Kerala High Court
Radhakrishnan vs State Of Kerala on 27 May, 2020
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942
Crl.MC.No.6542 OF 2014
AGAINST THE ORDER IN ST NO.2112/2013 OF JUDICIAL MAGISTRATE
OF FIRST CLASS ,ERATTUPETTA
PETITIONERS:
1 RADHAKRISHNAN,
AGED 55 YEARS,
S/O.RAGHAVAN NAIR, ANANDASADANAM,
PANACHIKAPPARA, POONJARNADU BHAGAM VILLAGE,
POONJAR P.O., PIN-686 581.
2 RAMANI,
AGED 51 YEARS,
W/O.RADHAKRISHNAN, ANANDASADANAM,
PANACHIKAPPARA, POONJARNADU BHAGAM VILLAGE,
POONJAR P.O., PIN-686 581.
BY ADV. SRI.K.B.DAYAL
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM-682 031.
2 B.NANDAGOPAN,
S/O.BALAKRISHNA MENON, PURAYIDATHIL HOUSE,
PANACHIKAPPARA, POONJARNADU BHAGAM VILLAGE,
POONJAR P.O., PIN-686 581.
R1-2 BY ADV. SRI.BINU PAUL
R1 BY ADVS. SRI.SHAJI THOMAS
SRI.T.V.VINU
OTHER PRESENT:
SRI. UDAYAKUMAR. K.B.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
22-05-2020, THE COURT ON 27-05-2020 PASSED THE FOLLOWING:
Crl.M.C.No.6542/2014
-: 2 :-
Dated this the 27th day of May,2020
O R D E R
Accused 1 and 2 in S.T. No.2112/2013 on the file of the Judicial First Class Magistrate, Erattupetta, charge sheeted for offences punishable under Sections 188, 291 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') and 120(l) of the Kerala Police Act, 2011(for short 'the K.P. Act') seek to quash Annexure-A4 final report submitted by Sub Inspector of Police, Erattupetta.
2. Accused and CW1, who is the second respondent are close neighbours. The prosecution allegation is that accused constructed a kennel and have been keeping a dog causing nuisance to CW1. It is alleged that due to constant nuisance being caused to CW1, he approached the Revenue Divisional Officer, Pala and obtained Annexure-A2 order of injunction restraining the accused from causing Crl.M.C.No.6542/2014 -: 3 :- nuisance to him in the neighbourhood by keeping the dog without taking proper care of it. The specific allegation against the petitioners is that on the midnight of 07.08.2012 and on subsequent occasions, they used to harass the dog kept in the kennel tempting it to bark in loud voice and thereby caused wilful disturbance to the peaceful life of the second respondent. These allegations, according to the prosecution, have amounted to commission of offences punishable under Sections 188, 291 read with Section 34 of IPC as well as Section 120(l) of the K.P. Act.
3. I heard the learned counsel for the petitioners, second respondent and the learned Public Prosecutor.
4. The ground taken up for quashing Annexure-A4 final report is that the allegations are not sufficient to make out offences in question and further the criminal proceeding initiated is intended only to vex and harass the petitioners. It is also contended that the legality of Annexure-A2 Crl.M.C.No.6542/2014 -: 4 :- order of the learned Sub Divisional Magistrate, Pala has been challenged in W.P.(C) No.22802/2013 and the same is pending consideration before this Court. It is also the contention of the petitioners is that the learned Magistrate should not have taken cognizance of offence punishable under Section 188 of IPC except upon the complaint in writing of public servant or an officer administratively subordinate him.
5. In the course of the arguments, it was submitted by the learned counsel for the petitioners that the first petitioner has passed away during the pendency of this proceeding and second petitioner/wife alone now survives. As per Section 195 of the Code of Criminal Procedure Code, 1973 offence punishable under Section 188 of IPC could be taken cognizance of by a court only upon a complaint being submitted by the public servant in writing or an officer administratively subordinate him. In the present case, the complaint was lodged by CW1, who is a close neighbour being aggrieved by Crl.M.C.No.6542/2014 -: 5 :- the alleged criminal acts of the petitioners. On this sole ground itself, final report of the prosecution instituted for commission of offence under Section 188 has to be quashed as illegal. When there is breach of mandate of law provided by Section 195, no prosecution could be allowed to survive. Looking at Section 120(l) of the K.P. Act also, offence punishable under this provision could apply only to an act of a person carelessly letting his pet animal loose. The provision is intended to punish a person who fails to take due care of his pets under his care and control and thereby causes inconvenience to neighbours and public. Going by the impugned final report, there is no allegation that the dog kept in the kennel of the petitioners has ever been let loose by them and thereby caused inconvenience to CW1 or any member of the public. Therefore, accusation under Section 120 (l) cannot also legally sustain against the petitioners.
6. What then survives is offence punishable under Section 291 read with Section 34 of IPC. Crl.M.C.No.6542/2014 -: 6 :- Under this Section, an offender is liable to be prosecuted for an act of repeating or continuing nuisance which was restrained by an order issued by a public servant. The question as to whether the petitioners harassed the dog kept in their kennel in such a manner as to induce it to bark in loud voice causing willful nuisance to CW1 is a matter requiring decision on the basis of evidence. The learned counsel for the petitioners submitted that the accusation under Section 291 IPC also cannot sustain, since legality of the order passed by the Sub Divisional Magistrate is already under challenge in the writ petition referred to above which is pending on the file of this Court.
7. After considering the arguments addressed by the parties, I am of the view that Annexure-A4 final report to the extent it charges the petitioners with offences punishable under Sections 188 of IPC and 120(l) of the K.P. Act cannot sustain and is therefore liable to be quashed.
In the result, Crl.M.C. partially succeeds and Crl.M.C.No.6542/2014 -: 7 :- Annexure-A4 final report is quashed to the extent the petitioners are accused of offences punishable under Sections 188 read with Section 34 of IPC and Section 120(l) of the K.P. Act. The question as to whether prosecution for offence under Section 291 read with Section 34 of IPC is sustainable under law shall be examined by the learned Magistrate after hearing both sides on facts and law. Since this matter is of the year 2013, there will be a direction to the learned Magistrate to dispose of the matter within a period of three months from the date of receipt of a copy of this order.
Sd/-
T.V.ANILKUMAR,JUDGE
DST/SCS //True copy/
P.A.To Judge
Crl.M.C.No.6542/2014
-: 8 :-
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE COMPLAINT FILED BY THE
2ND RESPONDENT HEREIN BEFORE THE
JUDICIAL FIRST CLASS MAGISTRATE COURT, ERATTUPETTA ON 30/8/2013.
ANNEXURE A2 TRUE COPY OF THE RDO PALA DATED 20/3/2013.
ANNEXURE A3 TRUE COPY OF THE WRIT PETITION
NO.22802/2013 PENDING BEFORE THE
HON.BLE HIGH COURT OF KERALA,
ANNEXURE A4 TRUE COPY OF THE FINAL REPORT FILED BY
THE SHO ERATTUPATTA BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ERATTUPETTA IN CRIME NO.923/2013.
ANNEXURE A5 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VETERINARY SURGEON DATED 15/11/2013. ANNEXURE A6 TRUE COPIES OF THE CERTIFICATE OF ROUTINE VACCINATIONS GIVEN BY THE PETITIONERS TO THE DOG ISSUED BY THE VETERINARY SURGEON, VETERINARY DISPENSARY, POONJAR.
RESPONDENTS' EXHIBITS: NIL