicles and local people. Annexure-A1 is the F.I.R, and Annexure-A2 is the final report submitted by the CRL.MC No.5196 of 2019 3 police. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure-A2 final report, which is now pending as S.T.No.79/2019 before the Judicial First Class Magistrate Court- III, Kozhikode. 3. Heard Sri. S.K.Premraj, the learned counsel for the petitioner, Sri.Sudheer Gopalakrishnan, the learned Public Prosecutor. 4. The main contention put forward by the learned counsel for the petitioner is that, none of the offences alleged against the petitioner are attracted. It is pointed out that, one of the primary offences is under Section 283 of the Indian Penal Code, which deals with the obstruction caused to the public way or public line of navigation. In this case, it is pointed out that, in the list of witnesses, all the persons cited by the prosecution to prove the incident are official witnesses. Even though a public way has been allegedly obstructed by the petitioner and the other accused persons, no one among the public or users of the road were made CRL.MC No.5196 of 2019 4 as witness and according to the learned counsel for the petitioner, this by itself would reveal the false nature of the allegations. It is further contended that, the petitioner herein is implicated on the strength of Section 149 of IPC and according to him, the said offence would get attracted only if the assembly of people by itself was intended for committing an offence. It is pointed out that, in this case, even going by the allegations, the petitioner had participated in a protest march. Conducting a protest march by itself cannot be treated as an offence. In such circumstances, it is pointed out that, none of the offences alleged against the petitioner are made out from the materials available on record. 5. On perusal of the records, I am of the view that, the contentions put forward by the learned counsel for the petitioner need not be taken into consideration at this stage before this Court. This is particularly because, Section 258 Cr.PC provides a remedy to a person accused of a summons case to CRL.MC No.5196 of 2019 5 approach the Magistrate concerned to stop the proceedings in certain circumstances. The petitioner can take up all the contentions raised in the Crl.M.C, before the learned Magistrate by filing an appropriate petition for invoking Section 258 Cr.PC. The learned counsel points out that, the petitioner is an aged person, and she is having some physical difficulty in appearing before the learned Magistrate in person. It is also discernible from the records that, the petitioner was a Judicial officer who retired from service as a selection grade District Judge after completing 26 years of service. In such circumstances, the learned counsel for the petitioner seeks personal exemption from appearing before the learned Magistrate and to move an application under Section 258 Cr.PC through her lawyer. 6. In Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. and Others [(2001)7 SCC 401] , the Hon’ble Supreme Court specifically laid down the principles and the circumstances under which an CRL.MC No.5196 of 2019 6 accused can appear through his counsel before the Magistrate. In paragraph 17 of the said judgment, it was observed as follows: _“17. Thus, in appropriate cases the Magistrate can allow an accused to make even the first appearance through a Counsel. The Magistrate is empowered to record the plea of the accused even when his Counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. S.317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a Counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a Counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceeding including examination of the witnesses.”_ **==> picture [429 x 13] intentionally omitted <==** aforesaid observations, while relegating the CRL.MC No.5196 of 2019 7 petitioner to the learned Magistrate for filing an application under Section 258 Cr.PC, the exemption of the petitioner from personal appearance before the learned Magistrate can be allowed. In such circumstances, this Crl.M.C. is disposed of granting liberty to the petitioner to submit an application before the learned Magistrate under Section 258 Cr.PC for stopping the proceedings in the above case as against the petitioner. It is made clear that, it shall be open for the petitioner to submit such an application through her counsel without appearing in person. Upon such an application being submitted before the learned Magistrate through her counsel, the same shall be taken up and appropriate orders thereon shall be passed by the learned Magistrate, in accordance with law as expeditiously as possible. ## Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.5196 of 2019 8 ## APPENDIX OF CRL.MC 5196/2019 PETITIONER’S ANNEXURES: ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO.523 OF 2018 OF THE KASABA POLICE STATION, KOZHIKODE. ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.523 OF 2018 OF THE KASABA POLICE STATION, KOZHIKODE. ANNEXURE A3 MEDICAL CERTIFICATE DATED 27.03.2019 ISSUED TO THE PETITIONER FROM KARUNNYA HOSPITAL. //TRUE COPY// SD/- PS TO JUDGE