Santosh S v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 29[TH] DAY OF MAY 2023 / 8TH JYAISHTA, 1945`** ## **`CRL.MC NO. 1211 OF 2023`** ## **`CC 522/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,PATHANAMTHITTA`** ## **`PETITIONER/ACCUSED:`** ``` SANTHOSHS AGED54YEARS S/O.S.SADANANDAN,HEADMASTER,SNDPHSS, MUTTATHUKONAM,ELAVUMTHITTA,PATHANAMTHITTA, RESIDINGATKAILAS,MANGADP.O,KOLLAM, - PIN691015 BYADVS. UTHARAA.S C.UNNIKRISHNAN(KOLLAM) NIDHIBALACHANDRAN VIJAYKRISHNANS.MENON DINOOPP.D. VIVEKNAIRP. ANANDAPADMANABHAN ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,PIN682031 2THESTATIONHOUSEOFFICER ELAVUMTHITTAPOLICESTATION,PATHANAMTHITTA - DISTRICT.,PIN689507 3THEDISTRICTEDUCATIONALOFFICER,PATHANAMTHITTA DISTRICTEDUCATIONOFFICE,PATHANAMTHITTA, - PIN689645 ``` ``` CRL.MCNO.1211OF2023 ``` ``` 2 ``` ``` 4THEDIRECTOROFGENERALEDUCATION - JAGATHITRIVANDRUM,PIN695014 ``` ``` 5THESECRETARYTOGOVERNMENTOFKERALA GENERALEDUCATIONDEPARTMENT,SECRETARIAT - TRIVANDRUM,PIN695001 ``` ``` SRIVIPINNARAYAN,SRPUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON29.05.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` ``` CRL.MCNO.1211OF2023 ``` ``` 3 ``` ## **ORDER** The petitioner is the accused in CC No.522 of 2022 on the files of the Judicial First Class Magistrate Court-II, Pathanamthitta. In the aforesaid case, he is accused of having committed offenses punishable under Sections 409 and 201 of the IPC and Section 72 of the Information Technology Act, 2000. The above case originated based on Crime No.464/2021, registered at the Elavumthitta Police Station on the information furnished by the District Education Officer, Pathanamthitta. 2. Short facts leading to the registration of the Crime are as under: The petitioner served as the Headmaster of the SNDP School Muttathukonam. The chronology of events dates back to the commencement of the SSLC examination for the academic year 2020-21, which began on the 8th day of April, 2021. It is alleged that on the 19th of the same month, the petitioner ventured into classroom No.XA, where the examination was going on. The invigilator was not present in the classroom at the time. While so, one of the students who was present inside the classroom sought clarification on a specific question from the petitioner. The allegation is that the petitioner resorted to the use of his mobile device to capture an image of the query located on page 9 of the ``` CRL.MCNO.1211OF2023 ``` ``` 4 ``` question paper. Subsequently, he is said to have disseminated the captured question to a WhatsApp group maintained by the DEO, with its members being primarily Headmasters of other schools within the jurisdictional limits of DEO, Pathanamthitta. Once the DEO, Pathanamthitta, was made aware of this occurrence, he filed Annexure A1 complaint with the Deputy Superintendent of Police, Pathanamthitta, leading to the registration of Crime No.464 of 2021. After completion of the investigation, the final report has been laid before the learned Magistrate. 3. C. Unnikrishnan, the learned counsel appearing for the petitioner, submitted that the petitioner was the Headmaster of the School, and his attempt was only to clarify the doubt raised by the student with other Headmasters in the group created by the DEO. The DEO was also a member of the group. The message was disseminated at 10.30 am, that too after the commencement of the exam. No deliberate criminal or dishonest intent could be attributed to the petitioner, contends the learned counsel. It is urged that departmental action was initiated against the petitioner for his action, which culminated in the barring of one increment without cumulative effect for six months, as is evident from Annexure A2 order. Reliance is also placed on Annexure-A3 letter submitted by the DEO, Pathanamthitta, requesting the Director General of ``` CRL.MCNO.1211OF2023 ``` ``` 5 ``` Education to consider sympathetically the case of the petitioner herein as the action of the petitioner did not result in the confidentiality of the question paper being leaked for any personal interest. The learned counsel pointed out that the petitioner had attained superannuation on 31.05.2023, and if the prosecution is allowed to stand, in spite of the fact that the action was not preceded with any dishonest intent and further that no injury was caused to any person, grave injustice would be caused. The learned counsel would further submit that by no stretch of the imagination, offense under Section 72 of the Information Technology Act, 2000, 201 and 409 of the IPC would be attracted in the instant case. 4. The submission of the learned counsel appearing for the petitioner is controverted by the learned Public Prosecutor. He would take this Court to the sequence of events and also the statement of the prosecution witnesses, and it is argued that the petitioner being the Headmaster of the School, was bound to take necessary care while taking photographs of the question paper and disseminating the same through WhatsApp. According to the learned counsel, though leakage of question paper did not arise, the fact remains that the petitioner herein had taken the photograph, and the same was transmitted through WhatsApp to the group created by the DEO. It is submitted that the mere fact that departmental proceedings were initiated against the petitioner is no ``` CRL.MCNO.1211OF2023 ``` ``` 6 ``` reason for this Court to quash the proceedings by invoking the powers under Section 482 of the Cr.P.C. 5. I have considered the submissions advanced. I have already narrated the sequence of events. From Annexure-A3, communication issued by the DEO to the Director General of Education, it appears that the examination, which was held on 19.04.2021, went on smoothly, and the results were also published. Though the question paper was disseminated by the petitioner through WhatsApp, it did not reach the wrong hands. 6. The statement of the witnesses, including one student who was in the classroom, would reveal that one of the students had asked certain doubts in respect of one question, and the petitioner herein took a photograph of the aforesaid question. Records also reveal that action was taken departmentally, and one increment was barred for six months. 7. Now the question is whether the offense alleged against the petitioner would be attracted. 8. Section 409 of the IPC deals with criminal breach of trust by a public servant or by a banker, merchant, or agent. The said provision reads as under: 409. Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his ``` CRL.MCNO.1211OF2023 ``` ``` 7 ``` capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 9. To constitute an offense of criminal breach of trust, it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest use or disposal in violation of a direction of law or a legal contract, by the accused himself or by someone else, which he willingly suffered to do. The gravamen of the offense under section 409 of the IPC is dishonest intent on the part of the accused. The section cannot be construed as implying that any Headmaster who negligently or accidentally forwarded a photograph of a particular question to the members of a group created by the DEO and in which the DEO himself is a member is ipso facto guilty of criminal breach of trust. The mere fact that the petitioner had forwarded the message to the group created by the DEO consisting of Headmasters would show that he had no dishonest intention. From the report submitted by the DEO to the Director General, it is evident that the message was sent innocently ``` CRL.MCNO.1211OF2023 ``` ``` 8 ``` and after the commencement of the exams. It has also come out during the investigation that the message did not reach the wrong hands. In that view of the matter, I am of the view that the essential ingredient of the offense, being dishonest intent, is absent. 10. Insofar as Section 72 of the IT Act is concerned, the said provision deals with penalties for breach of confidentiality and privacy. The provision reads thus: 72. Penalty for breach of confidentiality and privacy.—Save as otherwise provided in this Act or any other law for the time being in force, any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both. 11. In the case on hand, there is no case for the prosecution that the petitioner was conferred with any powers under the IT Act, the Rules, or the Regulations thereunder and that he had secured access to any electronic record without the consent of the persons concerned and disclosed such electronic record to any other person. The said provision ``` CRL.MCNO.1211OF2023 ``` ``` 9 ``` has no application to the facts of the instant case. 12. Section 201 of the IPC has also been incorporated. Section 201 says that whoever, knowing or having reason to believe an offence has been committed, causes any evidence of the commission of the offence to disappear, with the intention of screening the offender from legal punishment. I have already held that in the case on hand, Section 409 of the IPC and Section 72 of the IT Act will not be attracted. The case of the prosecution is that after coming to know about the folly that he had committed, the petitioner had deleted the files from his mobile. The records reveal that the message had already been forwarded to the group and the same was received by the other members of the group. I do not think that, in the facts and circumstances, the offence under section 401 of the IPC is made out. 13. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offenses to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in **State of Haryana v. Bhajan Lal[1]** . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative > 1 [1992 Supp (1) SCC 335 ``` CRL.MCNO.1211OF2023 ``` ``` 10 ``` ## categories indicated by the Apex Court has been detailed in paragraph 102 and 103 of the judgment, which reads as under: **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 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-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. ``` CRL.MCNO.1211OF2023 ``` ``` 11 ``` - (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. **103.** We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 14. Having considered the facts of the instant case, in the light of the principles laid down by the Apex Court in **Bhajan Lal** (supra), I am of the view that the uncontroverted allegations made in the FIR and the charge and the evidence collected in support of the same do not disclose the commission of any against the petitioner. In that view of the matter, this Court will be well justified in invoking its powers under ``` CRL.MCNO.1211OF2023 ``` ``` 12 ``` section 482 of the Code to quash the criminal proceedings against the petitioner. Resultantly, this petition will stand allowed. Annexure-A6 Final Report in Crime No. 464/2021 of Elavumthitta Police station and all further proceedings pursuant thereto pending against the petitioner as CC No.522 of 2022 on the file of the JFCM-II, Pathanamthitta, are quashed. ## **`Sd/-`** ``` RAJAVIJAYARAGHAVANV JUDGE ``` ``` IAP ``` ``` CRL.MCNO.1211OF2023 ``` ``` 13 ``` ## **`APPENDIX OF CRL.MC 1211/2023`** ``` PETITIONER’SANNEXURES: ``` ``` AnnexureA1 ``` ``` ATRUECOPYOFTHEFIRNO.464/2021OF ELAVUMTHITTAPOLICESTATIONALONGWITH THECOMPLAINTANDSTATEMENTOFTHEDEO PATHANAMTHITTA ``` ``` AnnexureA2 ``` ``` ATRUECOPYOFTHEORDERDATED 01/11/2021ISSUEDBYTHEGENERAL MANAGEROFSNDPYOGAMSCHOOLS ``` ``` AnnexureA3ATRUECOPYOFTHELETTERDATED 25/11/2021ISSUEDBYTHEDEO PATHANAMTHITTA ``` ``` AnnexureA4ATRUECOPYOFTHEREPRESENTATIONDATED 28/12/2021SUBMITTEDBYTHEPETITIONER BEFORETHEGOVT.SECRETARYISPRODUCED HEREWITH ``` ``` AnnexureA5ATRUECOPYOFTHELETTERNO. V.B.1/243132/2021/DGEDATED28/12/2021 ISSUEDBYTHEDIRECTORGENERALOF EDUCATIONTOTHEGOVT.SECRETARY ``` ``` AnnexureA6 ``` ``` CERTIFIEDCOPYOFTHEFINALREPORT FILEDINCRIMENO464/21BYTHE2ND RESPONDENTANDRENUMBEREDASCC522/22 ONTHEFILEOFJUDICIALFIRSTCLASS MAGISTRATECOURT-II,PATHANAMTHITTA ```