Vipin Kumar v. State of Kerala and Others

``` CRL.MC NO. 6074 OF 2022 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 ``` ``` CRL.MC NO. 6074 OF 2022 ``` ``` AGAINST CC 3800/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ``` ## **`NEYYATINKARA`** ## **`PETITIONER:`** ``` VIPIN KUMAR, AGED 33 YEARS S/O VIJAYAKUMAR, VIMAL NIVAS, CONVENT ROAD, PRAVACHAMBALAM, KALLIYOOR, NEMOM PO, THIRUVANANTHAPURAM, PIN - 695020 BY ADVS. V.G.ARUN (K/795/2004) V.JAYA RAGI R.HARIKRISHNAN (KAMBISSERIL) NEERAJ NARAYAN AVANEETH S.R. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER NEMOM POLICE STATION, THIRUVANANTHAPURAM, PIN - 695020 3BEATRICE, AGED 34 YEARS D/O BABY, BADANI HOUSE, NEAR ULATTIMOOLA SNAP HALL, PEREKONAM, VAZHICHAL DESOM, OTTASEKHARAMANGALAM, NEYYATTINKARA, THIRUVANANTHAPURAM WORKING AS MANAGER, PONNUS CHITTY FUND, PALLICHAL VILLAGE, PRAVACHAMBALAM, THIRUVANANTHAPURAM, PIN - 695125 ``` ``` R1 &R2 BY SRI.G.SUDHEER-PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 6074 OF 2022 ``` ``` 2 ``` ## K.BABU, J . -------------------------------------- Crl.M.C.No.6074 of 2022 --------------------------------------- Dated this the 6th day of June, 2023 ## O R D E R The petitioner is the sole accused in C.C.No.3800/2016 on the file of the Judicial First Class Magistrate Court I, Neyyattinkara. He faces charges under Sections 448 and 294(b) of IPC and Section 119(1)(b) of the Kerala Police Act (for short 'the KP Act'). 2. Prosecution in this case was initiated based on Annexure A2 FIS dated 4.4.2014 lodged by the Manager of Ponnus Chitty Fund, Pravachambalam, Thiruvananthapuram. The prosecution case is that on 4.4.2014, the petitioner committed house trespass by entering into the office of the Ponnus Chitty Fund, showered abuses on the staff members, took photographs of the staff and threatened that he would disseminate the same through internet. 3. The Nemom Police registered FIR No.506/2014, conducted investigation and submitted final report before the jurisdictional Magistrate alleging the above said offences. ``` CRL.MC NO. 6074 OF 2022 ``` ``` 3 ``` 4. The petitioner seeks to quash the FIR, final report and all further proceedings on the ground that the materials placed by the prosecution before the Court do not reveal the offences alleged against the petitioner. 5. The learned counsel for the petitioner contended that the prosecution failed to establish the offence under Section 119(1)(b) of the KP Act as it failed to show that the petitioner took photographs of any private act of any women employed in the office. The learned counsel relied on Abdulla Rizwan P.A and Ors. v. State of Kerala and Ors. (2018(3) KHC 778) to substantiate his contention. 6. Section 119 of the KP Act reads thus: " 119 : Punishment for atrocities against women: (1) Any person who- - (a) performs, in public places, any sexual gestures or acts degrading the dignity of women; or (b) takes photographs or records, videos or propagates them at any place in a manner affecting the reasonable privacy of women, shall, on conviction, be punished with imprisonment which may extend to three years or with fine not exceeding ten thousand rupees or with both. (2) Where any service provider or person-in-charge of a public place, who fails by deliberate omission to take reasonable action for the time being to prevent such a criminal act, if the victimized woman complaints that an offence under sub-section (1) had taken place in their presence or fails to inform the authorities concerned shall be an ``` CRL.MC NO. 6074 OF 2022 ``` ``` 4 ``` offence which on conviction be punishable with fine upto one thousand rupees." 7. In order to attract the offence under Section 119(1)(b) of the KP Act, the offender shall take photographs or record videos or propagate them at any place in a manner affecting the reasonable privacy of women. In the present case, the prosecution records would reveal that the petitioner, a subscriber to a chitty run by the firm, came there on getting information that the amounts due to the subscribers were being distributed; later a quarrel occurred there. He abused some of the staff members. In the course of the events, he took the photographs of the staff members including women. He took the photographs in the presence of several others, which is evident from the first information statement and the statements given by the witnesses. In order to attract the offence under Section 119(1)(b) of the KP Act, one has to establish that the offender has transgressed into the privacy of a woman. While dealing with a similar fact situation in Abdulla Rizwan P.A (supra) this Court held thus: "8. There is yet another angle to the above. Even assuming that the petitioners are the persons who published it in the social media, whether it falls within the provisions of Section 119 of Kerala Police Act is still doubtful. The act videographed and published were the acts which are done by her in open, in the college ground, and in the presence of ``` CRL.MC NO. 6074 OF 2022 ``` ``` 5 ``` several other persons, as is discernible from the complaint itself. Necessarily, when one complains into the right of transgression into the privacy, it presupposes the existence of a private act or an act which was within the notice of public. When an act is done openly in the presence of other persons, it is doubtful whether the publication of that may constitute an offence." 8. In Abdulla Rizwan P.A (supra) this Court held that transgression into the privacy presupposes the existence of a private act. In the present case, the prosecution allegations do not reveal that the petitioner took the photographs of any private acts of women or any other staff members. Therefore, the irresistible conclusion is that the prosecution failed to establish the offence under Section 119(1)(b) of the KP Act. 9. Coming to the offence under Section 294(b) of IPC, the only allegation is that the petitioner abused the staff members. The prosecution has not alleged the exact words used by the petitioner/ accused. In order to attract the offence under Section 294(b) of IPC, the act alleged must have a sexual content or must have a lascivious element involved. This is fortified by the decision of this Court in Latheef v. State of Kerala (2014(2) KLT 987), Abdul Razak v. State of Kerala and Ors . (2019(5) KHC 950) and Abdulla Rizwan P.A (supra). The prosecution has therefore, failed to place any prima facie material to attract the offence under Section 294(b) of IPC. ``` CRL.MC NO. 6074 OF 2022 ``` ``` 6 ``` 10. The prosecution also alleges that the petitioner committed the offence under Section 448 of IPC. Section 448 deals with punishment for house trespass. House trespass is defined in Section 442 of IPC, which reads thus: " 442. House-trepass : Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass." 11. To attract the offence under Section 442 r/w Section 448 of IPC, the offender has to commit a criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property. Criminal trespass is defined in Section 441 of IPC, which reads thus: " 441. Criminal trespass .—Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”." 12. To attract the offence under Section 448 of IPC, there shall be ``` CRL.MC NO. 6074 OF 2022 ``` ``` 7 ``` criminal trespass. The essential ingredients of criminal trespass are the following: - "(1) Entry into or upon property in the possession of another. - (2) If such entry is lawful, then unlawfully remaining upon such property. - (3) Such entry or unlawful remaining must be with intent- - (a) to commit an offence; or (b) to intimidate, insult or annoy any person in possession of the property." 13. In the given facts, the prosecution records do not reveal that the petitioner entered into the chitty firm with intent to commit an offence. Being a subscriber, he has every right to enter into the building. He came to the chitty firm on getting information that the amounts due to the subscribers were distributed by the firm, which remained closed for ten days. At any stretch of imagination, it could not be concluded that the petitioner committed house trespass to attract the offence under Section 448 of IPC. 14. On the exercise of extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 of Cr.P.C, the Supreme Court in State of Haryana and others v. Bhajan Lal (1992 Supp. (1) SCC 335) held thus: ``` CRL.MC NO. 6074 OF 2022 ``` ``` 8 ``` “ 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. (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 ``` CRL.MC NO. 6074 OF 2022 ``` ``` 9 ``` 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.” 15. The present case is fully covered by category (3), as enumerated in State of Haryana case (supra) . Hence, I am of the view that, in the present facts and circumstances, the criminal proceedings consequent to the final report in C.C.No.3800/2016 are liable to be quashed. In the result, the Crl.M.C is allowed. The FIR and Final Report in Crime No.506/2014 of Nemom Police Station and all further proceedings in C.C. No.3800/2016 on the file of the Judicial First Class Magistrate Court I, Neyyattinkara stand hereby quashed. Sd/- K. BABU JUDGE ab ``` CRL.MC NO. 6074 OF 2022 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 6074/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1THE CERTIFIED COPY OF THE FIR IN CRIME NO. 506/2014 OF NEMOM POLICE STATION DATED 04.04.2014 Annexure A2THE CERTIFIED COPY OF THE FIRST INFORMATION STATEMENT GIVEN BY THE ALLEGED DE-FACTO COMPLAINANT IN ANNEXURE A1 FIR Annexure A3THE CERTIFIED COPY OF THE FINAL REPORT FILED BY THE SUB INSPECTOR OF POLICE, NEMOM POLICE STATION BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, NEYYATTINKARA DATED 20.12.2016 IN CRIME NO. 506/2014 ``` RESPONDENTS ANNEXURES: NIL