Sali P. Mathai v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945 ``` ``` CRL.MC NO. 6009 OF 2022 ``` ``` CRIME NO.173/2022 OF Manjeri Police Station, Malappuram AGAINST THE ORDER/JUDGMENT CC 321/2022 OF CHIEF JUDICIAL MAGISTRATE ,MANJERI ``` ## **`PETITIONER/S:`** ``` SALI P. MATHAI AGED 54 YEARS S/O. MATHAI, PULIMANACKAL HOUSE, MANAKKADU P.O., THODUPUZHA TALUK, IDUKKI DISTRICT - 685 608, PIN - 685608 BY ADVS. GEORGE MATHEW PRAVEEN S. SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI DIPU JAMES M.D.SASIKUMARAN ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031, PIN - 682031 2THE STATION HOUSE OFFICER MANJERI POLICE STATION MALAPPURAM DISTRICT - 676121 THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - 682 031, PIN - 682031 3THE SUB INSPECTOR OF POLICE MANJERI POLICE STATION MALAPPURAM DISTRICT - 676121 THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - 682 031, PIN - 682031 4SREELATHA AGED 41 YEARS SUB DIVISIONAL ENGINEER, BHARAT SANCHAR NIGAM ``` Crl.M.C.No.6009 of 2022 **==> picture [20 x 9] intentionally omitted <==** ``` LTD.,(BSNL) BSNL OFFICE, MANJERI, MALAPPURAM DISTRICT - 676 121 RESIDING AT GARNET SEVEN, PATTARKULAM, MANJERI, MALAPPURAM DISTRICT - 676 121, PIN - 676121 ``` ``` BY ADV MATHEWS K.PHILIP KALAPPURACKAL PHILIPOSE ``` ## **`OTHER PRESENT:`** ``` MATHEWS K PHILIP,SC NHAI, REKHA ,SR PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.6009 of 2022 ..3.. ## **K.BABU, J** . -------------------------------------Crl.M.C.No.6009 of 2022 --------------------------------------Dated this the 30[th] day of October, 2023 ## **O R D E R** The petitioner challenges the Final Report and all further proceedings in C.C.No.321 of 2022 on the file of the Chief Judicial Magistrate’s Court, Manjeri. The petitioner faces charges under Section 427 of the Indian Penal code and Section 3(2)(e) of the Prevention of Damages to Public Property Act, 1984, (hereinafter referred to as ‘the PDPP Act’ for short). 2. The petitioner is a registered A Class Contractor undertaking works awarded by the Government and other agencies in civil, electrical and mechanical fields. He was awarded works for replacing the old aged AC plates with Dl-pipes by the Kerala Water Authority [KWA]. Pursuant to the Award, the petitioner Crl.M.C.No.6009 of 2022 ..4.. undertook the work of replacement of pipes for which he had to dig the soil on the public road leading to the damage of underground cables drawn by the BSNL causing a loss to the tune of Rupees Eleven Lakhs. It is alleged that the petitioner negligently undertook the work using JCB and other machineries for laying pipelines for KWA. 3. The case of the petitioner is that he had no indication that cables were drawn underneath the soil where he dug. 4. There is no indication in the Final Report that the petitioner had the previous knowledge regarding the existence of underground cables drawn by the BSNL at the scene of occurrence. The petitioner is alleged to have committed offences punishable under Sections 427 and Section 3(2)(e) of the PDPP Act. It is profitable to extract the penal provisions. The offence of mischief punishable Crl.M.C.No.6009 of 2022 ..5.. ## under Section 427 is defined under Section 425 of the IPC which reads thus:- “425. Mischief.─ Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".” ## 5. Section 3 of the PDPP Act reads thus:- **“3. Mischief causing damage to public property** .- (1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine. (2)Whoever commits mischief by doing any act in respect of any public property being— (a.)any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy; (b).any oil installations; Crl.M.C.No.6009 of 2022 ..6.. c.any sewage works; d.any mine or factory; e.any means of public transportation or of telecommunications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine: Provided that the Court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months.“ 6. Mischief as defined under Section 3(2)(e) of the PDPP Act shall have the same meaning as in Section 425 of the Indian Penal Code by virtue of Section 2(a) of the PDPP Act. The opening words of Section 425 IPC viz ‘whoever with intent to cause, or knowing that he is likely to cause’ suggest the requirement of _‘mens rea’_ to attract the penal provision. 7. A fundamental principle of criminal jurisprudence with regard to the liability of an accused is the element of Crl.M.C.No.6009 of 2022 **==> picture [20 x 9] intentionally omitted <==** _mens rea_ . On the principles of _actus reus_ and _mens rea_ , the learned author Sri.Glanville Williams in the 'Textbook of Criminal Law' [Third Edition, Dennis.J.Baker, page 95] comments thus: “The mere commission of a criminal act (or bringing about the state of affairs that the law provides against) is not enough to constitute a crime, at any rate in the case of the more serious crimes. These generally require, in addition, some element of wrongful intent or other fault. Increasing insistence upon this fault element was the mark of advancing civilization.” 8. On the principles of Criminal Liability, the learned author Sri.K.D. Gaur in his book Criminal Law [Lexis Nexis, Butterworths, page 37] explains thus: “Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was Crl.M.C.No.6009 of 2022 ..8.. accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively.” 9. I have gone through the entire materials placed before the Court by the prosecution. There is not even an iota of material or evidence to come to a conclusion that the petitioner had any previous knowledge regarding the cables drawn beneath the soil where he was entrusted with responsibility to dig the soil. On the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 Cr.P.C., the Apex Court in _**State of Haryana and Others v. Bhajan Lal and Others**_ (1992 Supp. (1) 335) held thus:- **“102.** In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which Crl.M.C.No.6009 of 2022 ..9.. we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- Crl.M.C.No.6009 of 2022 ..10.. cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 10. The present case is fully covered by category (3) as enumerated in _**State of Haryana**_ and I am of the view that in the present facts and circumstances, the Crl.M.C.No.6009 of 2022 **==> picture [26 x 9] intentionally omitted <==** criminal proceedings consequent to the Final Report in C.C.No.321 of 2022 of the Chief Judicial Magistrate’s Court, Manjeri, are liable to be quashed. I order so. 11. The learned counsel appearing for the 4[th] respondent prayed for making it clear that the order passed by this Court will not stand in the way of the BSNL initiating proceedings against the petitioner under the civil law. I make it clear that the findings recorded in this proceedings will have relevance only in accordance with Sections 40 to 43 of the Indian Evidence Act. The Crl.M.C. is ordered accordingly. Sd/- **K.BABU, JUDGE** kkj Crl.M.C.No.6009 of 2022 ..12.. ## **`APPENDIX OF CRL.MC 6009/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1. TRUE COPY OF WORK ORDER NO. SE/PHC/MPM/DB1/587/2020 DTD.16.10.2020 Annexure A2. TRUE COPY OF COMPLAINT DTD. 11.03.2022 SUBMITTED BY PETITIONER WITH DISTRICT POLICE CHIEF (DPC), MALAPPURAM Annexure A3CERTIFIED COPY OF FIRST INFORMATION REPORT ALONG WITH STATEMENT DTD. 04.03.2022 IN CR. NO. 173 OF 2022 OF MANJERI POLICE STATION IN MALAPPURAM DISTRICT Annexure A4CERTIFIED COPY OF CHARGESHEET ```