RILASH R.L. v STATE OF KERALA & STATION HOUSE OFFICER, EAST KALLADA POLICE STATION

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943 ``` ## **`CRL.MC NO. 5122 OF 2020`** ``` CRIME NO.1022 OF EAST KALLADA POLICE STATION ``` ``` CC 1085/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM ``` ## **`PETITIONER/SOLE ACCUSED:`** ``` RILASH R.L. AGED 29 YEARS S/O.RICHARD, RILASH BHAVANAM, KODUVILA P.O., EAST KALLADA VILLAGE, KOLLAM DISTRICT-691 502 ``` ``` BY ADVS. ``` ``` MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH SHRI.SAMEER M NAIR ``` ## **`RESPONDENTS/STATE & INVESTIGATING OFFICER:`** - **`1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031`** - **`2 THE STATION HOUSE OFFICER, EAST KALLADA POLICE STATION, KOLLAM DISTRICT-691 001`** ``` BY ADV. PP-SRI.SUDHEER GOPALAKRISHNAN ``` ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON`** ``` 26.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5122 OF 2020 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the sole accused in C.C.No.1085 of 2018 on the files of Judicial First Class Magistrate Court I, Kollam which arises from Crime No.1022 of 2018 of East Kallada Police Station. The offence alleged against him is under Section 118(a) of Kerala Police Act. 2. The prosecution case is that the petitioner was found in an intoxicated stage, incapable of looking after himself by creating nuisance in a public place at Chothiram near East Kallada on 03.07.2018 and thus the aforesaid offence has been committed. This petition is filed by the petitioner for quashing Annexure A2 final report submitted in the aforesaid case. 3. Heard Sri.Manu Ramachandran, learned counsel for the petitioner, Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. The contentions put forward by the learned counsel for the petitioner is that no offence under Section 118(a) of Kerala Police Act has been made out. Referring to the contents in Annexure A2, it is pointed out by him that the documents submitted ``` CRL.MC NO. 5122 OF 2020 ``` ``` 3 ``` in support of allegations of Annexure A2 such as the mahazar and statements of witnesses are in a printed format, wherein the name and other personal details of the petitioner herein alone have been entered into by using a pen. It is his specific case that exact incident and the acts allegedly committed by the petitioner are not reflected in the mahazar prepared. On the other hand, the learned Public Prosecutor opposes the said contentions and points out that the allegations contained in Annexure A2 are sufficient to constitute the offence alleged against him. 4. When Annexure A2 final report is examined, it can be seen that, all the acts alleged to have been committed by the petitioner are incorporated in a mahazar prepared in a pre-printed format and only personal details of the petitioner have been entered into by writing. Section 118(a) of Police Act reads as follows: “ _118. Penalty for causing grave violation of public order or danger.— Any person who,—_ _(a) is found in a public place, in an intoxicated manner or rioting condition or incapable of looking after himself; or”_ In order to attract the aforesaid offence, the accused must have been ``` CRL.MC NO. 5122 OF 2020 ``` ``` 4 ``` found in public place in an intoxicated manner or rioting condition or incapable of looking after himself. In order to establish the aforesaid offence, the mahazar prepared by the Police which is a contemporaneous document should contain specific allegations as to the act alleged to have been committed by him when he was found in such a public place. Keeping a general format in a pre-printed form would not serve the purpose, as it indicates a preconceived idea of the offence. The term ‘intoxicated’ has been considered by this Court as in **Shybu Mathew v. State of Kerala [2012(1) KHC 392].** Paragraph Nos.4 to 8 of which reads as follows: _“4. The word 'intoxicated' does not mean that the man is dead drunk. In the Law Lexicon mentioned above, it is also stated that in the ordinary etymological meaning the term 'intoxication' means, a condition produced by excessive use of alcoholic stimulants. The decision of the Madras High Court in Re Palani Goundan AIR 1957 Mad. 546. has also been relied upon in this connection. There an accused was found having the symptoms, namely; smelling of arrack in breath, redness of the eyes and dilation of pupil, the tongue was clean and dry and the speech was incoherent and the gait was staggering. It was held in that case that the accused was in a state of intoxication. The learned counsel for the petitioner submits that in the present case, no such material is there and as such it cannot be said that the accused was in a state of intoxication. The decision cited supra was rendered in a case under the Madras Prohibition Act, 1937. There also the word 'intoxication' was not defined. The decision in Satya Rao versus State AIR 1954 AP 4 cited by the learned counsel was also rendered interpreting the word intoxication occurring in Madras Prohibition Act._ ``` CRL.MC NO. 5122 OF 2020 ``` ``` 5 ``` _5. The decision in Narayanan Nair versus State AIR 1952 TC 239 has also been cited by the learned counsel Mr. Alex M. Scaria wherein it was held that the word 'intoxication' applies only to the excessive use of intoxicating liquors or drugs, and that the state of intoxication may be taken to be practically equivalent to a state of drunkenness, so that the person intoxicated was incapable of knowing the consequences of his action._ _6. A mere smell of alcohol is not sufficient to hold that a person was intoxicated. But the observations made by the doctor as to whether there was smell of arrack/alcohol in the breath, redness of the eyes and dilation of pupil and whether the speech was incoherent and gait was unsteady or staggering may be relevant factors to hold whether the accused was intoxicated or not. The state of intoxication may be taken to be practically equivalent to a state of drunkenness. For that purpose whether the accused was incapable of knowing or realising the consequences of his action, whether there was weakening of self-control and weakening of his critical self awareness etc. would also assume relevance. The evidence that may be given by the witnesses as to whether the accused was found walking in an unsteady manner or whether his conduct or behaviour towards his fellow passengers or his fellow men was such that it could be inferred that the person was not in proper control of himself, whether there was disorderly behaviour or whether he was deprived of his sense of morality may be some of the relevant factors to find whether the accused was intoxicated or in rioting condition or was incapable of looking after himself._ _7. The expressions 'rioting condition' and 'incapable of looking after himself’, which are used disjunctively in Section 118(a), would make it clear that in order to find the accused guilty it is not necessary for the prosecution to prove that the accused was not only intoxicated but was also behaving riotously and that the accused was in such a condition that he was incapable of looking after himself. The learned counsel for the petitioner would submit that if such an interpretation is taken then a physically handicapped person who is incapable of looking after himself can also be held guilty under Section 118(a). But that submission cannot be accepted since the expression 'incapable of looking after himself’ used in Section 118(a) is in relation to the intoxication or such a condition or behaviour; it has nothing to do with the physical incapacity or incapability of the person_ ``` CRL.MC NO. 5122 OF 2020 ``` ``` 6 ``` _mentioned therein. The expression 'incapable of looking after himself’ cannot be understood divorced from the context in which it is used. In other words, the accused must be incapable of looking after himself because he had consumed liquor or other intoxicating substance. If a person is found indulged in disorderly behaviour and if it is proved that he had consumed liquor or other intoxicating substances, irrespective of the degree of drunkenness, he can be held to have committed the offence under Section 118(a). If a person is proved to have consumed liquor and he was seen indulged in disorderly behaviour then certainly it may be a relevant factor to find that he was in "an intoxicated manner" irrespective of the proof of degree of drunkenness._ _In Blacks Law dictionary (seventh edition) the meaning of the word intoxication is given as:_ _"A diminished ability to act with full mental and physical capabilities because of alcohol or drug consumption; drunkenness"_ _8. The expression 'rioting condition' used in Section 118(a) would mean that the person was behaving in a way that is violent and/or not in control. Behaving in a noisy and/or violent or tumultuous manner may come with in the expression "rioting condition" occurring in Section 118(a). The behaviour which is contrary to law which may tend to disturb the sense of morality of the public, or which may affect the public peace or decorum may also be termed as riotous or disorderly behaviour. If a person's behaviour is such that it was causing nuisance to the public or is offensive likely to affect the decorum, that may also be a relevant factor to decide whether the accused was in a rioting condition or incapable of looking after himself.”_ Thus, in order to treat the petitioner herein as a person in an intoxicated state, there must be materials to show that, he was incapable of knowing the consequences of his actions and there was weakening of self control etc. It is also to be shown that he was found in such a condition, in a public place. Going by the certificate ``` CRL.MC NO. 5122 OF 2020 ``` ``` 7 ``` of drunkenness which forms part of Annexure A2 final report, it cannot be concluded that the petitioner was in an intoxicated stage in the manner as described above. Of course it is mentioned that the petitioner was under the influence of alcohol. There is noting to indicate that he was unable to control himself and was not in a position to know the consequences of the his own actions. Similarly, medical certificate cannot reflect the manner in which the petitioner behaved while he was in public place. In my view unless the contemporaneous documents such as FIR, mahazar etc, contains specific allegations pointing out the exact acts committed by the petitioner when he was found on a public place, the offence under Section 118(a) cannot be attracted. Even though it was mentioned that he was using abusive words, the aforesaid statements are contained only in the form of pre-printed general format which cannot be relied upon. The statements of witnesses are also in preprinted format and only the personal details are entered into by writing with pen. The Police is not expected to conduct investigation and submit final report by using general pre-printed ``` CRL.MC NO. 5122 OF 2020 ``` ``` 8 ``` format as to the allegations without specific reference to the acts committed by the accused person. The general format of contemporaneous documents in a pre-printed form defeats the purpose of the investigation, as the same indicates a preconceived impression as to the offence. The application of mind and objective assessment of the events occurred at the relevant time and the acts of the petitioner may not properly reflect therein. The mahazar and statements of witnesses are documents which should indicate the specific acts alleged to have been committed by the accused for attracting the offences and that varies from case to case. Under no circumstances the same can be conveyed through a pre-printed mhazar and statements of witnesses. The medical examination report by itself is not sufficient to establish the offence under section 118(a). In order to attract the said offence, behaviour of the petitioner while he was in public place is the relevant aspect, which can be proved only through the other materials such as mahazar, statements of witnesses etc. Therefore, unless the mahazar is prepared at the time of the detection of the crime itself and the ``` CRL.MC NO. 5122 OF 2020 ``` ``` 9 ``` statements of the witnesses were recorded without unreasonable delay after the commission of the alleged crime, referring to the specific allegations as to the acts of the accused, the purpose of investigation would get defeated. In this case, all the said documents are in pre-printed formats with a uniform language. The same cannot be treated as documents reflecting the actual sequence of events revealing the specific acts of the petitioner, in the absence of which, the offence would not be attracted.. In such circumstances, I am of the view that Annexure A2 is a clear abuse of process of law and it is liable to be quashed. Accordingly, this Crl.M.C. is allowed and all proceedings in C.C.No.1085/2018 on the file of the Judicial First Class Magistrate Court I, Kollam in Crime No.1022 of 2018 of East Kallada Police Station are quashed. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ## **`scs`** ``` CRL.MC NO. 5122 OF 2020 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 5122/2020`** ``` PETITIONER ANNEXURE ANNEXURE-A1THE CERTIFIED COPY OF THE FIR IN CRIME NO.1022 OF 2018 OF EAST KALLADA POLICE STATION, KOLLAM DISTRICT ANNEXURE-A2THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1022 OF 2018 OF EAST KALLADA POLICE STATION, KOLLAM DISTRICT WHICH IS PENDING AS CC NO.1085/2018 OF THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, KOLLAM ```