Samgi Mathew v. State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA, 1944 ``` ``` CRL.MC NO. 2182 OF 2022 AGAINST CC No.596/2017 BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE NO.I, PATHANAMTHITTA; CRIME NO.236/2017 OF ARANMULA POLICE STATION ``` ## **`PETITIONER/ACCUSED:`** ``` SAMGI MATHEW, AGED 70 YEARS S/O V.M MATHEW, VAIRISSERIL HOUSE, EDYARANMULA P.O., ARANMULA, PATHANAMTHITTA DISTRICT, PIN - 689532 ``` ``` BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P. AMAL AMIR ALI ``` ## **`RESPONDENTS/STATE&INVESTIGATING OFFICER:`** - `1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031` ``` 2SUB INSPECTOR OF POLICE, ARANMULA POLICE STATION, ARANMULA, PATHANAMTHITTA DISTRICT, PIN – 689532 ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 2 ``` ``` 3ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD LIMITED ELECTRIC SECTION, KOZHENCHERRY, PATHANAMTHITTA DISTRICT PIN- 689654 BY ADVS SMT.SEENA C. K. - PUBLIC PROSECUTOR SRI. K. ARUNKUMAR – STANDING COUNSEL ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 3 ``` ## **`ORDER`** ``` The petitioner is the accused in Crime No.236/2017 of Aranmula Police Station which is now pending as C.C. No.596/2017 before the Judicial First Class Magistrate Court-I, Pathanamthitta. The offences alleged against the petitioner are under Sections 279 and 427 of the Indian Penal Code. ``` ``` 2. The prosecution case is that on 01.02.2017 the petitioner drove a car bearing registration No.KL-03-Q-TEMP-7192 in a rash and negligent manner had hit a KSEB A type pole on the left side of Thekkemala – Pathanamthitta road and caused damages worth Rs. 35,625/- to the KSEB. Annexure A1 is the FIR which was registered on the basis of a complaint submitted by the third respondent, Assistant Engineer of KSEB and the said complaint is produced as Annexure A1(a). ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 4 ``` ``` After completing the investigation the police submitted Annexure A2 final report for the offences mentioned above. This Crl. MC is filed for quashing all further proceedings pursuant to the same. ``` ``` 3. Heard Sri. Joseph P. Alex, learned counsel appearing for the petitioner, Smt.Seena C. K. learned Public Prosecutor appearing for the State and Sri.K. Arunkumar Standing Counsel appearing for the third respondent. ``` ``` 4. The specific contention put forward by the learned counsel for the petitioner is that, even if all the allegations contained in the Annexure A2 Final Report and the materials placed along with the same, are accepted for its face value no offence under Section 427 of the Indian Penal Code, is attracted. ``` `5. On the other hand learned Public` ``` Prosecutor as well as the Standing Counsel ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 5 ``` ``` appearing for the third respondent would oppose the said contentions. ``` ``` 6. I have gone through the records and heard the contentions raised by either side. The crime was registered on the basis of Annexure A1(a) which is a compliant submitted by the third respondent. On perusal of the same, it is seen that the only allegation is that, the vehicle belonging to the petitioner, hit on a A type pole belonging to the KSEB and thereby, sustained losses. On the basis of the same Annexure A1 FIR was registered and after completing the investigation, Annexure A2 Final Report was submitted. The allegation in Annexure A2 is that, the petitioner drove the vehicle in a rash and negligent manner, and hit on the electric post. Thus, crucial contention raised by the petitioner is that, the said allegation would not make out ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 6 ``` ``` the offence under Section 427 of the Indian Penal Code. The Section 427 of IPC reads as follows: ``` ``` “427. Mischief causing damage to the amount of fifty rupees.— Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punishedwithimprisonmentofeither description for a term which may extend to two years, or with fine, or with both.” ``` ``` 7. It is evident that,the said provision provides for punishment for committing mischief by causing damage for an amount or above fifty rupees. The term mischief is defined under section 425 of IPC is reads as follows: ``` ``` 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”. ``` ``` Explanation 1.—It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 7 ``` ``` Explanation 2.—Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly. ``` ``` Illustrations ``` ``` (a) A voluntarily burns a valuable security belonging to Z intending to cause wrongful loss to Z. A has committed mischief. ``` ``` (b) A introduces water into an ice-house belonging to Z and thus causes the ice to melt, intending wrongful loss to Z. A has committed mischief. ``` ``` (c) A voluntarily throws into a river a ring belonging to Z, with the intention of thereby causing wrongful loss to Z. A has committed mischief. ``` ``` (d) A, knowing that his effects are about to be taken in execution in order to satisfy a debt due from him to Z, destroys those effects, with the intention of thereby preventing Z from obtaining satisfaction of the debt, and of thus causing damage to Z. A has committed mischief. ``` ``` (e) A, having insured a ship, voluntarily causes the same to be cast away, with the intention of causing damage to the under- writers. A has committed mischief. ``` ``` (f) A causes a ship to be cast away, intending thereby to cause damage to Z who has lent money on buttomry on the ship. A has committed mischief. ``` ``` (g)A, having joint property with Z in a horse, shoots the horse, intending thereby to cause wrongful loss to Z. A has committed mischief. ``` ``` (h) A causes cattle to enter upon a field belonging to Z, intending to cause and knowing that he is likely to cause damage to Z’s crop. A has committed mischief. ``` ``` 8. On careful scrutiny of the definition of mischief it can be seen that, in order to treat ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 8 ``` ``` an act as mischief, such act must have been committed by the person, with intention to cause or with a knowledge that he is likely to cause or wrongful loss or damage to public or to any person. Therefore, one of the crucial ingredients is the intention to cause or the knowledge that the act which is being committed by the petitioner is likely to cause damage to the public or to any person. It is evident from the materials placed on record, the vehicle which was allegedly hit on the electric post was a brand new car and under no circumstances it can be assumed that, such vehicle could be intentionally used cause damage to an electric pole, by deliberately hitting on it. ``` ``` 9. Moreover, even as per the allegations in the Final Report, the specific case of the prosecution is that the petitioner drove the ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 9 ``` ``` vehicle rashly and negligently, which in my view falls short of an intention to cause any loss or the knowledge that it is likely cause wrongful loss or damage to the public or any person. As far as the driving of the vehicle in a rash and negligent manner is concerned, the same is covered under Section 279 of the Indian Penal Code and the petitioner is already charged for the said offence. Thus, when the allegations contained in the Annexure A2 Final Report is taken into consideration, it can be safely concluded that, the acts allegedly committed by him would not even remotely come within the purview of the mischief under Section 425 of the Indian Penal Code. The learned counsel for the petitioner also places reliance upon, the decision rendered by this Court in Rajesh R. v. State of Kerala [2014(3) KHC 648]wherein, similar contentions were raised with reference to ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 10 ``` ``` the offences punishable under the provisions of the Prevention of Damage to Public Property Act. In the said decision, the meaning of mischief as defined under Section 425 of the Indian Penal Code has been elaborately considered. Paragraph 12 of the said decision reads as follows: ``` ``` 12. Now coming to S.425 IPC, it is evident that mischief, like most crimes, comprises a mental and physical element. If a person causes wrongful loss or damage to public or any property or destroys or diminishes its value or utility or affects it injuriously with an intend to cause damage or destruction or knowing that he is likely to cause damage or destruction to the property, he is said to commit the offence. On reckoning the allegations in Annexure - A4 final report, it can be seen that the prosecution has no case that the petitioner intentionally dashed the vehicle on an electric post erected by the side of the road. Then what is remaining to be considered is whether he drove the vehicle rashly or negligently knowing that he is likely to cause wrongful loss or damage to public property. Whether it is attributable to a person, who rashly or negligently drives through a public road, with the knowledge that he is likely to cause danger to human life or damage or destruction of property? It is the legal requirement that any person driving a vehicle on a public road is expected to take due care and attention to avoid or avert a possible danger or damage to life or property. Still, if such person, unmindful of the consequences, drives a vehicle rashly or negligently, can it be said that he knew the ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 11 ``` ``` possible consequences of his action? True, a person driving or riding on a public way is expected to be alive and attentive to the realities like the density of population in the area through which he is driving, nature of the vehicle that he is driving, speed at which the vehicle is being driven, the condition of the road, whether he drives the vehicle at rush hours, weather condition at the time of driving, that is to say, rain, fog, etc. is affecting his visibility or increasing the possibility of error of judgment, etc. Mere speed alone may not be a criterion to find that a person was driving or riding on a public way rashly or negligently. The above mentioned realities perceivable while driving on a public road makes the driver / rider responsible for his act. But still, there is a clear cut distinction in law between an act done rashly or negligently on one hand and an act done with intention or knowledge of its consequences on the other hand. The expressions ‘intention’ and ‘knowledge' occur at many parts of the Penal Code. In the context of culpable homicide and murder defined in S.299 and S.300 IPC respectively, the Supreme Court in Basdev v. State of Pepsu, 1956 KHC 433: AIR 1956 SC 488 1956 SCR 363: 1956 CriLJ 919 (2): 1956 ALJ 666 and in later decisions has clearly held that intention and knowledge are two different things. Knowledge in this context means the awareness of consequences. I have already elaborated as to what is the legal meaning of the terms 'rashness' and 'negligence'. Both in rashness and negligence, there is no mental element to commit an offence. A rash act, though done with utter disregard to the consequences, cannot be said to be done with an intention or knowledge. Actually a man doing so does not intend to produce the result that eventually happens later on account of his action. Likewise, he does a rash or negligent act without the real knowledge as to what will happen as the outcome of his act. It is ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 12 ``` ``` indisputable that mischief is an offence done by the offender either with intention or with the knowledge that it is likely to cause damage or destruction to property. Hence, conceptually and in reality, the offences of rash or negligent driving on a public way and causing mischief by such an act cannot go together. ``` ``` 10. It was clearly held in the said decision that, conceptually and in reality, the offences of rash and negligent driving in a public way and causing mischief by such an act cannot go together. ``` ``` 11. Thus, in the light of the principles laid down by this Court in Rajesh R.case(supra), I am of the view that the implication of the petitioner for the offence under Section 427 of the Indian Penal Code is a clear abuse of process of the law. Therefore, it is liable to be interfered with. ``` ``` 12. However, on perusal of the records, I find that, there are prima facie materials indicating the commission of offence Section 279 of the Indian Penal Code. ``` ``` CRL.MC NO. 2182 OF 2022 ``` ``` 13 ``` ``` 13. In such circumstances, this Crl. MC is allowed, Annexure A2 Final Report to the extent it contains the offences under Section 427 of the Indian Penal Code as against the petitioner is hereby quashed. However, the prosecution can be continued for the offence under Section 279 of the Indian Penal Code. ``` ``` Considering the fact that, the Calendar Case is pending since 2017, it is directed that the learned Magistrate shall make every endeavour to dispose of the said case, as expeditiously as possible. ``` ``` SD/- ``` ``` ZIYAD RAHMAN A.A. ``` ``` JUDGE ``` BR ``` CRL.MC NO. 2182 OF 2022 ``` ``` 14 ``` ## **`APPENDIX OF CRL.MC 2182/2022`** ``` PETITIONER’S ANNEXURES Annexure A1TRUE COPY OF FIR IN CRIME NO. 236/17 OF ARANMULA POLICE STATION Annexure A1(a)TRUE COPY OF LETTER DATED 01.02.2017 ISSUED BY THE ASSISTANT ENGINEER, ELECTRIC SECTION, KOZHENCHERRY Annexure A2CERTIFIED COPY OF THE FINAL REPORT DATED 10.02.2017 IN CRIME NO. 236/17 OF ARANMULA POLICE STATION SUBMITTED BY THE 2ND RESPONDENT BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE NO. I, PATHANAMTHITTA Annexure A3TRUE COPY OF THE SCENE MAHAZAR DATED 02.02.2017 PREPARED BY THE 2ND RESPONDENT ``` ``` RESPONDENT’S ANNEXURES: NIL ```