Sanjay Zacharias v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943** **CRL.MC NO. 4152 OF 2021** **CRMP 1294/2021 OF DISTRICT & SESSIONS COURT,KOTTAYAM CRIME 1494/2021 OF PALA POLICE STATION, KOTTAYAM** ## **PETITIONER/1ST ACCUSED:** **SANJAY ZACHARIAS AGED 32 YEARS S/O. K.C.ZACHARIAS, KIZHAKKAYIL HOUSE, 12TH MILE, PALAI, KOTTAYAM DISTRICT-686 575** **BY ADVS.S.SREEKUMAR (SR.) M.REVIKRISHNAN UNNI SEBASTIAN KAPPEN** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 STEPHEN GEORGE AGED 50 YEARS POOTHATHIL HOUSE, ONAMTHURUTHU P.O., NEENDOOR, KOTTAYAM-686 602** - **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031** **BY ADVS.** **TOM JOSE (PADINJAREKARA) SHRI.SAJJU.S., SENIOR GOVERNMENT PLEADER() SRI.T.A. SHAJI,DIRECTOR GENERAL OF PROSECUTION FOR R2** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **12.10.2021, THE COURT ON 25.11.2021 PASSED THE FOLLOWING:** Crl.M.C.4152/2021 2 ## **O R D E R** This is a petition filed under Section 482 of the Criminal Procedure Code seeking to quash the entire proceedings in Annexure-1 complaint and Annexure-2 First Information Report and all further proceedings in crime 1494/2021 of Pala police station as against the petitioner to the extent the same imputes the petitioner with an offence under Section 67A of the Information Technology Act, so as to secure the ends of justice. 2. Crime No.1494/2021 of Pala police station was registered on 14.07.2021 on the basis of a complaint preferred by the 1[st] respondent Stephen George, who is a former MLA, before the Station House Officer alleging offence under Section 67 and 67A of the Information Technology Act, Sections 469, 471, 120B of the IPC and Section 120(o) of the Kerala Police Act. The petitioner/the complainant claimed that he is the General Secretary of the Kerala Congress(M) and a former MLA of the Kerala Congress (M), which is a recognised political party. According to him, the accused dishonestly and fraudulently forged electronic records to harm the Crl.M.C.4152/2021 3 reputation of Sri.Jose K. Mani, who is a political leader and Chairman of the Kerala Congress (M), who was a former member of the Lok Sabha and son of the former party leader late Sri. K.M. Mani. Sri. Jose K. Mani is well-known for his honesty, integrity and trustworthiness. He belongs to a very highly respectable and noble family and also a reputed member of the society and a well-known leader across the State and a visible media personality. The accused had dishonestly and fraudulently forged electronic records to harm the reputation of Sri.Jose K. Mani and Sri.Thomas Chazhikkadan, who is a former MLA and a sitting Member of the Parliament who has spotless reputation, goodwill, integrity and trustworthiness in general public. It is alleged that the accused and his associates have published sexually explicit materials through social media platforms such as Facebook, Whatsapp etc. In one instance, he published posts of Sri.Jose K. Mani fabricating his picture with the infamous Saritha with a comment therein that “എനന്റെ കരളളേ എനനികകക്കും കനിടനി 5 വര്‍ഷക്കും” and got electronic record published and transmitted through 'Palkaran Pala', a Facebook page. It also came out that he had fraudulently created a Facebook ID in the fake name of Thomas Mathew, handling the ID Crl.M.C.4152/2021 4 through Thomas Mathew, has stipulated and transmitted another obscene, sexually explicit post, “for defeated Jose, Saritha has dedicated a song from jail, വദനസകരത ളമമോഹസകന്ദരമോ" which was posted on 9[th] May, 2021. According to the complainant, the word “വദനസകരത" is obscene and sexually explicit, meaning oral sex. The accused is continuously publishing the posts without verifying the real facts but with malicious intent to harm the reputation of Sri.Jose K. Mani and Sri.Thomas Chazhikkadan. He had also published facebook posts in his personal blog 'Palkaran Pala' with forged pictures of Sri.Jose K. Mani and a film comedian with comments that he had sold Piravam seat for a price and that he was holding a currency counting machine. Similar other matters published in the social media have been highlighted by the complainant for initiating criminal prosecution against the accused. On that basis, the crime was registered and during the course of investigation the petitioner moved the Sessions Court, Kottayam seeking anticipatory bail under Section 438 of Cr.P.C. But by Annexure-5 order the Sessions Judge dismissed that application. Now the petitioner has approached this Court under Section 482 of Cr.P.C. for quashing the entire proceedings. Crl.M.C.4152/2021 5 3. As in the case put forward before the Sessions Court, he has raised four contentions before this Court for quashing the proceedings. Firstly, he says that he is totally innocent and the allegations against him are false and are politically motivated, as he belongs to opposite political denomination, the crime has been launched for wreaking political vengeance, that he is made a scape goat. Secondly, according to the petitioner, even if the allegations are taken as such without admitting, that would attract only offence under Section 67 of the IT Act and the ingredients of offence under Section 67A are not available. In that case, the offences are bailable. Thirdly, it is said that the complainant cannot have any personal grievance in the matter and he has approached the Court on the directions of his political supremo and he is not personally affected and fourthly that there is considerable delay in initiating the prosecution. Even though the alleged cause of action had arisen between 17.04.2021 and 15.05.2021, the complaint was preferred on 13.07.2021 and the crime was registered on 14.07.2021. That means, there is a delay of 60 days which has not been explained. On these considerations the proceedings are sought to be quashed. Crl.M.C.4152/2021 6 4. I heard the learned Senior counsel for the petitioner, the learned counsel for the 1[st] respondent and also the learned Director General of Prosecution for the 2[nd] respondent. 5. According to the learned Senior counsel who represented the petitioner, he is not the said 'Palkaran Pala', that the police is proceeding against him alleging that he has published posts in the social media as if he has numerous other names, which is baseless. The counsel also reiterated that offence under Section 67A of the IT Act cannot be attracted in the facts of the case. After all, it is a political gamut; the petitioner is an engineering graduate having wife and two small children, he has been unnecessarily dragged into the proceedings. The counsel also complained that he is the victim of social bullying, that himself and his wife are targeted by political opponents; even though he had preferred a complaint against such illegal activities, the police have not taken any action against the culprits. Instead, they have acted on a malicious complaint at the instance of the political opponents and political masters, for harassing him. 6. Along with Crl.M.A. 3 of 2021, the learned counsel Crl.M.C.4152/2021 7 brought to my notice the relevant extracts from the 'Sabdatharavali' and said that what is stated is 'വദനസകരത'. ' ' means face and വദനക്കും 'വദനസകരത' only means 'extreme like towards face' and it has no sexual tone and that the petitioner is being harassed giving a false interpretation. 7. On the other hand, the learned counsel for the 1[st] respondent submitted that the petitioner/accused was bent upon to malign Sri.Jose K. Mani, Chairman of the Kerala Congress (M), who is a known political figure in the State who has his own reputation and respect in the society. According to him, ingredients of offence under Section 67A are very much attracted. 8. The learned Director General of Prosecution also opposed the application contending that the posts made by the petitioner have to be understood in the context it were published, the aspect from etymological point of view has to be appreciated. According to him, such contentions were not worth even for granting anticipatory bail under Section 438 of Cr.P.C. and therefore it is not acceptable in a proceedings under Section 482 of the Cr.P.C. 9. Before going into the rival contentions, it is only Crl.M.C.4152/2021 8 appropriate to set out the guidelines issued by the Apex Court in **Union of India v. B.R. Bajaj [AIR 1994 SC 1256]** etc. The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 of the Constitution or the inherent power under Section 482 of the Cr.P.C. can be exercised by the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice: (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 S.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 Crl.M.C.4152/2021 9 against the accused; - (4) Where, the allegations in the FIR do not constitute a cognizable - offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.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 man 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 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, and lastly, - (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. Crl.M.C.4152/2021 10 Let us consider whether how far the above parameters can be applied to the factual matrix of this case. 10. In the Annexure-1 complaint, among other things, the 1[st] respondent has also referred to **Majeesh K. Mathew v. State of Kerala and another [2018 (4) KHC 253]** . According to the learned Senior Counsel for the petitioner, that decision has little application to the facts of the case. That crime was initiated by a lady against whom oblique utterances were made through social media describing her as sexually promiscous etc. Here, that is not the case. Therefore, according to the learned counsel, that decision has no application in this case. I have no doubt that there, facts of the case are different. But it requires to be pointed out that in that decision this Court had occasion to consider the ingredients of Section 67A of the IT Act and the decision stands confirmed by the Hon'ble Apex Court. Whatever it may be, at this stage it is not necessary to give much thrust on that aspect. 11. I shall at once turn to the contentions raised by the learned counsel for the petitioner for quashing the proceedings. The first contention, that he is totally innocent and the allegations are false, Crl.M.C.4152/2021 11 cannot be considered in a proceedings under Section 482 of Cr.P.C. All the same, there are reasons to think that the petitioner had made postings on a regular basis in social media such as whatsapp, face book etc. There is also allegation that he had fraudulently and dishonestly created and handled several fake IDs in the face book in the names of Reena Paul, Thomas Mathew, Shaji Pala, Shaji K.M., Palkaran Chettan, Palkaran Pala, etc. Such fake IDs were created and handled by him with dishonest and malicious intention to harm the reputation of his political rivals. It is the specific allegation that he had used two mobile numbers, details of which have been narrated in the complaint filed by the 1[st] respondent. At this stage, this Court cannot consider the correctness, falsity or otherwise of such allegations. It is a matter to be investigated by an investigating agency and therefore it is too premature to form an opinion about the contention. 12. Secondly, it was contended that an offence under Section 67A of the IT Act, which alone is non-bailable, is not attracted. According to the learned counsel, Section 67A has been invoked only to make the case non bailable and with an intention of harassing the Crl.M.C.4152/2021 12 petitioner. Now the question is whether he had made sexually explicit postings in the social media. The most vital point in this connection is a caricature of the said Jose K. Mani along with an infamous lady who had depicted having dedicated a song "വദനസകരത ളമമോഹസകന്ദരമോ". As noticed earlier, the learned Senior Counsel tried to make an interpretation and said that it does not have sexually explicit tone and that at the most it has only a positive tone, it should not have been interpreted to attract Section 67A of the IT Act. But, after having considered this aspect, I do not have any hesitation to say that such an interpretation cannot be made at least at this stage. Every word has to be understood in the context it is used. The interpretation, it appears, attempted by the learned Senior Counsel is a distorted version, taken out of context, to justify and suit the conveniences of the petitioner. 13. It is the settled proposition of law, as held by the Hon'ble Supreme Court in **Devidas Ramachandra Tuljapurkar v. State of Maharashtra and others [AIR 2015 SC 2612]** in deciding whether the matter in question is obscene, the Court has to take overall view of the matter; that there has to be an objective assessment and the Judge must in the first place put himself in the position of the author and, Crl.M.C.4152/2021 13 thereafter, in the position of reader of every case and must eliminate the subjective element or personal preference; The contemporary community standards test is the main criterion in deciding the obscenity and it has to be appreciated on the foundation of modern perception, regard being had to the criterion that develops the literature. I do not think that the expression "വദനസകരത ളമമോഹസകന്ദരമോ" has a tone that can be understood differently. It has similarities with the opening lines of a popular Malayalam film song; it seems that in the context it was used only meant to give expression to oral sex, which has a sexually explicit tone and therefore the contention that Section 67A has no application cannot be accepted in right earnest. 14. The third contention that the complainant has no _locus standi_ also cannot be accepted. It is trite law that a criminal prosecution can be initiated by any one, even if he is not personally aggrieved. Here the complainant/the 1[st] respondent is an office-bearer of a political party; the said denigrating postings were published referring to two senior office-bearers of his political party. Mr.Jose K. Mani is none other than the Chairman of the Kerala Congress (M) and Crl.M.C.4152/2021 14 Mr. Thomas Chazhikkadan is a sitting Member of the Parliament, elected in the Kerala Congress (M) ticket. Therefore, it cannot be said that he has no _locus standi_ to initiate the proceedings. 15. It was also said that there is considerable delay in initiating the proceedings. That also cannot be accepted at this stage. In fact a delay in initiating a criminal proceedings would be fatal only if such delay has resulted in embellishment, exaggeration etc. and thereby caused prejudices to the accused. It is a question of fact which can be considered only at the appropriate time. Therefore, the delay aspect cannot be highlighted to quash the proceedings at the threshold itself. 16. As mentioned earlier, the petitioner had earlier moved the Sessions Court with an application under Section 438 of Cr.P.C. and his application was dismissed. As rightly pointed out by the learned DGP, contentions which were not worth beneficial to get an order under Section 438 of Cr.P.C. has been reiterated for quashing the proceedings under Section 482 of the Cr.P.C. In other words, even for getting anticipatory bail such contentions were not acceptable and in a worse condition for quashing the proceedings, such arguments are not at all acceptable. Crl.M.C.4152/2021 15 17. When the contentions of the petitioner are taken in the touch stone of the parameters laid down by the Apex Court, I have no doubt that the petitioner is not entitled to succeed. At this stage such arguments are superfluous and are liable to be rejected. Resultantly, the application for quashing the proceedings is devoid of merits and is dismissed. **K.HARIPAL JUDGE** okb/21.11 Crl.M.C.4152/2021 16 ## **APPENDIX OF CRL.MC 4152/2021** |PETITIONER ANNEXURE|| |---|---| |Annexure 1|TRUE COPY OF THE COMPLAINT PREFERRED BY THE| ||DEFACTO-COMPLAINANT BEFORE THE STATION HOUSE| ||OFFICER PALAI WITH THE ANNEXURES APPENDED| ||THERETO| |Annexure 2|TRUE COPY OF THE FIRST INFORMATION REPORT IN| ||CRIME NO.1494/2021 OF PALAI POLICE STATION,| ||KOTTAYAM DISTRICT DATED 14.07.2021| |Annexure 3|TRUE COPY OF THE COMPLAINT PREFERRED BY THE| ||PETITIONER BEFORE THE STATION HOUSE OFFICER,| ||PALAI DATED 19.08.2021| |Annexure 4|TRUE COPY OF THE RELEVANT SCREENSHOTS| ||EVIDENCING THE CYBER ATTACKS CARRIED OUT ON| ||THE REGISTERED GOOGLE PAGE OF THE COMPANY OF| ||THE PETITIONER| |Annexure 5|TRUE COPY OF THE ORDER OF THE COURT OF| ||SESSION, KOTTAYAM IN CRL MP NO.1294/2021| ||DATED 07.09.2021| |Annexure 6|TRUE COPY OF THE RELEVANT SCREENSHOT OF THE| ||FACEBOOK PAGE OF 'PALKKARAN PALA' EVIDENCING| ||THAT THE ADMINS OF THE PAGE ARE LOCATED AT| ||AUSTRALIA| |Annexure 7|TRUE COPY OF THE RELEVANT PAGES OF THE| ||SABDATHARAVALI|