Kerala High Court
Antony Thomas vs State Of Kerala on 7 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
CRL.MC NO. 4721 OF 2019
[TO QUASH PROCEEDINGS IN CMP NO.170/2018 ON THE FILE OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-I, KATTAPPANA WHICH IS PENDING AS
C.P.NO.15/2019 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-1, KATTAPPANA]
PETITIONERS/ACCUSED NOS.1 TO 3:
1 ANTONY THOMAS,AGED 67 YEARS
KULATHINAL HOUSE, NARIYAMPARA P.O, KATTAPPANA VILLAGE.
2 LUCY THOMAS,
AGED 62 YEARS
W/O. ANTONY THOMAS, KULATHINAL HOUSE, NARIYAMPARA P.O,
KATTAPPANA VILLAGE.
3 M.L. AUGUSTHY
AGED 67 YEARS
MAMPLAL HOUSE, KALTHOTTY P.O, KANCHIYAR VILLAGE.
BY ADV THOMAS J.ANAKKALLUNKAL
RESPONDENTS/STATE AND DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682 031
2 ANN MARY LOUIS,
AGED 49 YEARS, W/O. JACOB, ST. JOHN'S STAFF QUARTERS,
KATTAPPANA, KATTAPPANA VILLAGE-685 508
OTHER PRESENT:
R1 BY ADV. RANJIT GEORGE - SR. PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON
07.04.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.4721/2019 2
ORDER
The petitioners are the accused Nos.1 to 3 in C.P.No.15/2019 on the file of the Judicial First Class Magistrate Court-1, Kattappana. The aforesaid case was registered based on a private complaint submitted by the 2nd respondent as C.M.P.No.170/2018 alleging the offences punishable under Sections 89 and 92 of the Right of Persons with Disabilities Act, 2016 (for short 'the Act'). The allegations in the complaint are as follows:
The 2nd respondent works as the Principal of St. John's College of Nursing, Kattappana. She has a congenital visual disability of 40% of her eyes which is a benchmark disability as described under the Act. It is alleged that, the petitioners herein have obtained certain documents from the Kerala Public Service Crl.M.C.No.4721/2019 3 Commission relating to the applications and test results of the 2nd respondent under the Right to Information Act. After receiving the same, the petitioners have submitted various complaints before the University, P.S.C, Indian Nursing Council, Higher authorities of the hospital management etc., alleging that the 2nd respondent is not competent to hold the post of Principal in a nursing college. It is contended that on account of the same, the petitioner was subjected to humiliation and the same resulted in the loss of two job opportunities to her under the Government. The complaint was submitted in such circumstances alleging that the aforesaid acts of the petitioners amount to offences punishable under Sections 89 and 92 of the Act. This Crl.M.C. is filed praying for Crl.M.C.No.4721/2019 4 quashing all the further proceedings pursuant to the aforesaid crime.
2. Heard Sri. Thomas J. Anakkallunkal, Sri. Ranjit George, the learned Public Prosecutor appearing for the State. Even though notice was served upon the 2nd respondent, there is no appearance for the 2nd respondent.
3. The specific contention put forward by the learned counsel for the petitioners is that none of the offences alleged against the petitioners would be attracted even if the entire averments in Annexure-A1 complaint are taken at their face value. It is pointed out that even according to the averments in the complaint, the petitioners had submitted complaints before the authorities concerned challenging the competence of the 2nd respondent herein and there are no materials Crl.M.C.No.4721/2019 5 produced by the 2nd respondent indicating that the petitioners filed the aforesaid complaints with an intention to humiliate the 2nd respondent with respect to her disability. Therefore it was contended that the offences are not attracted
4. For considering the contentions of the petitioners, a perusal of Sections 89 and 92 of the Act are necessary which are extracted as hereunder:
"89. Punishment for contravention of provisions of Act or rules or regulations made thereunder.--
Any person who contravenes any of the provisions of this Act, or of any rule made thereunder shall for first contravention be punishable with fine which may extend to ten thousand rupees and for any subsequent contravention with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees."
"92. Punishment for offences of atrocities.-- Whoever,--
(a) intentionally insults or intimidates with intent to humiliate a person with disability in any place within public view;
(b) assaults or uses force to any person with disability with intent to dishonour him or outrage the modesty of a woman with disability;Crl.M.C.No.4721/2019 6
(c) having the actual charge or control over a person with disability voluntarily or knowingly denies food or fluids to him or her;
(d) being in a position to dominate the will of a child or woman with disability and uses that position to exploit her sexually;
(e) voluntarily injures, damages or interferes with the use of any limb or sense or any supporting device of a person with disability;
(f) performs, conducts or directs any medical procedure to be performed on a woman with disability which leads to or is likely to lead to termination of pregnancy without her express consent except in cases where medical procedure for termination of pregnancy is done in severe cases of disability and with the opinion of a registered medical practitioner and also with the consent of the guardian of the woman with disability, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."
Section 89 only provides for punishment with a fine on any person who contravenes any of the provisions of the Act or Rules made thereunder. Section 92 of the Act is a crucial provision which is made applicable to the case at hand by the 2nd respondent. From the allegations raised by the 2nd respondent, the only provision I find relevant for adjudication Crl.M.C.No.4721/2019 7 of the issue involved in this case is Section 92(a) of the Act. The aforesaid provision would get attracted when a person intentionally insults or intimidates with intent to humiliate a person with a disability in any place within public view. The specific allegation of the 2nd respondent is that, the petitioners have submitted false complaints before certain authorities highlighting the lack of competence of the 2nd respondent. On a careful scrutiny of the complaints, it cannot be concluded that the aforesaid complaints were submitted with an intention to humiliate the 2nd respondent on account of her physical disability. Merely because of the reason that, a person had submitted complaints against another person, that too based on the documents which they have received from the competent authorities Crl.M.C.No.4721/2019 8 concerned, it cannot be concluded that the filing of the same was with an intention to humiliate the person against whom the same was made. Here, going by the scheme and the specific stipulation contained in Section 92 of the Act, the only possible view is that, unless there are specific averments and materials indicating that the submission of the complaint was with the sole intention to humiliate the 2nd respondent, on account of her physical disability, the offence will not get attracted. It is true that, the specific allegation against the petitioners herein is that they have submitted false complaints before various authorities. However, the question of falsity is not a matter which the complainant can decide but it depends upon various factors and to be decided by the authorities competent in Crl.M.C.No.4721/2019 9 this regard. Another aspect to be noticed in this regard is that even as per the allegations, what was highlighted in those complaints was with regard to the competence of the 2nd respondent to hold the post which she is occupying. In my view, under no stretch of the imagination, culpability contained under Section 92 of the Act cannot be extended to an act of submitting a complaint before the authorities who are competent to consider the said complaint.One of the specific requirements for attracting the offence under Section 92(a) is that, insult or intimidation must have been made with an intention to humiliate a person with a disability in any place within public view. In this case, all the complaints were given before the authorities who are competent to decide the same. Under no circumstances, the Crl.M.C.No.4721/2019 10 aforesaid complaints submitted before those authorities can be treated as an act intended to humiliate a person in any place within public view. This is particularly because when the complaint is submitted before a particular authority, the access to the said document will be limited to only those within the said authority. In such circumstances, the same cannot be treated as an act that occurred in a place of public view. In other words, one of the basic requirements for humiliating a person in any public view is completely lacking when the materials in this case are scrutinized. In such circumstances, I am of the view that, the proceedings against the petitioners are clear abuse of the process of law and even if the entire allegations in Annexure-A1 complaint are taken into consideration, no offences are Crl.M.C.No.4721/2019 11 attracted. Accordingly, this is a fit case in which the powers of this Court under Section 482 of the Cr.P.C. can be invoked.
In the result, this Crl.M.C. is allowed and all further proceedings in C.M.P.No.170/2018 on the file of the Judicial First Class Magistrate Court-I, Kattappana, which is now pending as C.P.No.15/2019 on the file of the Judicial First Class Magistrate Court-1, Kattappana are hereby quashed.
Sd/-
ZIYAD RAHMAN A.A., JUDGE pkk Crl.M.C.No.4721/2019 12 APPENDIX OF CRL.MC 4721/2019 PETITIONERS' ANNEXURES:
ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT DATED 1.12.2017 PREFERRED BY THE 2ND RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE ORDER DATED 16.4.2019 IN CMP.
NO. 170/2018 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE I, KATTAPPANA. ANNEXURE A3 TRUE COPY OF THE RELEVANT PAGES OF THE GAZETTE NOTIFICATION OF THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016.
ANNEXURE A4 TRUE COPY OF THE DEPOSITION DATED 3.3.2018 OF THE 2ND RESPONDENT.
ANNEXURE A5 TRUE COPY OF THE DEPOSITION OF THE WITNESS DATED 16.10.2018.
ANNEXURE A6 TRUE COPY OF THE DEPOSITION OF THE WITNESS DATED 16.10.2018.