Shibu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 04TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941** **Crl.MC.No. 497 of 2019** **CRIME NO.22/2019 OF KOLLAM EAST POLICE STATION, KOLLAM DISTRICT** ## **PETITIONER/ACCUSED:** **SHIBU, AGED 48 YEARS, S/O.SADASIVAN, POLICE QUARTERS III, AMMACHIVEEDU, KOLLAM.** **BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.K.ANAND (A-1921) SRI.V.VINAY** ## **RESPONDENT/STATE:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. (CRIME NO.22/2019 OF KOLLAM EAST POLICE STATION, KOLLAM DISTRICT).** **SMT. K. SHEEBA - PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 497 of 2019 2 ## **ORDER** The petitioner is working as a Junior Superintendent in the office of the Commissioner of Police, Kollam. He has a facebook account. During routine monitoring by the City Cyber Cell, as part of Social Media Monitoring by the police, certain posts shared by the petitioner on his profile came to the notice of his superior authorities. In those posts, certain references were made by the petitioner to the Chief Minister of the State, with a view to denigrate him and to tarnish his image. Some of his remarks were directed against the police force and its officers. Orders were promptly passed suspending the petitioner from service and a report was forwarded to the Kollam East Police Station. Crime No.22 of 2019 of the Kollam East Police Station was consequently registered under Sections 469, 500 of the IPC and Section 120(o) of the Kerala Police Act, 2011. 2. The proceedings in the said case are sought to be quashed in this petition filed under Section 482 of the Code of Criminal Procedure ('the Code” for brevity). 3. Sri. Vinay, the learned counsel appearing for the petitioner, submitted that Section 500 of the IPC being non cognizable and in view of the Section 199 of the Code, the police could not have Crl.MC.No. 497 of 2019 3 registered the crime ignoring the mandate under the Code. Only on a complaint filed by a person aggrieved by the offence could cognizance be taken by the learned Magistrate. He would further argue that Section 469 of the IPC would have no application whatsoever as the prosecution has no case that the petitioner had committed forgery and that he had done so with intent to harm the reputation of any person. It is further contended that the prosecution has also no case that the petitioner, by any means of communication, had caused any nuisance of himself to any person. He would also argue that Section 120(o) is also non cognizable and it was in order to get over the ban under Section 155 (4) of the Code that the respondent incorporated Section 469 of the IPC. 4. Heard the learned Public Prosecutor, who submitted that Section 469 of the IPC being cognizable, the police was justified in registering the crime without obtaining previous permission from the jurisdictional Magistrate. 5. I have considered the submissions advanced. It is discernible from Annexure-I that the specific allegation against the petitioner is that he had shared certain messages on his facebook profile. This, according to the prosecution, was with intent to defame the Chief Minister of the State and the Police Department as a whole. Crl.MC.No. 497 of 2019 4 6. The procedure for initiating a prosecution for defamation is provided in Section 199 of the Cr.P.C, which reads as follows: “199. Prosecution for defamation. (1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court make a complaint on his or her behalf. (2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who at the time of such commission, is the President of India, the Vice- President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor. Crl.MC.No. 497 of 2019 5 (3) Every complaint referred to in sub- section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the caused of the offence alleged to have been committed by him. (4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction- - (a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government; - (b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State; - (c) of the Central Government, in any other case.” - xxxx xxxxx 7. The cognizance of complaints for offences of defamation punishable under Chapter XXI of the IPC is barred, except where the complaint is lodged by an aggrieved and defamed person. Sub-section (2) to Section 199 provides an exemption to the Rule laid down in Section 199(1) of the Cr.P.C. and gives special protection to the President of India, the Vice President of India, the Governor of a State, the Administrator of a Union Territory or a Minister of the Union or of a State or of a Union Territory or any other public servant employed in connection with the affairs of the Union or the State. In Crl.MC.No. 497 of 2019 6 such cases, prosecution for defamation is permissible in the absence of a complaint by the person defamed. However, a complaint has to be filed in writing by the Public Prosecutor before the Court of Session and the said court is empowered to take cognizance of the offence without the case being committed to it, provided sub-clauses (3) to (5) of Section 199 are complied with. In the case on hand, the Crime was registered based on a report, which was forwarded to the police by the Cyber Cell. That would not satisfy the mandate under the Code. 8. There is also an allegation that the posts shared by the petitioner were defamatory to the police department as a whole. Explanation 2 to Section 499 of the IPC refers to defamation of a company or an association or a collection of persons as such. In such cases, one of their members may make a complaint on behalf of the collections of the company. In the case on hand, no person from the Police Department has come forward to lodge a complaint before the learned Magistrate. In that view of the matter, the contention of the learned counsel appearing for the petitioner that the initiation of prosecution for the offence under Section 500 of the IPC cannot be upheld has to be sustained. 9. The petitioner has also been accused of having committed Crl.MC.No. 497 of 2019 7 offence punishable under Section 469 of the IPC. Under Section 469 of the IPC, a person, who commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, is liable to be punished with imprisonment, which may extend to three years and fine. Except for an allegation that the petitioner herein had shared certain messages on his facebook profile, there is nothing to show that he had forged a document or an electronic record and that too, with intent to harm the reputation of any person. That provision is also not attracted as against the petitioner. 10. The petitioner is also accused of having offence punishable under Section 120(o) of the Police Act, 2011. Section 120(o) reads as follows: “120 :If any person - (o) causing, through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, e-mail or through a messenger; shall, on conviction, be punishable with imprisonment which may extend to one year or with fine which may extend to five thousand rupees or with both.” 11. The said provision can be invoked in those cases, wherein an aggrieved person comes forward and complains that the accused Crl.MC.No. 497 of 2019 8 has been causing nuisance to him by calling the said person repeatedly or by issuing letters, messages, e-mails or through a messenger. In the case on hand, the said situation has not arisen. An officer in the Cyber Cell has simply forwarded a report to the East Police Station leading to the registration of the Crime. 12. In **State of Haryana and Ors. v. Bhajan Lal and Ors.** [1992 Supp (1) SCC 335], the Apex Court Court has given clear indications of the categories of cases by way of illustration, wherein the powers under Article 226 of the Constitution or under Section 482 of the Code could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. They are: “(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 Crl.MC.No. 497 of 2019 9 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.” Clauses (4), (5) and (7) would squarely apply in the instant case.” ## 13. In **Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Angre and Ors.** , [(1988) 1 SCC 692], the Hon’ble Supreme Court has observed as follows: “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the Crl.MC.No. 497 of 2019 10 basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” ## 14. Further in **Janata Dal v. H.S. Chowdhary and Ors.** , ## [(1992) 4 SCC 305], the Apex Court has observed as follows: “132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court Under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.” 15. The entire law on the subjects was reviewed by a three Judges Bench of the Hon’ble Supreme Court in **Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors.** , [(2007) 12 Crl.MC.No. 497 of 2019 11 SCC 1] and in **R. Kalyani v. Janak C. Mehta and Ors.** [(2009) 1 SCC 516] as well. 16. Having considered the entire facts and in the light of the above precedents, I am of the view that this is one of those rare and exceptional cases, wherein this Court will be justified in terminating the criminal proceedings by invoking the powers under Section 482 of the Code. In the result, this petition is allowed. Annexure-I FIR in Crime No.22 of 2019 of the Kollam East Police Station, Kollam and all further proceedings pursuant thereto against the petitioner are quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** IAP Crl.MC.No. 497 of 2019 12 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I CERTIFIED COPY OF THE FIR IN CRIME NO.22/2019 OF KOLLAM EAST POLICE STATION, KOLLAM DISTRICT.** **ANNEXURE II TRUE COPY OF THE SUSPENSION ORDER DATED 11.01.2019.** ## **RESPONDENTS' EXHIBITS:** NIL