High Court of KeralaSingle JudgeThe petition is allowed; final report and all f...

Saji Job and others v. State of Kerala

Case / Petition Number:CRL.M.C.No.6520 of 2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Babu
Judgment Date
2024-05-30
Court Decision / Holding
Crl.M.C. allowed. All further proceedings in CC No.422/2019 on the file of the Judicial First Class Magistrate, Perumbavoor, stand quashed.
Final Disposition
The petition is allowed; final report and all further proceedings in CC No.422/2019 are quashed; FIR 584/2019 stands set aside insofar as the petitioners are concerned, subject to standard criminal procedure for other co-accused not before the court at present.

Parties to the Case

Appellants / Petitioners

  • FR. SAJI JOB
  • BINU PAUL
  • C.C.SUNNY
  • SAJEEV M.JACOB
  • JAIN MATHEW
  • DILEEP VARGHESE
  • SACHU SAJI
  • PAUL VARGHESE
  • ANIL IYPE
  • M.M.GEORGE
  • SANAL AVARACHAN
  • JIBY VARGHESE
  • JOHN T.BABY
  • LINOSH PAUL
  • THAMPI KURIAKOSE
  • P.K.CHACKO
  • P.K.JOY PARVELIKUDY
  • MANOJ BABY
  • BABU VARKEY
  • MARY ELIAS
  • ANU ELIYAS
  • PAUL T.BABY
  • RAJU MATHAI SRAMBIKUDY
  • SHAJU K.P.
  • RAJU
  • ROY MATHAI
  • RENO KURIAKOSE
  • P.V.KURIAN
  • SABU C.J.
  • P.T.RAJU
  • Y.JOHNY
  • MATHEW
  • SHIJIMON PARVELIKUDY
  • T.K.ELDHO THOTTATHIYAN
  • JOHNY P.K. PALACKAPPILLI
  • C.O.KURIAKOSE
  • OUSEPH PAULOSE
  • V.P.PAPPACHAN
  • REJI PAUL
  • P.J.ELIAS PATHICKAL
  • SHAJI PATHROSE
  • BIJU C.V.
  • K.V.THANKACHAN
  • C.V.ELDHOSE
  • BIJU BABY
  • SAJU P.M.
  • V.V.AVARACHAN
  • C.POULOSE
  • BESLIN T.BENNY
  • K.V.PAULOSE
  • RAJEESH T.CHACKO
  • ELDHOSE VARGHESE
  • K.P.GEORGE
  • WILSON
  • P.C.JOHNSON
  • ELDHO P.T.
  • C.K.SUNNY
  • BASIL BAIJU
  • SUSAMMA MATHEW
  • C.K.LASSAR
  • MARIAMMA KURIAKOSE
  • JIJI THOMAS
  • SANITHA C.KURIAKOSE
  • ELDHOSE
  • ELDHOSE K.I.
  • MINI JOY
  • P.K.BABU
  • LIJO P.K.
  • N.T.JOY NELLADITHEKKETHIL

Respondents

  • STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
  • SUB INSPECTOR OF POLICE KURUPPAMPADY POLICE STATION, PERUMBAVOOR
  • FR.ELDHO KURIAKOSE AGED 32 YEARS S/O.KURIAKOSE, PADINJAREKUDY VEETTIL, NELLADU KARA, VICAR, PERUMBAVOOR BATHEL ORTHODOX CHURCH, NORTH MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK

Legal Representation & Advocates

Counsels for Petitioners

  • • SAJI VARGHESE KAKKATTUMATTATHIL
  • • BIJU C ABRAHAM
  • • P.P.RAJESH(K/000420/1998)

Counsels for Respondents

  • • M.G.JEEVAN
  • • BILAL NIAMATHULLA
  • • SANIYA JOSE MAMPILLY
  • • PUBLIC PROSECUTOR SRI G SUDHEER

Case Synopsis & Summary

This is a Criminal Miscellaneous Case (Crl.M.C. No. 6520 of 2021) filed before the Kerala High Court challenging FIR No.584/2019 registered at Perumbavoor Police Station and the consequent final report in CC No.422/2019 before the Judicial First Class Magistrate, Perumbavoor. The petitioners, 69 in number, including the named petitioners such as FR. Saji Job, Binu Paul, C.C. Sunny, Sajeev M. Jacob, Jain Mathew and others, are accused in the magistrate’s case along with others. Respondents include the State represented by the Public Prosecutor, the Sub-Inspector of Police, Kuruppampady, and Fr. Eldho KuriaKose (the 3rd respondent). The core issue is whether the final report and proceedings arising from FIR 584/2019 can be quashed, given allegations of offences under IPC sections 143, 147, 341, 447, 506, 188 and 294(b) read with 149 IPC, centering on a church dispute at Bethel Suloko Cathedral Church, Perumbavoor, including an injunction order (O.S.31/2018) that the petitioners allegedly violated. The court examines whether the prosecution established unlawful assembly, common object, and knowledge of the order; whether Section 188 IPC is applicable to civil injunctions; and whether the proceedings constitute abuse of process warranting quashing. Ultimately, the court allows the Crl.M.C. and quashes all further proceedings in CC 422/2019, holding no material to sustain the charged offences beyond mere assembly.

Provisions of Law Cited

IPC Sec. 141 (Unlawful Assembly)IPC Sec. 143IPC Sec. 147IPC Sec. 341IPC Sec. 447IPC Sec. 506IPC Sec. 188 (Disobedience to order duly promulgated by public servant)IPC Sec. 294(b) read with 149IPC Sec. 149Section 195 Cr.P.C.

Legal Doctrines & Maxims

  • Mens rea (mental element)
  • Common object (unlawful assembly) doctrine
  • Abuse of process of the court
  • Knowledge of order as an essential ingredient for Section 188 IPC
  • Disobedience of civil orders vs. public orders distinction

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners emphasized that Annexure-A3 final report does not disclose the offences charged; the dispute within the parishioners of Bethel Suloko Cathedral Church led to the FIR; they assembled at the church only for prayers and did not possess mens rea to commit any offence; lack of specific ingredients for unlawful assembly in the final report; absence of evidence of common object; no showing that they had knowledge of the order in O.S.31/2018 or the injunctive prohibition; hence, Section 141/149 IPC offences could not be established; Section 188 IPC does not apply to civil court orders; the remedy is contempt for civil injunction violations; the prosecution’s broad allegations are unreliable and the proceeding is an abuse of process; quashing is warranted under Manik Taneja and related authority.

Contentions of Respondents

The respondents contended that the petitioners themselves formed an unlawful assembly and had a common object to obstruct the de facto complainant and to commit offences within five or more persons; the final report contained materials to show the ingredients of unlawful assembly and offences under Sections 143, 147, 149, 188, 294(b), 447 and 506 IPC; knowledge of the order and the assembly’s intent was inferred from the circumstances and the actions of the petitioners; hence, the prosecution could establish the offences; Section 188 IPC was applicable to the order issued by a public authority for public purposes, and not to civil proceedings; the bar under Section 195 Cr.P.C. should be navigated with formal complaint; thus, the continued prosecution should not be quashed.

Cited Precedents (12)

Case NameCitationTreatmentExplanation
Govinda Kunjuraman Asari v. Krishnan Nair Chellappan Nair1952 KLT 547PositiveHeld that Section 188 IPC applies to orders promulgated by public functionaries for public purposes; not to Civil Court injunction orders; disobedience of civil injunctions is a contempt matter.
Azizurrahman v. State of Uttar PradeshCr Crimes-1986-1-339PositiveObserved that willful disobedience of injunctions is excluded from Section 188 IPC.
In re Sundara Mudaliar and OthersAIR 1937 Madras 535PositiveKnowledge of the order is an essential ingredient for Section 188 IPC.
Lalchand v. EmperorAIR 1966 Sind 93PositiveAffirmed knowledge of the order as an essential element.
Bishan Datt and another v. EmperorAIR 1948 Allahabad 50PositiveKnowledge of the order required for Section 188 IPC.
Dhanisha v. Rakhi N. Raj2012 (2) KHC 111 (DB)PositiveObscenity test under Section 294(b) discussed; words must arouse sexual impure thoughts.
Sajan C.K. v. State of Kerala2019 KHC 528PositiveObscenity interpretation for Section 294(b) requiring arousal of sexual thoughts.
Sangeetha Lakshmana v. State of Kerala2008(1) KHC 812PositiveObscenity threshold discussed; abusive/humiliating words alone not necessarily obscene.
Latheef v. State of Kerala2014 (2) KLT 987PositiveAbusive words alone not sufficient for obscenity.
Santhosh Kumar v. State of Kerala2020(5) KLT 322PositiveBar under Section 195 Cr.P.C.; cognizance in a case of 188 IPC requires a formal complaint by the public servant.
Manik Taneja v. State of Karnataka2015 (7) SCC 423PositiveQuashing of prosecutions when chances of conviction are bleak may be appropriate to prevent abuse of process.
Govinda Kunjuraman Asari v. Krishnan Nair Chellappan Nair1952 KLT 547PositiveSame as above; foundational authority for the application of 188 IPC to public functionaries.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 30[TH] DAY OF MAY 2024 / 9TH JYAISHTA, 1946 ``` ``` CRL.MC NO. 6520 OF 2021 ``` ``` CRIME NO.584/2019 OF Perumbavoor Police Station, ``` ``` Ernakulam ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN CC NO.422 OF 2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS I ,PERUMBAVOOR PETITIONER/S: ``` - **`1 FR. SAJI JOB AGED 44 YEARS S/O.JOB, MUNDACKAL HOUSE, KILIKULAM, AYIRAPURAM VILLAGE, ERNAKULAM DISTRICT.`** - **`2 BINU PAUL S/O.POULOSE, MANJOOR HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`3 C.C.SUNNY S/O.CHACKO, CHIRAPPURATH HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`4 SAJEEV M.JACOB S/O.JACOB, MUKKANAMCHERY HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`5 JAIN MATHEW S/O.MATHEW, THEKKEDATH HOUSE, MAZHUVANNOOR VILLAGE, MAZHUVANNOOR KARA, ERNAKULAM DIST.`** - **`6 DILEEP VARGHESE S/O.VARGHESE, PARVELIKUDY HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`7 SACHU SAJI S/O.SAJI, MUKKANAMCHERY, PATTAL, PERUMBAVOOR, ERNAKULAM DIST.`** - **`8 PAUL VARGHESE S/O.VARGHESE, THADATHIL HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`9 ANIL IYPE S/O.IYPE, THOMBRA HOUSE, ONNAMILE, PERUMBAVOOR, ERNAKULAM DIST.`** Crl.M.C.No.6520 of 2021 ..2.. - **`10 M.M.GEORGE`** - **`S/O.MATHAI, MUTTUNVANCHERY HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`11 SANAL AVARACHAN S/O.AVARACHAN, THOMBRA HOUSE, THURUTHUPLI, PERUMBAVOOR, ERNAKULAM DIST.`** - **`12 JIBY VARGHESE AGED 42 YEARS S/O.VARGHESE, PATHICKAL HOUSE, ALLAPRA, PERUMBAVOOR, ERNAKULAM DIST.`** - **`13 JOHN T.BABY S/O.BABY, THEKKEKKADAN HOUSE, ONNAM MILE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`14 LINOSH PAUL S/O.PAULOSE, KOONEKKADAN HOUSE, ONNAM MILE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`15 THAMPI KURIAKOSE S/O.KURIAKOSE, KUNEKKADAN HOUSE, PULLUVAZHY, PERUMBAVOOR, ERNAKULAM DIST.`** - **`16 P.K.CHACKO S/O.KURIAN, PARVELIKUDY HOUSE, PATTAL, PERUMBAVOOR, ERNAKULAM DIST.`** - **`17 P.K.JOY PARVELIKUDY HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`18 MANOJ BABY S/O.BABY, EDATHY VEEDU HOUSE, IRINGOLE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`19 BABU VARKEY S/O.VARGHESE, PARVELIKUDY HOUSE, PATTAL, PERUMBAVOOR, ERNAKULAM DIST.`** - **`20 MARY ELIAS`** - **`W/O.ALIAS, KUNJITTYKUDY, PERUMBAVOOR, ERNAKULAM DIST.`** - **`21 ANU ELIYAS D/O.ALIAS, KUNJITTIKUDY, PERUMBAVOOR, ERNAKULAM DIST.`** - **`22 PAUL T.BABY S/O.BABY, THEKKEKKARA HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`23 RAJU MATHAI SRAMBIKUDY, IRINGOLE, PERUMBAVOOR, ERNAKULAM`** Crl.M.C.No.6520 of 2021 ..3.. ## **`DIST.`** - **`24 SHAJU K.P. S/O.POULOSE, KALARICKAL HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`25 RAJU S/O.CHAKKUMKATTIL HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`26 ROY MATHAI S/O.MATHAI, KALLINKAL HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`27 RENO KURIAKOSE S/O.KURIAKOSE, MARANGATTU HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`28 P.V.KURIAN S/O.VARGHESE, PATHICKAL HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`29 SABU C.J. S/O.JOSEPH, PARVELIKUDY HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`30 P.T.RAJU S/O.THOMAS, PARVELIKUDY HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`31 Y.JOHNY S/O.ULAHANNAN, PUTHENKUDY, PERUMBAVOOR, ERNAKULAM DIST.`** - **`32 MATHEW S/O.POULOSE, VEENAMALIL HOUSE, IRINGOLE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`33 SHIJIMON PARVELIKUDY HOUSE, PATTAL, PERUMBAVOOR, ERNAKULAM DIST.`** - **`34 T.K.ELDHO THOTTATHIYAN HOUSE, MARUTHUKAVALA, PERUMBAVOOR, ERNAKULAM DIST.`** - **`35 JOHNY P.K. PALACKAPPILLI, PERUMBAVOOR, ERNAKULAM DIST.`** - **`36 C.O.KURIAKOSE CHIRACKAKUDY HOUSE, ERNAKULAM DIST.`** - **`37 OUSEPH PAULOSE S/O.POULOSE, CHIRACKAKUDY, VATTAKATTUPADY, PERUMBAVOOR, ERNAKULAM DIST.`** Crl.M.C.No.6520 of 2021 ..4.. - **`38 V.P.PAPPACHAN S/O.BABU, VEENAMALIL HOUSE, IRINGOLE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`39 REJI PAUL S/O.POULOSE, VEENAMALIL HOUSE, IRINGOLE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`40 P.J.ELIAS PATHICKAL HOUSE, ALLAPRA, PERUMBAVOOR, ERNAKULAM DIST.`** - **`41 SHAJI PATHROSE S/O.PATHROSE, NADACKAL HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`42 BIJU C.V. S/O.VARKEY, CHELAMBIKODAN HOUSE, VATTAKATTUPADY, PERUMBAVOOR, ERNAKULAM DIST.`** - **`43 K.V.THANKACHAN KATHANANDAN HOUSE, THODAPARAMBU, KURUPPAMPADY, ERNAKULAM DIST.`** - **`44 C.V.ELDHOSE CHILAMBIKODAN HOUSE, VATTAKKATTUPADY, PERUMBAVOOR, ERNAKULAM DIST.`** - **`45 BIJU BABY PALLIPADAN HOUSE, KALACHANTHA, PERUMBAVOOR, ERNAKULAM DIST.`** - **`46 SAJU P.M. PALACKAL HOUSE, PATTAL CLUB ROAD, PERUMBAVOOR, ERNAKULAM DIST.`** - **`47 V.V.AVARACHAN VEENAMALIL, IRINGOLE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`48 C.POULOSE CHIRAPURATH HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`49 BESLIN T.BENNY S/O.BENNY, PALLIPADAN HOUSE, CHELAMATTOM, PERUMBAVOOR, ERNAKULAM DIST.`** - **`50 K.V.PAULOSE S/O.VARGHESE, KOLLAMKUDY, ONNAM MILE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`51 RAJEESH T.CHACKO S/O.CHACKO, THINDIYIL HOUSE, VATTAKATYUPADY, PERUMBAVOOR, ERNAKULAM DIST.`** Crl.M.C.No.6520 of 2021 ..5.. - **`52 ELDHOSE VARGHESE S/O.VARGHESE, MUNDACKAL HOUSE, VATTAKKATTUPADY, PERUMBAVOOR, ERNAKULAM DIST.`** - **`53 K.P.GEORGE KALARICKAL HOUSE, POOPANI, PERUMBAVOOR, ERNAKULAM DIST.`** - **`54 WILSON`** - **`S/O.MATHAI, PALLIPADAN HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`55 P.C.JOHNSON PATHICKAL HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`56 ELDHO P.T.`** - **`PALLIPADAN, PERUMBAVOOR, ERNAKULAM DIST.`** - **`57 C.K.SUNNY ERULI HOUSE, IRINGOLE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`58 BASIL BAIJU S/O.BAIJU, CHILAMBIKODAN HOUSE, ALLPRA, PERUMBAVOOR, ERNAKULAM DIST.`** - **`59 SUSAMMA MATHEW W/O.MATHEW, PATHICKAL HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`60 C.K.LASSAR CHELAKKATTU HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`61 MARIAMMA KURIAKOSE W/O.KURIAKOSE, PARVELIKUDY, PATTAL, PERUMBAVOOR, ERNAKULAM DIST.`** - **`62 JIJI THOMAS S/O.THOMAS, CHERAPPARAMBIL HOUSE, ALLAPRA, PERUMBAVOOR, ERNAKULAM DIST.`** - **`63 SANITHA C.KURIAKOSE D/O.KURIAKOSE, CHAVARAMPLACKAL HOUSE, MUDAKKUZHA, KURUPPANPADY, (ROMAI, FINANCIAL MANAGER), ERNAKULAM DIST.`** - **`64 ELDHOSE`** - **`S/O.KUNJU, PUTHUKUNNATHU HOUSE, KARIPPELIPADY, NELLIMOLAM, PERUMBAVOOR, ERNAKULAM DIST.`** - **`65 ELDHOSE K.I. S/O.ITTEERA, KAKKASSERY HOUSE, PAPPANPADY, PERUMBAVOOR, ERNAKULAM DIST.`** - **`66 MINI JOY`** Crl.M.C.No.6520 of 2021 ..6.. ``` CHACKALAYIL HOUSE, IRINGOLE, PERUMBAVOOR, ERNAKULAM DIST. ``` - **`67 P.K.BABU PALLIPADAN HOUSE, PERUMBAVOOR, ERNAKULAM DIST.`** - **`68 LIJO P.K. PAREKKARA HOUSE, ALLAPRA, PERUMBAVOOR, ERNAKULAM DIST.`** - **`69 N.T.JOY NELLADITHEKKETHIL HOUSE, MARUTHIKAVALA, PERUMBAVOOR, ERNAKULAM DIST.`** ``` BY ADVS. SAJI VARGHESE KAKKATTUMATTATHIL BIJU C ABRAHAM P.P.RAJESH(K/000420/1998) ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.`** - **`2 SUB INSPECTOR OF POLICE KURUPPAMPADY POLICE STATION, PERUMBAVOOR.`** - **`3 FR.ELDHO KURIAKOSE AGED 32 YEARS S/O.KURIAKOSE, PADINJAREKUDY VEETTIL, NELLADU KARA, VICAR, PERUMBAVOOR BATHEL ORTHODOX CHURCH, NORTH MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK. BY ADVS.`** ``` M.G.JEEVAN BILAL NIAMATHULLA SANIYA JOSE MAMPILLY BY PUBLIC PROSECUTOR SRI G SUDHEER ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.6520 of 2021 **==> picture [20 x 9] intentionally omitted <==** **“C.R.“** ## **K.BABU, J** **------------------------------------------------Crl.M.C. No.6520 of 2021 ------------------------------------------------Dated this the 30[th] day of 2024** ## **O R D E R** The petitioners who are accused Nos. 1 to 69 respectively in C.C.No.422/2019 on the file of the Judicial First Class Magistrate Court-I, Perumbavoor seek to quash the final report and all further proceedings pursuant to the registration of FIR No.584/2019 of Perumbavoor Police Station. The petitioners are alleged to have committed offences punishable under Sections 143, 147, 341, 447, 506, 188 & 294(b) r/w Section 149 of the Indian Penal Code. 2. The matter relates to a church namely, Bethel Suloko Cathedral Church, Perumbavoor. Based on the complaint filed by respondent No.3, the Vicar of the Crl.M.C.No.6520 of 2021 **==> picture [20 x 9] intentionally omitted <==** Church, Perumbavoor Police registered FIR No.584/2019 alleging the aforesaid offences. The prosecution alleges the following:- 3. Respondent No.3, the defacto complainant came to the church on 10.03.2019 at about 7.30 AM. The petitioners who assembled there obstructed respondent No.3. The Munsiff’s Court, Perumbavoor, had issued prohibitory injunction in favour of the _de facto_ complainant as per order in I.A.No.95 of 2018 in O.S.No.31 of 2018. The petitioners violated the order of injunction passed by the Munsiff’ Court. Accused No.11 showered abusive words towards the women assembled there. Accused No.4 intimidated the _de facto_ complainant. The petitioners themselves formed an unlawful assembly on the premises of the church. 4. I have heard the learned counsel for the petitioners, the learned counsel appearing for respondent No.3 and the learned Public Prosecutor. Crl.M.C.No.6520 of 2021 ..9.. 5. The learned counsel for the petitioners submitted that Annexure-A3 Final Report does not reveal the offences alleged. It is further submitted that the factional dispute among the parishners of the church resulted in the registration of the crime. The petitioners assembled in the Church only to offer prayers. They never had the _mens rea_ for the commission of the offences. The prosecution failed to establish the ingredients of the offence of unlawful assembly. 6. The learned counsel for respondent No.3 submitted that there are sufficient materials to show that the petitioners themselves formed an unlawful assembly and committed the offences alleged. It is submitted that the members of the unlawful assembly had a common intention for the commission of the offences. 7. The learned Public Prosecutor also submitted that the prosecution could establish all the ingredients of the offences alleged. Crl.M.C.No.6520 of 2021 ..10.. 8. The prosecution essentially alleges the offences punishable under Sections 143 & 147 r/w Section 149 IPC. It is the case of the prosecution that the petitioners themselves formed an unlawful assembly. 9. Unlawful assembly as defined in Section 141 of the IPC is an assembly of five or more persons if their common object is – 1.to overawe by criminal force (a)the Central Government, or (b) the State Government, or - (c) the Legislature, or (d) any public servant in the exercise of lawful power; 2.to resist the execution of law or legal process; 3.to commit mischief, criminal trespass, or any other offence; 4.by criminal force; (a)to take or obtain possession of any property, or (b)to deprive any person of any incorporeal right, or (c) to enforce any right or supposed right; Crl.M.C.No.6520 of 2021 **==> picture [26 x 9] intentionally omitted <==** 5.by criminal force to compel any person-- (a)to do what he is legally bound to do, or (b)to omit what he is legally entitled to do. The foundation of this Section is the combination of five or more persons, united in the purpose of committing a criminal offence, and the consensus of purpose is itself an offence distinct from the criminal offence which these persons agree and intend to commit. The law does not declare the mere assemblage of men, however large illegal. The essence of the offence of unlawful assembly is the common object of the persons forming the assembly. Whether the object is in their minds when they come together or whether it occurs to them afterwards, is not material. But it is necessary that the object should be common to the persons who comprise the assembly. 10. The final report does not specifically state that the petitioners/ accused have united in the purpose of committing the criminal offences alleged. There is only a vague and general allegation that the petitioners Crl.M.C.No.6520 of 2021 **==> picture [26 x 9] intentionally omitted <==** assembled on the premises of the church and prevented CW1 and some other parishners. The prosecution failed to place any materials to show that the petitioners used any criminal force with intent to prevent CW1 to offer prayers in the church. 11. On a perusal of the Final Report, there is no specific mention of any of the ingredients to constitute the offence of unlawful assembly. There are also no specific allegations to establish common object, the essence of the offence of unlawful assembly. Therefore, I am of the view that the acts do not satisfy the ingredients of the offence of unlawful assembly. The prosecution failed to establish the ingredients of unlawful assembly. The offences punishable under Sections 143, 147 and 149 are, therefore, not attracted. 12. The prosecution further alleges the offence under Section 188 of the Indian Penal Code. Section 188 reads thus:- Crl.M.C.No.6520 of 2021 ..13.. ## **Section 188: Disobedience to order duly** **promulgated by public servant.--** Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 13. The prosecution allegation is that the petitioners violated the prohibitory order issued by Munsiff’s Court, Perumbavoor in I.A.No.95/2018 in Crl.M.C.No.6520 of 2021 **==> picture [26 x 9] intentionally omitted <==** O.S.No.31 of 2018. The prosecution has not placed any material as to whether the petitioners are parties to the litigation. The final report does not contain anything to show that the petitioners had knowledge of the order allegedly violated. 14. Section 188 of IPC applies to order made by public functionaries for public purposes and not to an order made in civil suit between the parties. Disobedience of a temporary injunction issued by the Civil Court will not therefore come within the purview of this Section. This Court in _**Govinda Kunjuraman Asari v. Krishnan Nair Chellappan Nair**_ [1952 KLT 547] considered this question and held that obviously, the Section applies to orders promulgated by public servants in respect of matters relating to safety, health or convenience of the public, or in other words, to orders promulgated by public functionaries for public purposes. The Court specifically held that the penal Section does Crl.M.C.No.6520 of 2021 **==> picture [26 x 9] intentionally omitted <==** not apply to an order passed by a Civil Court in respect of matters affecting the parties to a suit and in such cases the proper remedy for the disobedience of such an order is committal for contempt. The Allahabad High Court in _**Azizurrahman v. State of Uttar Pradesh**_ [Crimes-19861-339] observed that willful disobedience of an order of injunction is excluded from the scope of Section 188 of IPC. 15. Yet another aspect that requires consideration is the bar under Section 195 Cr.P.C. as far as the offence under Section 188 IPC is concerned. As per Section 195 (1)(a) of Cr.P.C., a Court can take cognizance of the offence under Section 188 IPC only on a formal complaint filed by the public servant himself. This view is fortified by the decisions in _**Govinda Kunjuraman Asari**_ (Supra) and _**Santhosh Kumar v. State of Kerala**_ [2020(5) KLT 322]. Crl.M.C.No.6520 of 2021 **==> picture [26 x 9] intentionally omitted <==** 16. To attract the offence under Section 188 IPC knowledge of the order by the offenders is also an essential ingredient. It is not enough in cases under Section 188 to prove that the order has been duly promulgated and the accused must have the knowledge of the order which he is charged with disobeying. [See: _**In re Sundara Mudaliar and Others**_ [AIR 1937 Madras 535], _**Lalchand v. Emperor**_ [AIR 1966 Sind 93] and _**Bishan Datt and another v. Emperor**_ [AIR 1948 Allahabad 50]. 17. Even if it is assumed that the penal Section 188 IPC is there, the prosecution failed to place materials to show that the petitioners had the knowledge of the order, the disobedience of which has been charged. 18. Resultantly, I am of the view that there cannot be any prosecution under Section 188 IPC against the petitioners. Crl.M.C.No.6520 of 2021 **==> picture [26 x 9] intentionally omitted <==** 19. The Final Report further alleges that accused No.11 showered abusive words towards certain women assembled there. The specific words allegedly used by accused No.11 has not been placed in the charge sheet. It is trite that to attract offence under Section 294(b), the words uttered must be obscene and it must be to the annoyance of others and it must have been uttered in or near any public place. The meaning of the word `obscenity’ used in Section 294 IPC has the meaning explained in Sections 292 and 293 of IPC. [See: _**Dhanisha v. Rakhi N. Raj**_ [2012 (2) KHC 111 (DB)] 20. This Court in _**Latheef v. State of Kerala**_ [2014 (2) KLT 987] held that abusive or humiliating or defamatory words will not as such amount to obscenity as defined under the law. This Court held that in order to satisfy the test of obscenity to attract the offence under Section 294(b), the words alleged to have been uttered must be capable of arousing sexually impure thoughts in Crl.M.C.No.6520 of 2021 **==> picture [26 x 9] intentionally omitted <==** the minds of its hearers [vide: _**Sajan C.K. v. State of Kerala**_ [2019 KHC 528] & _**Sangeetha Lakshmana v. State of Kerala**_ [2008(1) KHC 812]. The Final Report in the present case does not contain the ingredients of offence under Section 294(b) IPC. 21. The prosecution also alleges offences under Sections 341 and 447 of the IPC. The Final Report does not specifically state that a particular accused wrongfully restrained CW1. There is also no allegation that the accused intentionally obstructed the charge witness from proceeding further. 22. As far as the offence under Section 447 IPC is concerned, the prosecution has to establish that the petitioners entered into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unalwfully remained there with intent Crl.M.C.No.6520 of 2021 **==> picture [26 x 9] intentionally omitted <==** thereby to intimidate, insult or annoy any such person, or with intent to commit an offence. The Final Report does not contain any such allegations. 23. Finally, the prosecution also alleges offence under Section 506 of IPC. The ingredients of the offence under Section 506 are absent in the Final Report. 24. The learned counsel for the petitioners further submitted that the allegations are trivial in nature. The learned counsel for the petitioners relying on Section 95 of the Indian Penal Code submitted that the overt acts alleged, even if proved, only reflect no harm to anybody or if any harm was caused, the harm was so light that no person of any ordinary sense and temper would complain of such harm. The alleged incidents, even if proved, are only negligible wrongs or trivial offences. The learned counsel for the petitioners, relying on the judgment in _**Manik Taneja vs. State of Karnataka**_ (2015 (7) SCC 423), submitted that where, in the opinion of the Court, Crl.M.C.No.6520 of 2021 **==> picture [26 x 9] intentionally omitted <==** the chances of ultimate conviction are bleak, and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may quash the proceeding even though it may be at a preliminary stage. 25. I am of the considered view that the continuation of the prosecution against the petitioners is an abuse of the process of the Court. I am of the further view that the Final Report does not establish the ingredients of the offences alleged. Resultantly, the Crl.M.C. is allowed. All further proceedings in C.C.No.422 of 2019 on the file of the Judicial First Class Magistrate Court-I, Perumbavoor stand quashed **.** **Sd/K.BABU JUDGE** kkj Crl.M.C.No.6520 of 2021 ..21.. ## **`APPENDIX OF CRL.MC 6520/2021`** ``` PETITIONER ANNEXURES Annexure A1CERTIFIED COPY OF THE COMPLAINT SUBMITTED BY THE 3RD RESPONDENT. Annexure A2TRUE COPY OF THE FIR IN CRIME NO.584/2019 SUBMITTED BY THE 2ND RESPONDENT. Annexure A3TRUE COPY OF THE FINAL REPORT IN C.C.NO.422/2019 ON THE FILES OF THE JFCM COURT-1, PERUMBAVOOR. ```