Varghese Mathew @ Ajinithya v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 11[TH] DAY OF AUGUST 2023 / 20TH SRAVANA, 1945 CRL.MC NO. 1728 OF 2022`** ``` AGAINSTTHEORDER/JUDGMENTCC859/2019OFADDITIONALCHIEF JUDICIALMAGISTRATE(E&O),ERNAKULAM ``` ## **`PETITIONER/ACCUSED :-`** ``` VARGHESEMATHEW@AJINITHYA,AGED43YEARS S/O.MATHAYI,"PERAYIKODATHUHOUSE",NIRANAMP.O., THIRUVALLATALUK,PATHANAMTHITTADISTRICT-PIN689621, CURRENTLYRESIDINGAT"ANNAVILLA",ABDULKALAMNAGAR, CHOTTANIKKARADESOM,ERNAKULAMDISTRICT,PIN682312. ``` ``` BYADVS. KRISHNAPRASAD.S SINDHUSKAMATH SWAPNAS.K. ROHININAIR SURAJKUMARD. ``` ## **`RESPONDENT/COMPLAINANT/STATE :-`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM PIN-682031, PIN - 682031`** ``` *2ADDL.R2ISIMPLEADED:- ``` ``` G.PRAKASH,AGED43YEARS COMMODORE,COMMANDINGOFFICER,STATIONCOMMANDERNAVY, INDIANNAVY,KOCHI,KERALA-682004. ``` ## **`BY SMT. NIMA JACOB, PP`** ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 11.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No. 1728 of 2022 2 ## **ORDER** The petitioner is the sole accused in C.C.No.859 of 2019 on the file of the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam. In the aforesaid case, he is facing prosecution for having committed offences punishable under Sections 505(1)(b) of the IPC, Section 67 of the Information Technology Act, 2000, and Section 118(e) of the Kerala Police Act, 2011. 2. The short facts of the case are under:- On August 3, 2018, the Commodore, Commanding Officer, and Stational Commander (Navy) filed a complaint with the Inspector General of Police, Ernakulam Range, regarding a malicious casting call for a movie titled "Kataribagh." The complaint stated that the casting call invited artists with criminal looks/backgrounds and that the intent was to denigrate the morale of the armed forces. The complaint named the individuals involved in the production of the movie, namely the director and producer, who were operating under the banner "Ridhvika Creations." The Commodore requested that the police prevent the audition and any further work on the project and that they increase the presence of police personnel near the entrance of the Katari Bagh. 3. Based on the above complaint lodged by the Commanding Officer, Crl.M.C No. 1728 of 2022 3 the crime was registered initially under Section 67 of the Information Technology Act as Crime No.1328 of 2018 against the petitioner herein and one Gul Renjith. Later, the investigation was completed, and a final report was laid before the Additional Chief Judicial Magistrate on 15.12.2018. Cognizance was taken, and the case has been numbered as C.C.No.859 of 2019 on the file of the said court. 4. Mr. Suraj Kumar D, the learned counsel appearing for the petitioner, argued that the petitioner works as a creative consultant and aims to be a film director. The petitioner, in his role as a consultant and director, sought to attract young talent for a movie project. He created a casting call with ironic elements to capture interest for the film he intended to direct. This casting call was meant to be satirical and was shared on Facebook and Whatsapp, aiming to bring genuine artists on board for his movie project. The learned counsel asserted that he hasn't violated the provisions of Sections 505(1)(b) of the IPC, Section 67 of the Information Technology Act, 2000, or Section 118(e) of the Kerala Police Act, 2011. The learned counsel urged that the intent was never to create any alarm to the public or prompt anyone to commit a crime. Furthermore, the petitioner's created content had no lascivious element or intent, making Section 67 of the I.T Act inapplicable. The claim that the petitioner breached the Police Act is seen as a misuse of the process since there was no threat to public safety. It is submitted Crl.M.C No. 1728 of 2022 4 that as a genuine artist, the petitioner has the right guaranteed under the constitution, and the party respondents will have no right to stifle the same. To bolster his submissions, the learned counsel has relied on the law laid down in **Santhosh v. State of Kerala** [2018 (2) KHC 360], **Sreekumar V v. State of Kerala** [ 2019 (2) KHC 693], and **Sreeja Prasad v. State of Kerala** [ 2020(3) KHC 151] 5. In response, it is submitted by the learned Public Prosecutor that a slide was created by the petitioner herein and posted on social media wherein by portraying it as a casting call, the intention was to degenerate the Navy and to lower the morale of the armed forces. It is submitted that, in the facts and circumstances, it cannot be said that the ingredients of the offenses are not attracted. 6. I have considered the submissions advanced and have gone through the records. It is emphatically written in Annexure 2 slide that the same is intended to be a casting call. The slide has been created in a sarcastic manner with sardonic undertones. The question is whether the offence under Section 67 of the Information Technology Act or other criminal provisions would be attracted in the instant case. Section 67 of the I.T. Act reads as under:- “67 Punishment for publishing or transmitting obscene material in Crl.M.C No. 1728 of 2022 5 electronic form. -Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.” ## 7. To attract Section 67 of the Act, the following ingredients will have to be satisfied. - a. The person either publishes or transmits, or causes someone else to publish or transmit material in electronic form. - b. The material is lascivious or appeals to unhealthy sexual interest. - c. The material's effect can deprave or corrupt those who are likely to read, see, or hear it, considering all relevant circumstances. 8. Having carefully perused the slide, it is evident that while it may have been drafted with sarcasm, there is no valid argument to suggest that its contents are lascivious or appeal to prurient or unhealthy sexual interests. For a person to be prosecuted under Section 67 of the Act, they must publish or transmit in electronic form any material that can be classified as lascivious or Crl.M.C No. 1728 of 2022 6 appeals to the prurient interest or if the content tends to deprave and corrupt its audience. The slide would not attract the above ingredients to render the petitioner to punishment under Section 67 of the I.T. Act. 9. Section 505(1)(b) penalizes individuals who make statements with the intent to, or that are likely to, cause fear or alarm to the public or any section thereof. Any discerning person who peruses the slide created by the petitioner would readily understand its nature as a casting call with no other implications. It certainly is not designed to instill fear or alarm among the public. Furthermore, regarding Section 118(e) of the Kerala Police Act, this provision is triggered only if an individual poses a threat to public safety or jeopardizes it. In this instance, no such threat or jeopardy is evident. 10. 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 categories indicated by the Apex Court has been detailed in paragraph > 1 [1992 Supp (1) SCC 335 Crl.M.C No. 1728 of 2022 7 ## 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.M.C No. 1728 of 2022 8 - (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. 11. 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 Crl.M.C No. 1728 of 2022 9 in invoking its powers under section 482 of the Code to quash the criminal proceedings against the petitioner. Resultantly, this petition will stand allowed. Annexure 3 final report and all further proceedings pursuant thereto against the petitioner and pending as C.C.No.859 of 2019 on the file Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam, are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** SMA Crl.M.C No. 1728 of 2022 10 ## **`APPENDIX OF CRL.MC 1728/2022`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure1CERTIFIEDCOPYOFFIRMADEIN1328OF 2018,ERNAKULAMTOWNSOUTHPOLICESTATIONDATED 3-8-2018 Annexure2DIGITALCOPYOFFACEBOOKPOST Annexure3FINALREPORTDATED15-12-2018 ```