PRADEEP and M.V.NIKESH KUMAR v. BABU and S.I. OF POLICE, MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **MONDAY, THE 15TH DAY OF DECEMBER 2014 / 24TH AGRAHAYANA, 1936** **Crl.MC.No. 3913 of 2011** **CRIME NO. 1186/2011 OF MECICAL COLLEGE POLICE STATION ,** ## **THIRUVANANDAPURAM DISTRICT** ## **PETITIONER(S)/ACCUSED NO.1 & 2** **-----------------------------** - **1 PRADEEP, AGED 39, S/O.CHELLAPPAN PILLAI,** **REPORTER NEWS CHANNEL, PRESS CLUB,,** **THIRUVANANTHAPURAM- PIN 695 001.** - **2 M.V.NIKESH KUMAR, AGED 38** **S/O M.V.RAGHAVAN, CEO, REPORTER NEWS CHANNEL,** **HMT COLOMY, KALAMASSERY 683 503.** **BY ADV.SRI.C.P.UDAYABHANU** ## **RESPONDENT(S)/COMPLAINANT:** **-------------------------** **1. BABU, AGED 45, S/O.GOVINDAN PRINCY BHAVAN, PAZHAVILLA, POOVAR PO,** - **THIRUVANANTHAPURAM.-695001** **2. S.I. OF POLICE, MEDICAL COLLEGE POLICE STATION,THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 3913 of 2011** ## **APPENDIX** **PETITIONER'S ANNEXURES: ----------------------** |**ANNEXURE I:**|**CERTIFIED COPY OF THE FIR IN CRIME 1186/2011 OF MEDICAL**| |---|---| ||**COLLEGE POLICE STATION, THIRUVANANTHAPURAM**| |**ANNEXIRE II:**|**TRUE COPY OF THE COMPLAINT FILED BY RI**| |**ANNEXURE III:**|**REQUEST OF ADGP (PRISONS) DATED 18.5.2011 SEEKING**| ||**PERMISSION TO USE MOBILE PHONE**| |**ANNEXURE IV:**|**REPORT SUBMITTED BY ADGP (PRISONS) DATED 4.10.2011 TO THE**| ||**GOVERNMENT.**| |**RESPONDENTS ANNEXURES:**<br>**NIL.**|| |**---------------------**|| ## **//TRUE COPY//** **P.A. TO JUDGE.** **dlk/21/7/18** ## **C.T.RAVIKUMAR, J** ## **--------------------------------------Crl.M.C. No.3913 of 2011** ## **----------------------------------------** Dated this the 15[th] day of December, 2014 ## **ORDER** The petitioners are the accused in Crime No.1186/2011 of Medical College Police Station, Thiruvananthapuram. They filed the captioned criminal miscellaneous case seeking quashment of Annexure-I FIR and all further proceedings pursuant thereto. The said crime was registered against them on allegation of having committed the offence under section 86 of the Kerala Prisons and Correctional Services Management Act, 2010 (for short ' the Act'). 2. There can be no doubt that quashment of FIR or complaint in exercise of the inherent power under section 482 of the Code of Criminal Procedure has to be limited to extremely exceptional case and that position is settled in the decision in **State of Haryana v. Bhajan Lal** reported in AIR 1992 SC 604. The petitioners seek for its exercise virtually contending that the case on hand falls under that category of cases. A succinct narration of the facts leading to the registration of the aforesaid crime and the allegations in the FIR is inevitable for a proper disposal of this case. 3. The allegation in Annexure II complaint filed by the **Crl.M.C.NO. 3913 of 2011** 2 first respondent before the court of the Additional Chief Judicial Magistrate, Thiruvananthapuram is that the first accused had a telephonic conversation with the convict Mr.R.Balakrishna Pillai who was then taken to KIMS Hospital, Kumarapuram while serving the sentence in CC No.1/1991 of Edamalayar Special Court, Ernakulam. The case is that he made the said Balakrishna Pillai to have a telephonic conversation knowing fully that he is a convict and undergoing sentence of imprisonment and therefore could not legally be contacted over phone and he was contravening the provisions of prison rules. He abets the said offence, is the other accusation. The further allegation is that, the said conversation was subsequently telecast in the 'Reporter' T V Channel of which the second petitioner/ the second accused is the Chief Executive Officer and Chief Editor. The gist of the accusation is that by such actions the first and second accused/petitioners have committed an offence punishable under section 86 of the Act. The said complaint was then forwarded for investigation by the learned Chief Judicial Magistrate under section 156(3) Cr.P.c and on its receipt crime No.1186/2011 was registered at Medical College Police Station. Annexure I is the FIR registered in the said crime. **Crl.M.C.NO. 3913 of 2011** 3 4. I have heard the learned counsel for the petitioners as also the learned Public Prosecutor. 5. Though notice in the proceedings was sent and received by the first respondent herein, as early as on 20.9.2013 he had not chosen to enter appearance and to resist the case. In the said circumstances, I am inclined to proceed with the consideration of the captioned criminal miscellaneous case. 6. For an appropriate consideration of the contentions and the issues involved in this case it is profitable to refer to section 86 of the Act and it reads thus:- “ **86. Punishment in certain cases** .- (1) Whoever, in contravention of any provisions of the Act, brings or removes or attempts by any means whatever to bring or remove, into or from any prison, or supplies or attempts to supply to any prisoner outside the limits of a prison, any prohibited article, and any officer or member of staff of a prison who, contrary to any rule, knowingly suffers any such article to be brought into or removed from any prison, to be possessed by any prisoner, or to be supplied to any prisoner outside the limits of a prison, and whoever, contrary to any rule, communicates or attempts to communicate with any prisoner, and whoever abets any offence made punishable by this section, shall, on conviction before a Magistrate, be liable to imprisonment for a term not exceeding twelve months, or to fine not exceeding ten thousand rupees or with both. **Crl.M.C.NO. 3913 of 2011** 4 (2) Whoever, being a prisoner or a visitor, or a prison official, is found in possession of an electronic communication or other equipment inside the prison against the provisions of the Act or rules, or found to be manipulating, damaging or destroying any equipment, electronic or otherwise, in the prison, shall on conviction, before a Magistrate, be liable to imprisonment for a term not exceeding two years or fine not exceeding ten thousand rupees or with both. (3) The offence mentioned in sub-sections (1) and (2) above, shall be cognizable and non-bailable.” 7. A bare perusal of its caption would reveal that it is a penal provision. But the question is whether it could be construed as a penal provision as regards the specific averment raised against the petitioner which would fall under the last limbs of section 86(1) of the Act viz., abetment. A scanning of section 86 would reveal that bringing or removing or attempting by any means whatsoever to bring or remove into or from any prisoner or supplies or attempts to supply to any prisoner outside the limits of a prison any prohibited article would attract the penal provision thereunder. Apart from the same another instance could also fall under section 86 entailing a punishment where any one contravenes any rule any one communicates or attempts to communicate with any prisoner. The other situation is abetment of that offence. **Crl.M.C.NO. 3913 of 2011** 5 8. A scanning of Annexure II complaint would reveal that there is absolute absence of any accusation or allegations against the petitioners regarding commission of an offence falling under the first and second limbs of section 86 of the Act and the specific allegation against them is that they had contravened the rules relating communications with the prisoner Balakrishna Pillai and abetted him for the offence. It was the said complaint carrying the allegation that was forwarded for investigation under section 156(3) and on its receipt Annexure I FIR was registered. In the context of the contentions it is also relevant to refer to Annexure I FIR. “^p]¤ \ŸU sUZ]\ÿO RWLºV SlL¦ yUnLxeU kLa]RsæÐ j]poU - j]sv]s]q]R¨ Bpf]jV v]qOhVioLp] 1 **-** U 2 U Nkf]W¥ YPdLSsL\j ja¾] 1 **-** U Nkf] 2-U Nkf]pORa Ar]SvLaOU yÚfS¾LaOU WPa] fR¢r RoLRRm¤ SlLe]¤ j]ÐOU CaospL¡ Au]of] SWy]¤ mzO@ yONk}U SWLaf]pORa w]ƒàV v]SipoLp] f]qOvjÍkOqU Ry¢Na¤ ^p]s]¤ Wu]pRv WaO¾ wLq}q]W Ay~LyVg|vOU SqLYvOU oPsU v]hYVi \]W]ÃpV¨Lp] SWqt y¡¨Lr]R¢r AjOvLh NkWLqU f]qOvjÍkOqU WOoqkOq¾Oç W]UyV BBwOkNf]p]¤ \]W]fVyp]¤ Wu]´OvqOÐ oO¢ oNÍ] B¡. mLsWQxVe k]çRp 29.09.2011 RRvW] 5 oe]SpLaOWPa] a]pLR£ RoLRRm¤ SlLe]Ss¨V - v]t]\ÿV yUnLxeU R\áL¢ SNkq]Õ]¨pOU a] yUnLxeU 1 **-** U 2 U Nkf]W¥ - WPŸLp] BSsL\]\ÿV r]¨L¡cV R\pVfV 2 U Nkf] Ic]ãrLp] S^Ls] SjL¨OÐ j|PyV \Ljs]¤ yUSNkƒeU R\pVfOU So¤ vWOÕV NkWLqoOç WOãU R\pVf]q]¨OÐO IÐOçfV.” **Crl.M.C.NO. 3913 of 2011** 6 9. A scrutiny of section 86 would reveal that communicating or attempting to communicate with any prisoner by itself would not be an offence punishable under section 86 and this position is evident from the expression 'contrary to any rule employed in the last limb of section 86(1) 'in between the words 'whoever communicates or attempt to communicate with any prisoner'. Thus it is evident that communicating or attempting to communicate with any prisoner in order to be punishable under section 85(1) should be contrary to any rule. The contention of the learned counsel for the petitioner in this case is that in exercise of the powers under rule 99 which deals with the powers of Government to make rules no rule making communication or attempting to communicate with any prisoner punishable under section 86 was framed on as on 29.9.2011. It is the precise contention that in the absence of any such rule making communicating or attempting to communicate with a prisoner framed under the Act it cannot be said that some one has committed an offence punishable under section 86(1) for communicating or attempting to communicate with any prisoner contrary to any rule. The learned Public Prosecutor contended that invoking the powers under section 99 of the Act rules have been framed ( 2014-Rs SWqt **Crl.M.C.NO. 3913 of 2011** 7 Nk]yeOWtOU yUwOhVi}Wqe yL¢oL¡YVY}Wqe Syvj°tOU (j]¡vÿzeU) BWVãV) (Kerala Prisons and Correctional Services (Management) Rules, 2014). A copy of the said rule was furnished for perusal it would reveal that it was published in the Kerala Extraordinary Gazette No.1316 dated 23.5.2014 (G.O.(P) No.89/14/Home) 10. It is evident that the said rule was framed invoking the rule making power under section 99 of the Act. It is to be noted that in this case the allegation against the petitioners is one of commission of an offence under section 86 of the Act. As noticed hereinbefore, in view of the expression contrary to rules employed between the words 'any person and communicate or attempt to communicate' in section 86 itself would reveal that communicating or attempting to communicate by any person with a prisoner would become punishable under section 86 only if it contravenes any of the provisions of any rule framed under the Act. There cannot be any doubt with respect to the fact that to hold a person for a commission of offence that particular act should have been made an offence under any penal provision. Evidently, it is only communicating or attempting to communicate with a prisoner in contravention of any rule there would constitute an offence. At the same time, the admitted position **Crl.M.C.NO. 3913 of 2011** 8 is that as on the date of the alleged offence no rules were framed in that regard invoking the rule making power under section 99 of the Act. Though the learned Public Prosecutor contented that invoking the rule making power under section 99 the Kerala Prisons and Correctional Services (Management) Rules have been framed it is evident that such rules were framed only in the year 2014 and it was published in the Kerala extraordinary Gazette only on 23.5.2014. Thus, the indisputable position is that as on 29.9.2011 no rule was in existence prohibiting such communication or rather making a communication or attempt to communicate with a prisoner punishable under section 86 framed under Section 99 of the Act. Any penal provision has to be construed strictly and if an action which do not constitute an offence at the time of commission cannot be made punishable in view of the subsequent change in law or subsequent introduction of any rule. The learned Public Prosecutor submitted that specific provisions have been introduced and incorporated in the rules framed in 2014. There can be no doubt, no provision under the 2014 Rules can make a previous action allegedly committed prior to its coming in to force, punishable with the aid of Section 86 of the Act. No other set of rules or any provision enabling conviction for **Crl.M.C.NO. 3913 of 2011** 9 commission of an offence, based on the aforesaid allegations, has been brought to my notice. In the said context it is also relevant to refer to section 99 which enumerates the subject upon which rules could be framed invoking the power thereunder. It is evident from section 99 no reference has been made about section 86 in that section. At the same time, clause (xliv) of section 99 provides that the Government can frame rules on any other matter which is to be, or may be, prescribed. Even by a microscopic scanning of the provisions under the rules I could not get at hand any provisions touching the issue which would make a previous act punishable after its coming into force. Even if there is one it cannot hold good in the light of the settled position of law. The learned Government Pleader attempted to bring the actions punishable for violation of rule 144B and it reads thus:- CsWVSNaLe]WV DkWqe°tORa j]po v]qOhVioLp DkSpLYU Cv fapOWpOU WOã¨LqRj kã] r]SÕL¡ŸV R\áOWpOU R\áOW. 11. I do not know how, it is relevant in the contextual situation. Whatever that be, in view of the provisions under section 86 and in the absence of any provision or any rules making communicating or attempting to communicate with the prisoner **Crl.M.C.NO. 3913 of 2011** 10 punishable under section 86 at the time of the alleged action the registration of the FIR can not have any significance and any volume of investigation conducted in that matter would not and could not culminate in an accusation of commission of an offence as alleged against the petitioners. There is not even a remote chance for conviction in the said circumstances because to say that a particular person has contravened under Section 86, rules must have been framed in invocation of the rule making power under the Act. In this case no rule making such an action punishable under section 86 was brought to my notice. I am at a loss to under what was the violation, rather offence that is attributable in the circumstances. In the said circumstances, I have no hesitation to hold that permitting continuation of investigation based on Annexure II would be a wasteful exercise and ultimately I am certain that it would lead to abuse of process of court. When the allegations raised in Annexure II complaint are short of constituting an offence punishable under section 86 permitting continuance of investigation based on the same would definitely result in unnecessary harassment of the persons concerned. In such circumstances, it will only be in the interest of justice to invoke the inherent power under section 482 Cr.P.C to bring **Crl.M.C.NO. 3913 of 2011** 11 a termination of such proceedings. 12. The learned Public prosecutor contended that the inherent power of High Court should not be exercise to stifle the prosecution. In the light of the decision of the Hon'ble Apex court in **State of A P v Golconda Linga Swamy and another** reported in 2004(6) SCC 522. True that the Hon'ble Apex Court held though the inherent jurisdiction is wide it has to be exercised carefully and with caution and only when such exercise is justified by the tests specifically laid down in section 482. At the same time, it is evident that the said power is exercisable _ex debito justitiae_ to prevent abuse of process of court though it should not be exercised to stifle legitimate prosecution. A prosecution could be said to be legitimate only if there is any legal basis for the same. When a complaint has been filed alleging commission of a particular action as an offence punishable under a particular provision but, on a scanning of the same it is revealed that no such provision making that particular alleged Act punishable is in existence the very prosecution cannot be said to be a legitimate prosecution launched with bonafides. In such circumstances, I am of the view that powers under section 482 is to be exercised ex debito justitiae to deal real and substantial justice. If **Crl.M.C.NO. 3913 of 2011** 12 the investigation based on Annexure II could only result in an unnecessary harassment to the accused and there is absolute absence of any chance at all to bring the conviction interest of justice demands termination of such proceedings. A perusal of Annexure II complaint would reveal that the sole prayer therein is for forwarding the complaint for investigation under 156 (3) Cr.P.C. The learned counsel for the petitioners submitted that the petition for merely forwarding the matter under section 156(3) for investigation is not maintainable. The said submission is founded on a decision of this Court in **Arul V Nair v State of Kerala** reported in 2007(4) KLT 921. After a careful consideration of the provisions under section 156 Cr.P.C this Court held in the said decision that section 156(3) did not contemplate any application for forwarding to police for investigation under section 156(3) Cr.P.C though such discretion lies with the magistrate and in such circumstances no application solely seeking forwarding of a complaint under section 156(3) for investigation would not be maintainable. True that, in this case the learned magistrate thought it fit to forward Annexure II complaint for investigation under section 156(3) Cr.P.C and the second respondent on its receipt registered crime No. 1186/2011 of Medical College police station against the **Crl.M.C.NO. 3913 of 2011** 13 petitioners alleging commission of offences under section 86 of the Kerala Prisons and Correctional Services (Management) Act, 2010. In view of the discussion as made hereinbefore in the light of the allegations contained in Annexure II complaint and in view of the provisions under section 86 of the Act and in the admitted position of non existence of any rules making the said action punishable made invoking the power under section 99 of the Act on the relevant date. I have no hesitation to hold that permitting continuation of the proceedings and the very registration itself are liable to be interfered with. It is declared that no investigation based on crime No.1186/2001 against the petitioners for commission of an offence under section 86 could be proceeded with. In such circumstances, Annexure I FIR in crime No.1186/2011 of Medical College police station and all further proceedings pursuant thereto are quashed. The Criminal Miscellaneous Case is allowed. Sd/- ## **C.T.RAVIKUMAR,JUDGE.** dlk