Ravi Nambiar S/O Kesavan Nambiarr vs State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942** ## **Crl.MC.No.8191 OF 2017** **AGAINST THE ORDER/JUDGMENT IN CC 1219/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,TRIVANDRUM** **CRIME NO.812/2013 OF Museum Police Station , Thiruvananthapuram** ## **PETITIONER/S:** **RAVI NAMBIAR S/O. KESAVAN NAMBIAR, AGED 59 YEARS, TC 8/1045(2), ELANGATHU NAGAR, ERA-B8, VALIYAVILA, THIRUVANANTHAPURAM DISTRICT.** ## **BY ADV. SRI.M.SREEKUMAR** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SEI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.8191 OF 2017** **2** **ALEXANDER THOMAS, J. ======================== Crl. M.C. No. 8191 of 2017 ---------------------------------------------------Dated this the 23[rd] day of November, 2020** ## **O R D E R** The prayers in the aforecaptioned Crl.M.C. filed under Sec.482 of the Cr.P.C. is as follows : _“......to quash the proceedings in CC No. 1219/2017 on the file of the Judicial First Class Magistrate Court-III, Thiruvananthapuram initiated on the basis of Annexure-B final report in the interest of justice.”_ 2. Heard Sri.M.Sreekumar, learned counsel appearing for the petitioner/accused, Sri.Santhosh Peter, learned Public Prosecutor appearing for R1-State of Kerala. Though addl. respondent No.2 (lady defacto complainant) has been duly served, there is no appearance for the party. 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Annexure-A FIR in crime No.812/2013 of Thiruvananthapuram Museum Police Station, which has been registered for offences punishable under Secs. 341, 323 and 354 A of the IPC on the basis of the First Information Statement given by the 2[nd] respondent-lady defacto complainant on 7.6.2013 at about 9 a.m. in respect of the alleged incident which happened on the same day (7.6.2013) at 8.15 a.m. in the morning. The police after investigation has filed the impugned Annexure-B **Crl.MC.No.8191 OF 2017** **3** final report/charge sheet in Annexure-A FIR in crime No.812/2013 of Thiruvananthapuram Museum Police Station and after taking of cognizance for the offences thereon, the case is now pending as calendar case, CC No.1219/2017 on the file of the Judicial First Class Magistrate Court-III, Thiruvananthapuram. The offences alleged therein also are the same as involved in Annexure-A FIR. 4. The brief of the prosecution case as disclosed from AnnexureA FIS given on pages 12 to 14 of the paper book of this Crl.M.C. is as follows: “ ÎcâØßÏ¢åçÉÞÜàØí Øíçx×X 7.6.13, 9.00 _hrs._ ÎcâØßÏ¢åçÉÞÜàØí Øíçx×X ØÌîí §Xøíæɵí¿Vå _K.K._ ç·ÞɵáÎÞùßçÈÞ¿í æÕUÈÞ¿í ÕßçÜï¼ßW ©ùßÏçAÞ¿í ÕÞVÁßW ©ùßÏçAÞ¿í ºVºîí ¼¹í×ÈßW ÙÞMß çÙÞÎßW dµßØíxW çÌÌß ÎµZ 29 ÕÏTáU æ×V{ß ÉùÏáK æÎÞÝß ( _WCPO_ å3217æa ØÞKßÇcJßW) ¾ÞX _M.A._ Õæø ÉÁߺîßGáIí. ÕàGßW ÍVJÞÕí ØçLÞ×ᢠ1 ÕÏTáU εX çļTáÎÞÏß ÄÞÎØߺîáÕøáKá. çºGX 濵íçÈÞÉÞVAßæÜ èdÁÕùÞÃí. ¾ÞX Õà¿ßçÈÞ¿í çºVKí ÁÞXØí ØíµâZ È¿JßÕøßµÏÞÃí. §Kí (7.6.13) ÄàÏÄß µáEßæÈ æÎÁßAW çµÞç{¼í ¦ÖáÉdÄßÏßW æµÞIáçÉÞµáKÄßÈÞÏß ¾ÞÈᢠçºGÈᢠ¾B{áæ¿ _KL-20-E 8202_ ÈOV . _Omni_ µÞùßW ÏÞdÄæºÏñáÕøæÕ . _SMC_ ¼¹í×X ÎáÄW ¾B{áæ¿ µÞùßæa Éáùæµ ÕK æÕU ....µÞùßW ³¿ßºîá ÕK ²øÞZ §¿Aß¿Aí ¾B{áæ¿ µÞùßæÈ ³ÕVç¿Aí æºÏîáµÏᢠ¾Bæ{ çÈÞAß èµæµÞIí ®çLÞ ¦¢·c¢ µÞÃßAáµÏá ¢åæºÏñá ÕøßµÏÞÏßøáKá. ©çiÖ¢ 8.15åÎÃßçÏÞ¿áµâ¿ß ¾BZå _PMG_ . ¼¹í×ÈßW ÈßKᢠÉïÞÎâGßçÜAí çÉÞµáK _one way_ çùÞÁßæaåÍÞ·Jí ®JßÏ ØÎÏ¢ ¾Bæ{ ÉßLá¿VKíåÕøßµÏÞÏßøáK _Omni_ µÞV ¾B{áæ¿ µÞùßæa §¿ÄáÕÖJáµâ¿ß _overtake_ æºÏñí ÎáKßW æµÞIí µáùáæµ ÈßVJß. _overtake_ æºÏñØÎÏ¢ µÞùáµZ ÄNßW ÄGßÏßøáKá. çºGX µÞùßW ÈßKᢠÉáùJßùBßÏ ØÎÏ¢ _Omni_ µÞV ³¿ßºîáÕK ©çgÖ¢ 50 ÕÏçTÞ{¢ dÉÞÏ¢ ÕøáK Ŀߺî ÖøàøçJÞ¿íµâ¿ßÏ ¦Z µÞùßW ÈßKᢠÉáùJßùBáµÏá¢, çºGÈᢠ¥ÏÞ{ᢠÄNßW Ø¢ØÞøÎáIÞµáµÏᢠæÉæGKí ¥ÏÞZ çºGæa §¿ÄáµÕß{ßW ²Ká øIá ÄÕà ÕÜÄáèµæµÞI¿ßAáµÏᢠçºGæa ÖøàøJßæa ÉÜ ÍÞ·B{ßÜᢠèµÎáùáAß §¿ßAáµÏᢠ×VGí ÕÜߺîá µàùáµÏᢠæºÏñá. çºGæÈ ¥¿ßAáKÄáµIí ¾ÞX µáEßæÈÏᢠèµÏßæÜ¿áJí ÉáùJßùBß ¥ÏÞæ{ É߿ߺîá ÎÞxÞX dÖÎߺîØÎÏ¢ ¥ÏÞZ ÕÜÄá èµæµÞIí ®æa §¿ÄáµÕß{ßW §¿ßAáµÏᢠ®æa ºáøßÆÞùßæa ç¿ÞMí ÕÜߺîáµàùáµÏᢠæºÏñá. ¥ÏÞZ ®æK çÆçÙÞÉdÆÕçÎWMߺî ØÎÏ¢ ®æa èµÏßÜßøáK µáEßæaÏᢠÖøàøJíå¥¿ß æµÞIßøáKá. ¾Bæ{ çÆçÙÞÉdÆÕçÎWMߺîÏÞZ ÙßwßÏÞÃí Ø ¢ØÞøߺîßøáKÄá. çºGÈᢠÙßwß ÈKÞÏß Ø¢ØÞøßAá¢. ®æa ÈßÜÕß{ß çµGí ÈÞGáµÞV ³¿ßÕøßµÏá¢, ¾Bæ{ çÆçÙÞÉdÆÕçÎWMߺîÏÞZ ¦ ØÎÏ¢ µÞùßW µÏùß çÉÞµÞX dÖÎߺîçMÞZ ÈÞGáµÞV ¥ÏÞæ{ Ä¿ÏáµÏᢠæºÏñá. ¾Bæ{ çÆçÙÞÉdÆÕæÎWMߺîÏÞ{áæ¿ µÞùßW ¥ÏÞç{Þæ¿ÞM¢ ©çgÖ¢ 30 ÕÏçTÞ{¢ dÉÞÏÎáU ²øÞ{ᢠ©IÞÏßøáKá. ¥ÏÞZ µÞùßW ÈßKᢠÉáùJßùBß ÈßKÄÜïÞæÄ **Crl.MC.No.8191 OF 2017** **4** ¾Bæ{ çÆçÙÞÉdÆÕçÎWMßAáµæÏÞKᢠæºÏñßGßÜï. ¾B{áæ¿ µÞùßæa §¿ÄáÕÖJá µâ¿ß ÕÞÙÈ¢ ³ÕVç¿Aí æºÏîáKÄßÈí ØÞÇßAÞJÄßW ÕºîáUåÕßçøÞÇ¢ ÈßÎßJÎÞÃí _Omni_ µÞùßW ÏÞdÄæºÏñá ÕKÏÞZ ¾Bæ{ çÆçÙÞÉdÆÕçÎWMߺîÄí. ºÞøÈßùJßÜáU ¿à ×VGᢠÈàÜÈßùJßÜáU d¿ÞAí ØcâGᢠÇøßºî ¥ÏÞæ{ ®ÈßAßÈßÏᢠµIÞÜùßÏÞ¢. Ø ¢ÍÕØíÅÜ¢ §Õßæ¿ ÈßKᢠ1 _km_ Õ¿AáÉ¿ßEÞùá ÎÞùßÏÞY'. Ø¢ÍÕJßW Õºîí ®ÈßAí ÎÞÈÙÞÈßÏᢠÎçÈÞÕß×ÎÕᢠ©IÞÏß.å æÎÞÝß ÕÞÏߺîáçÈÞAß ÖøßÄæKÏÞÃí. æµ.æµ. ç·ÞɵáÎÞV çÉÞÜàØí ØÌîí §XØíæɵí¿V ÎcâØßÏ¢ çÉÞÜàØí Øíçx×X ## çÆÙØíÅßÄßçÈÞGí : çÎWæÎÞÝßÄK ¦ÕÜÞÄßAÞøßÏáæ¿ çÆÙ¢ çÈÞAßÏÄßW ¿ßÏÞZ §{¢ ɺîÈßùJßW çùÞØí ÈßùJßÜáU ÉâAç{Þ¿í µâ¿ßÏÄᢠÕÜÄáÍÞ·¢ Øïßxßæa ÄÏîW ɵáÄßçÏÞ{¢ çÕVæÉGÈßÜÏßÜáU ç¿ÞMᢠçùÞØí ÈßùJßÜáU ÉÞaᢠ§{¢ ɺîÈßùJßÜáU ×Þ{ᢠÇøߺîᢠ§¿Äí µÕß{ßÜᢠÖøàøJßæa ÉÜ ÍÞ·B{ßÜᢠçÕÆÈÏáUÄÞÏß ÍÞÕߺîᢠfàÃßÄÏÞÏß §øáKá µÞÃáKá. æµ.æµ. ç·ÞɵáÎÞV çÉÞÜàØí ØÌîí §XØíæɵí¿V ÎcâØßÏ¢ çÉÞÜàØí Øíçx×X ## çÆÙØíÅßÄßçÈÞGí : ¦ÕÜÞÄßAÞøßçÏÞæ¿ÞM¢ çÆçÙÞÉdÆÕçÎx ¿ßÏÞ{áæ¿ ÍVJÞÕßæa çÆÙ¢ çÈÞAßÏÄßW §¿ÄáÍÞ·¢ µàùßÉùßE ÈßÜÏßÜáU dµà¢ µ{ùßW Õøµç{Þ¿áµâ¿ßÏ æºAí ×VGᢠÉÞaᢠÇøߺîᢠ§¿ÄáµÕß{ßÜᢠÖøàøÎÞصÜÕᢠçÕÆÈÏáUÄÞÏß ÍÞÕߺîᢠµÞÃáKá. æµ.æµ. ç·ÞɵáÎÞV çÉÞÜàØí ØÌîí §XØíæɵí¿V ÎcâØßÏ¢ çÉÞÜàØí Øíçx×X” 5. That the 2[nd] respondent-lady defacto complainant is a married woman aged about 29 years and that on 7.6.2013 in the morning, she was travelling along with her husband in his car in Thiruvananthapuram city and when their car had reached Sreemoolam Club junction, she had noted that an Omni car which was behind them was trying to overtake them and that she had seen the driver of the said car showing gesticulations and gestures to them angrily and then at about 8.15 a.m. in the morning, when they had reached the PMG junction and had proceeded to Plamoodu by taking the one way road, the abovesaid Omni car was following them and said car had overtaken them and blocked them. Thereupon, the lady’s **Crl.MC.No.8191 OF 2017** **5** husband got out of the car and heated argument had taken place between the person who was in the said Omni car and the lady’s husband. Thereupon, the said person had assaulted the 2[nd] respondent’s husband by slapping on his cheeks twice and he had also strongly twisted on her husband and had torn his husband’s shirt and seeing that the lady along with the child had come out of the car and tried to separate her husband from the clutches of the said man. On being enraged at that, the said person hit her on her left cheek and had torn the lady’s churidar top and had thus caused hurt to her and in the process, her child also got beating from him. That the man who assaulted them was speaking in Hindi in a fluent manner and hearing her cries, some of the persons in the locality had gathered and prevented the said assailant to go away and thus he was taken to the police station, whereupon the crime was later registered as per Annexure-A at 9 a.m. in the morning, after recording of the said First Information Statement of the lady etc. Thereupon, the police could know the identity of the assailant. Thereafter, the petitioner was identified as the said assailant and he was arrayed as the accused in the said crime. 6. One of the main contentions urged by the counsel for the petitioner is to the effect that the abovesaid allegations are false and motivated and that the petitioner was actually travelling peacefully and the lady’s husband was driving their car in a rash and negligent manner with overspeed and had hit the car of the petitioner and then he had to stop and **Crl.MC.No.8191 OF 2017** **6** come out of the car. At this, the lady’s husband had abused him in filthy language and that when the lady and husband came to know that the petitioner is a retired military officer, they had raised the abovesaid false allegations etc. 7. Per contra, Sri.Santhosh Peter, learned Public Prosecutor appearing for respondent – State of Kerala would submit that while exercising such extra ordinary inherent powers under Sec.482 of the Cr.P.C. , it may not be right and proper for this Court to totally disbelieve the version of the defacto complainant and to believe the version of the petitioner/accused and that if the petitioner’s main contentions accepted, it would amount to overruling the very version given by the 2[nd] respondentlady defacto complainant as bereft of any believability and credibility and going by the facts and circumstances of this case, it cannot be said that the case of the 2[nd] respondent is totally false or malicious and that the incident is said to have happened at 8.15 a.m. in the morning and thereafter, the crime has been registered without any further delay at 9.00 a.m. on the same day. A reading of the First Information Statement and the prosecution materials at Annexure-B final report cannot be the ground for this Court to infer that the very version given by the 2[nd] respondent is bereft of any believability and credibility etc. 8. After hearing both sides, this Court is of the considered view that the learned Prosecutor is certainly right in dissuading this Court from **Crl.MC.No.8191 OF 2017** **7** accepting the abovesaid contentions of the petitioner. Hence, the abovesaid plea of the petitioner if allowed by this Court, would amount to overruling the very version given by the 2[nd] respondent-lady defacto complainant. Hence, the abovesaid submissions of the petitioner cannot be countenanced and the same would stand overruled. 9. The next contention put forward by the petitioner’s counsel is that the vital ingredients of the offence as per Sec.354A of the IPC are not made out. Sec.354A of the IPC deals with sexual harassment and the punishment for sexual harassment and the same reads as follows : _“Sec.354A –_ _**Assault or criminal force to woman with intent to outrage her modesty -** Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”_ 10. On the basis of the abovesaid provisions, the counsel for the petitioner would point out that the physical contact and advances envisaged in clause (i) of sub-section (1) of Sec. 354 should be one which is involving unwelcome and explicit sexual overtures. In other words, the counsel for the petitioner would point out that going by the story put forward by the prosecution, it cannot be said that clauses ii, iii and iv of Sec.354A (i) would come into play. Hence, it is pointed out that in order to attract the necessary ingredients contained in clause (i) of Sec.354A of the IPC, physical contact and advances alleged by the prosecution should be involving unwelcome and explicit overtures. In that regard, it is argued by **Crl.MC.No.8191 OF 2017** **8** the learned counsel for the petitioner that even going by the case of the 2[nd] respondent-lady defacto complainant as made out in Annexure-A FIR and FIR as well as in the impugned prosecution materials at Annexure-B final report/charge sheet, their case is one of road rage and that the petitioner was enraged in the act of the 2[nd] respondent-husband in not giving him the way to overtake the car and that therefore, the petitioner in a fit of anger had blocked their car and had started assaulting the lady’s husband and at that stage, when the lady tried to protect her husband, the petitioner had assaulted her and had also torn her churidar etc. Hence, it is submitted by the petitioner that even going by the prosecution case, the incidents had happened in a fit of rage and anger and therefore, the prosecution does not even remotely have a case that the alleged physical contact said to have been made by the petitioner by assaulting the lady and tearing her dress etc. is one which would involve unwelcome and explicit overtures as the prosecution does not have any case that petitioner has done those acts with any sexual intention and the said acts have been done out of rage and anger, it cannot be said that the physical contact is one which is involving unwelcome and explicit sexual overtures. Hence, it is urged that none of the ingredients contained in Sec.354A of the IPC are attracted in the instant case and that the case would require interdiction. 11. Sri.Santhosh Peter, learned Public Prosecutor appearing for the 1[st] respondent-State of Kerala would hotly deny the abvoesaid contentions **Crl.MC.No.8191 OF 2017** **9** of the petitioner and would point out that these are all the matters for judicial evaluation and it is for the petitioner to raise all these contentions at the time of trial. Now, it is apprised by this Court that at the crime investigation stage, the petitioner had secured bail under Sec.437 of the Cr.P.C. Later, after learned Magistrate taking cognizance and issued summons to him, the petitioner has not appeared before the learned Magistrate thereafter. It is also brought to the notice of this Court that so far the learned Magistrate has not framed charges in this case. 12. After hearing both sides, this Court is of the considered view that the petitioner will be at liberty to raise his contentions by filing appropriate application for discharge before the learned Magistrate, without any further delay and upon which, the learned Magistrate will consider the said plea of the discharge on merits after affording opportunity of being heard to the petitioner’s counsel, learned Public Prosecutor as well as the learned counsel appearing for the 2[nd] respondentlady defacto complainant, without much delay, preferably within six weeks from the date of filing of such discharge application. However, this will be subject to the condition that the discharge application will be considered only if the petitioner files discharge application before charges are framed by the learned Magistrate in this case. All the contentions of the parties concerned may be duly considered by the learned Magistrate and after adverting to the rival contentions and the learned Magistrate may pass a **Crl.MC.No.8191 OF 2017** **10** considered order on the plea of the petitioner for discharge within the abovesaid time limit. Thereafter, in case any of the parties have any legally justiciable grievances in the matter, liberty is accorded to them to work out their remedies in the manner known to law. All issues are left open to be raised and decided in appropriate proceedings in the manner known to law. 12. The counsel for the petitioner has also pointed out that at the crime investigation case, the petitioner has already secured bail in this case under Sec. 437 of the Cr.P.C., there is no legal necessity for the petitioner to again seek grant of bail after taking cognizance in this case. In that regard, the petitioner’s counsel would place reliance on the recent constitutional bench decision of a five Judge Bench of the Apex Court in the case in _**Sushila Aggarwal v. State (NCT of Delhi)**_ [2020 (1) KLT 545 (SC)] = [(2020) 5 SCC 1], where it has been held that the validity period of a bail order secured by an accused at the crime investigation stage under Sec.437 of the Cr.P.C. will be till the entire duration of the trial etc. Further, it is pointed out that the said dictum laid down by the constitutional bench of the Apex Court in _**Sushila Aggarwal’s**_ case (supra) [(2020) 5 SCC 1] in the context of an anticipatory bail order obtained by an accused under Sec. 437 of the Cr.P.C. would apply with equal or greater vigor in the case of bail secured by an accused under Sec. 437 of the Cr.P.C. This Court is not in a position to ascertain as to whether the petitioner has already secured bail in this case at the crime investigation stage. Therefore, the learned **Crl.MC.No.8191 OF 2017** **11** Magistrate will advert to the abovesaid submissions made by the petitioner, and should duly take note of and if as a matter of fact, the petitioner has already secured bail at the crime investigation stage in terms of Sec. 437 of the Cr.P.C. or under Sec. 439 of the Cr.P.C., then the duration of the bail so obtained by him will be till the conclusion of the trial, and not merely till the stage of taking cognizance in the case, after filing of the final report/charge sheet. 13. Registry will forward a copy of this judgment to the Judicial First Class Magistrate Court-III, Thiruvananthapuram, who is dealing with CC No.1219/2017 for necessary information. With these observations and directions, the above Criminal Miscellaneous case will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** SKS **Crl.MC.No.8191 OF 2017** **12** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **CERTIFIED COPY OF FIR NO.812/2013 OF MUSEUM POLICE STATION DATED 7.6.2013.** **ANNEXURE B CERTIFIED COPY OF FINAL REPORT IN CRIME NO.812/13 OF MUSEUM POLICE STATION DATED 27.9.2017.** **ANNEXURE C** **TRUE COPY OF ORDER OF THIS HON'BLE COURT IN CRL. M. C. NO. 2942/2013 DATED 19.9.2017.**