Sabu M. Jacob and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 10TH DAY OF JUNE 2019 / 20TH JYAISHTA, 1941** ## **Crl.MC.No. 5318 of 2016** **CC NO.1404/2015 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KOLENCHERRY** ## **CRIME NO. 1256/2015 OF KUNNATHUNADU POLICE STATION, ERNAKULAM** ## **PETITIONERS/ACCUSED NOS.1 TO 31:** - **1 SABU M. JACOB, S/O. JACOB, AGED 53 YEARS, MECKAMKUNNEL HOUSE, VILANGU KARA, KIZHAKKAMBALAM VILLAGE, VILANGU P.O., ERNAKULAM DISTRICT-683561.** - **2 BOBBY M. JACOB, S/O JACOB, AGED 55 YEARS, MECKAMKUNNEL HOUSE, VILANGU KARA, KIZHAKKAMBALAM VILLAGE, VILANGU P.O., ERNAKULAM DISTRICT-683561.** - **3 THOMAS, S/O. ULAHANNAN, AGED 61 YEARS, KUREEKKALVEEPPATTU HOUSE, POYYAKKUNNU KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **4 OORAYI, AGED 64 YEARS, S/O HASSAN HAJI, CHELAKKULAM KARAYIL, PATTIMATTAM VILLAGE, ERNAKULAM DISTRICT-683556.** - **5 SURENDRAN, S/O. SIVASANKARAN NAIR, AGED 43 YEARS, PUTHIYAMADOM HOUSE, KUMMANODU KARA, PATTIMATTAM VILLAGE, ERNAKULAM DISTRICT.** - **6 JABBAR, S/O. ALIYAR, AGED 47 YEARS, KEEPPETHU HOUSE, CHELAKKULAM KARA, PATTIMATTAM VILLAGE, ERNAKULAM DISTRICT-683561.** - **7 SALEEM, S/O. MUHAMMED, AGED 46 YEARS, KUNJATHI VEETIL, KUMMANOTTU KARA, PATTIMATTAM VILLAGE, ERNAKULAM DISTRICT.** - **8 K.V.JACOB, S/O VARGHESE, AGED 46 YEARS, KAITHAKOOMBIL HOUSE, MALAYIDAMTHURUTHU, PATTIMATTAM VILLAGE, ERNAKULAM DISTRICT, (PRESIDENT, KIZHAKKAMBALAM GRAMA PANCHAYAT).** Crl.MC.No. 5318 of 2016 2 - **9 BIJOY PHILIPOSE, S/O. C.P.PHILIPOSE, AGED 33 YEARS, OLANGATTU HOUSE, ERUMELY KARA, KUNNATHUNADU VILLAGE, ERNAKULAM DISTRICT.** - **10 JOSE, AGED 56, S/O. ANTHONY, THRUTHIPARAMBIL HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **11 NANU, AGED 68, S/O. NANU, KOORAYIPPILI HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM KARA, ERNAKULAM DISTRICT.** - **12 SAJU ANTONY, AGED 41 YEARS, S/O ANTONY, MUTTAMTHOTTIL HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **13 SANAKAN, AGED 50, S/O. PURUSHAN, PULICKAL HOUSE, PAZHANGATTU KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **14 JAISON, AGED 39 YEARS, S/O. GEORGE, PUTHANPURAYIL HOUSE, LAKSHAMVEEDU COLONY, NJARALLOOR KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **15 JOY JOHN, AGED 55, S/O. YOHANNAN, THURUTHUMMEL HOUSE, THAMARACHALPURAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **16 FRANCIS @ PIKINI, AGED 58, S/O. OUSEPH, KULANGARA HOUSE, THURUTHU KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **17 YOHANNAN @ ULAHANNAN, AGED 66, S/O. ITTHAPAIRI, PUTHIYAMADAM HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **18 GEORGE PAUL, AGED 56, S/O. PAULOSE, KOCHAKKAL HOUSE, VILANGU KARA, PATTIMATTAM VILLAGE, ERNAKULAM DISTRICT.** Crl.MC.No. 5318 of 2016 3 - **19 SHIJU MATHAI, AGED 39 YEARS, S/O. M.I.MATHAI, MUTTUVANCHERRY HOUSE, NJARALLOOR KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **20 AUGUSTIN ANTONY, AGED 60, S/O. ANTONY, PATHIKULANGARA HOUSE, KIZHAKKAMBALAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **21 SREEDHARAN, AGED 65, S/O. KUNJIKRISHNAN, KALARICKAL HOUSE, POYYAKUNNAM KARA, KIZHAKKAMBALAM VILLAGE.** - **22 RAJU, AGED 48, S/O. MATHAI, PARAKKATTUMALI HOUSE, NJARALLOOR KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **23 RAJU, AGED 46, S/O. KUNJAPPAN, KORANKUDY HOUSE, KARUKULAM KARA, PATTIMATTAM VILLAGE, ERNAKULAM DISTRICT.** - **24 SAJEEV KOSHY, AGED 53 YEARS, S/O. LATE K.K.KOSHY, KARIMPUMKALAYIL HOUSE, ASAMANNOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** - **25 ACHAMMA JOY, AGED 58, W/O. JOY, CHILLIRIKKAL HOUSE, POYYAKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **26 BEENA BIJU, AGED 40, W/O. BIJU, CHILLIRIKKAL HOUSE, POYYAKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **27 SINDHU SATHEESH, AGED 34, W/O. SATHESH, NARIYIL HOUSE, POYYAKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **28 LAKSHMIKUTTY, AGED 61, W/O. SUKUMARAN NAIR, KIZHOTHU HOUSE, POYYAKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** Crl.MC.No. 5318 of 2016 4 **29 SUKUMARI, AGED 45, W/O. SUDHAN, KOORAPILLIL HOUSE, POYYAKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** - **30 LATHIKA, AGED 54, W/O. KRISHNANKUTTY, KOORAPILLI HOUSE, POYYAKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** **31 KUNJUMUHAMMED, AGED 50, S/O. SULAIMAN, VELLEKKATTU HOUSE, CHELAKULAM KARA, KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT.** **BY ADV. SRI.GEORGE POONTHOTTAM (SR.)** ## **RESPONDENTS/COMPLAINANT/STATE:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** - **2 THE STATION HOUSE OFFICER/INVESTIGATING OFFICER, KUNNATHUNADU POLICE STATION, KUNNATHUNADU, ERNAKULAM DISTRICT-683544.** ## **SMT M.K. PUSHPALTHA SR.PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 5318 of 2016 5 ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioners herein have approached this Court seeking to quash the proceedings pending against them as C.C. No.1404 of 2015 on the file of the Judicial First Class Magistrate Court, Kolencherry, wherein they face accusations of having committed offences punishable under Sections 143, 147, 120(b), 283, 188 r/w. Section 149 IPC and Section 5(d) of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 (Act 9 of 2011). 3. The petitioners are allegedly the activists of a pro-people non-profit organization having its base at Kizhakkambalam. According to the prosecution, they formed themselves into an unlawful assembly and in prosecution of their common object, took out a procession through the Aluva-Kizhakkambalam public road causing obstruction to the free flow of traffic and conducted a ‘Dharna’ in front of the Indian Made Foreign Liquor outlet run by the Kerala State Beverages Corporation, a Company fully owned by the Government of Kerala. 4. Heard Sri.George Poonthottam, the learned counsel appearing for the petitioners, and the learned Senior Public Prosecutor Crl.MC.No. 5318 of 2016 6 and I have considered the submissions made across the bar. 5. As is evident from Annexure-A2 final report, one of the offences alleged against the petitioners is under Section 188 of the IPC. To attract Section 188 of the IPC, it has to be shown that a person has disobeyed an order promulgated by a public servant, who has lawfully empowered to promulgate such an order and that the disobedience has resulted in causing obstruction, annoyance or injury to any person lawfully employed or has resulted in danger to human life, health or safety. No offence under Section 188 of the IPC can be taken cognizance of by the court otherwise than on a complaint filed by the public servant concerned. In otherwords, the bar under Section 195(1)(a) of the Cr.P.C. interdicts the court from taking cognizance of such an offence otherwise than on a complaint by the public servant concerned. This is a case charge sheeted by the police and hence, the cognizance taken cannot be said to be proper. 6. From the final report, it is evident that the petitioners were protesting against the functioning of a foreign liquor outlet in the Panchayat. The petitioners have a contention that it is the duty of the State under Article 47 of the Constitution of India to bring about restrictions of consumption of intoxicating drinks which are injurious to Crl.MC.No. 5318 of 2016 7 health. When certain right thinking persons, who are aware of their duties, protest the function of a liquor outlet in their Panchayat, the State cannot twist their arms and categorize their movement as unlawful and stifle their legitimate protest. Viewed in this background, when the allegations in the final report are perused, it would appear that the ingredients of the offence under Sections 143, 147 and 283 of the IPC would not be attracted. Section 283 will apply only in cases where any person, by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation. In the case on hand, it is the admitted case that the local people were legitimately expressing their right to protest to close the liquor outlet. 7. In almost identical fact scenario, this Court in **K.K.Poulose** **v. State of Kerala** [2013 (4) KLT 687], had occasion to observe as follows:- “Para 3.............................."Leaving that aspect, the question to be examined is whether the assembly was unlawful. What could be an unlawful assembly is defined under Section 141 of the Indian Penal Code. One of the five situations covered by that section has to be satisfied to hold that the assembly consisting of more than five persons was an unlawful Crl.MC.No. 5318 of 2016 8 assembly. Other than setting forth an allegation that a meeting was organised by a group of persons blocking traffic even in the final report filed, no whisper is made that it is so done to resist the execution of any law. True, it may be possible to infer that what was done was unlawful. But something more is required to prosecute a person as a member of an unlawful assembly. Then also the fact remains that the alleged blockage was in connection with some agitation led by a group of persons and is occurred years before. Those who were arrested, it is seen, are arrayed as accused when final report was filed. As rightly contended by learned counsel in a case of this nature even if prosecution steps are continued, in which more than 200 persons are arrayed as accused, after such lapse of time, it may not serve any purpose other than causing loss of precious time of the Court. I say so after looking into Annexure-III report which by itself does not satisfy the requirements necessary to establish ingredients of the offence under Section 283 of the Indian Penal Code as well. When such be the case, continuation of the criminal proceedings against the accused, all of them, in the aforesaid case is not called for". 8. The ratio laid down in _**K.K.Poulose**_ (supra) will squarely apply to the facts of the instant case. 9. The constitutionality of the provisions of Act 9 of 2011 was Crl.MC.No. 5318 of 2016 9 challenged before this Court and a Division Bench of this Court in **Basil Attipetti v. State of Kerala and Others** [2012 (2) KLT 143] had occasion to hold that Section 5(1)(c) of the Act is unconstitutional. Insofar as 5(1)(d) of the Act is concerned, it was held that procession should be permitted on one side of the road by allowing free flow of traffic on the other side. In the case on hand, there is no case for the prosecution that the petitioners had obstructed the entire carriage way and the traffic was fully obstructed. At any rate, there is no allegation that the petitioners have violated Section 4 of the Act. 10. It is trite that exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as the rarest of rare so as not to scuttle the prosecution. With the lodgment of first information report, the ball is set to roll and thenceforth, the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. However, if the court on a perusal of the complaint or the final report comes to a conclusion that the allegations Crl.MC.No. 5318 of 2016 10 levelled in the complaint or charge-sheet on the face of it do not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. 11. Having regard to the facts and circumstances, I am of the considered view that the continuance of proceedings against the petitioners herein is nothing, but an abuse of process and is liable to be quashed in exercise of powers of this Court under Section 482 of the Cr.P.C. In the result, this petition is allowed. Annexure-A2 final report and all further proceedings pursuant thereto against the petitioners now pending as C.C. No.1404 of 2015 on the file of the Judicial First Class Magistrate Court, Kolencherry are quashed. ## **SD/-** ## **RAJA VIJAYARAGHAVAN V., JUDGE** IAP **//TRUE COPY// P.A. TO JUDGE** Crl.MC.No. 5318 of 2016 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 1256/2015 OF KUNNATHUNADU POLICE STATION.** **ANNEXURE A2 TRUE COPY OF THE FINAL REPORT IN CRIME NO. 1256/2015 OF KUNNATHUNAD POLICE STATION.** **RESPONDENTS' EXHIBITS:** NIL