PRASANTH KUMAR v. STATE OF KERALA

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943 CRL.MC NO. 3732 OF 2018 [C.P.NO.39/2017 ON THE FILE OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-1, CHENGANNUR] ## PETITIONER/ACCUSED: PRASANTH KUMAR AGED 33 YEARS, S/O.SUKUMARAN, PRASANTH BHAVANAM, CHENNITHALA, ALAPPUZHA. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.V.VINAY ## RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031, (CRIME NO.637/2012 OF MANNAR POLICE STATION, ALAPPUZHA DISTRICT) ## OTHER PRESENT: R1 BY SRI.SUDHEER GOPALAKRISHNAN, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 13.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC No.3732 of 2018 2 ## O R D E R The petitioner is the sole accused in C.P.No.39/2017 on the file of the Judicial First Class Magistrate Court-1, Chengannur. The aforesaid case arises from Crime No.637/2012 of Mannar Police Station which was registered against the petitioners for the offences punishable under Sections 506(i) of the Indian Penal Code (IPC) r/w. Section 180(d) and (e) of the Kerala Police Act. 2. The prosecution case is as follows: The aforesaid crime was registered on the basis of a complaint submitted by one Rajeevan, who was the Headmaster of Mahatma High School for Boys, Chennithala. On the occasion of Diamond Jubilee Celebrations of the school, a meeting was organized on 24.8.2012 in which the Chief Minister was supposed to attend the function. At about 4 p.m. on the said day, the petitioner herein propagated that a telephone call was received to the effect that there is a bomb placed CRL.MC No.3732 of 2018 3 in the venue and it is likely to explode immediately. Upon completing the investigation, Annexure-II final report was submitted. The offences alleged in Annexure- II final report were under Sections 124A and 506(i) of the IPC r/w. Sections 118(d) and 118(e) of the Kerala Police Act. This Crl.M.C. is filed by the petitioner seeking to quash the aforesaid proceedings. 3. Heard Sri. Vinay V., the learned counsel for the petitioner and Sri. Aravind V. Mathew, the learned Public Prosecutor. 4. The specific case put forward by the learned counsel for the petitioner is that, even if the entire allegations contained in Annexure-AII charge sheet are taken into consideration, no offence is made out. It is also pointed out that in order to initiate prosecution under Section 124A of the IPC, it is mandatory to obtain sanction as contemplated under Section 196 of the Code of Criminal Procedure (Cr.PC) and in this case, no such sanction has been obtained. He also CRL.MC No.3732 of 2018 4 raised a contention that, the allegation contained in Annexure-II would not attract the offence under Section 506 as well. With regard to Section 118(d) of the Kerala Police Act, it is contended that, by virtue of the judgment in Shreya Singhal v. Union of India [2015(2)KLT 1] , the aforesaid provision stands declared as unconstitutional. With regard to Section 118(e), it is the case of the learned counsel for the petitioner that, in the absence of any positive action on the part of the petitioner to cause danger to public or failure in public safety, the offence will not get attracted. 5. On the other hand, the learned Public Prosecutor seriously opposes the said contention. 6. The question that arises herein is as to whether the offences alleged against the petitioner are attracted or as to whether the act of taking cognizance by the learned Magistrate is proper or not. 7. With regard to the offence under Section 124A of the IPC, I find some force put forward by the CRL.MC No.3732 of 2018 5 learned counsel for the petitioner. Section 196 of the Cr.PC reads as follows: _“ 196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.- (1) No Court shall take cognizance of-_ _(a) any offence punishable under Chapter VI or under section 153A, section 295A or sub section (1) of section 505 of the Indian Penal Code, 1860 (45 of 1860), or_ _(b) a criminal conspiracy to commit such offence, or_ _(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860),_ _Except with the previous sanction of the Central Government or of the State Government._ _(1A) No Court shall take cognizance of-_ _(a) any offence punishable under section 153B or sub section (2) of sub section (3) of section 505 of the Indian Penal Code, 1860(45 of 1860), or_ _(b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.”_ Going by the said statutory provision, cognizance for the offences punishable under VI of IPC can be taken only after obtaining sanction. The offence under Section 124A is under Chapter VI of IPC and therefore, sanction under Section 196 of the Cr.PC is a mandatory requirement. The aforesaid view has been taken by this Court in the judgments reported in Manuel P.J. (Advocate) v. State of Kerala and Another [2012(4)KHC CRL.MC No.3732 of 2018 6 710] and Roopesh v. State of Kerala and Others [2019(4)KLT 219]. In view of the fact that, no sanction as contemplated under Section 196 Cr.PC has been obtained before taking cognizance, the cognizance taken in C.C.No.39/2017 to the extent of the proceedings relating to the offence under Section 124A of the IPC is liable to be quashed. 8. Some of the other offences are under Sections 118(d) and (e) of the Kerala Police Act. As regards to the offence under Section 118(d), the same has already been declared as unconstitutional and therefore no cognizance on the same can be taken. With regard to Section 118(e), the specific case of the learned counsel for the petitioner is that, unless there is any allegation of commission of positive act on the part of the petitioner which causes danger to the public or failure in public safety, the offence would not get attracted. In this case, the only allegation against the petitioner is that, he conveyed to the authorities CRL.MC No.3732 of 2018 7 that a phone call has come to the school to the effect that there is a threat of explosion of bomb in the school where a function was supposed to be conducted. It is evident that the act which alleged against the petitioner by itself is not in the nature of something which is likely to cause any danger to public or failure in public safety. Apart from conveyance of a false message, he has not proceeded further by making any such positive acts endangering the lives of any persons. In order to establish the said contention, the learned counsel for the petitioner relies on the judgment in Santhosh M.J. v. State of Kerala 2018(2) KHC 360 . In the said case, this Court while considering the offence under Section 118(e) of the Police Act in the matter of allegation regarding the use of mobile phone while driving, it was observed in the following ## manner: _“10. No specific provision had been brought to our notice by which using mobile phone while driving a motor vehicle is considered to be a penal provision. Learned counsel for the petitioner submits that such an act may amount to dangerous driving as contemplated under S.185 of the MV_ CRL.MC No.3732 of 2018 8 _Act or it may even amount to rash or negligent driving punishable under S.279 of the IPC. The argument is that unless the prosecution is able to establish that use of mobile phone while driving amounts to act "which causes danger to public or failure in public safety" the provision will not be attracted. In other words, the provision indicates two aspects. One is that the act should cause danger to public or cause failure in public safety and; second is that the said person should have knowledge that it may cause danger to public or cause failure in public safety. Therefore, the provision indicates a positive act on the side of the offender which causes danger to public or failure in public safety.”_ While applying the aforesaid principles in this case, it can be safely concluded that the act allegedly committed by the petitioner does not amounts to an act which causes any danger to the public or failure in public safety. But it was a false information conveyed to the authorities. In such circumstances, I do not think that a case is made out for attracting Section 118(e) of the Police Act as well. 9. What remains is the offence under Section 506(i) of the IPC. Even though the learned counsel for the petitioner contends that the aforesaid CRL.MC No.3732 of 2018 9 allegations do not constitute an offence under Section 506, I am not prima facie satisfied with the said contention. However, I am not going into the said contention at the moment. It is evident that the offence under Section 506(i) is a non cognizable offence and unless any other cognizable offences are established against the petitioner, the learned Magistrate cannot take cognizance of the said offence on a police report. In this case, as I have already found that all the other cognizable offences charged against the petitioner are either not attracted or the cognizance was improperly taken thereon. In such circumstances, since the offence under Section 506(i) is a non- cognizable offence, the proceedings which is now pending as C.P.No.39/2017 cannot be sustained. In the result, Annexure-II final report in Crime No.637/2012 of Mannar Police Station and all the CRL.MC No.3732 of 2018 10 proceedings in C.P.No.39/2017 on the file of the Judicial First Class Magistrate Court-1, Chengannur are hereby quashed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.3732 of 2018 11 ## APPENDIX OF CRL.MC 3732/2018 PETITIONER’S ANNEXURES: ANNEXURE I TRUE COPY OF THE FIRST INFORMATION REPORT ALONG WITH THE FIRST INFORMATION STATEMENT IN CRIME NO.637/2012 OF MANNAR POLICE STATION. ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.637/2012 OF MANNAR POLICE STATION WHICH IS NOW PENDING AS CC NO.3894/14 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, CHENGANNUR.