Manoj vs State Of Kerala on 23 November, 2021

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Kerala High Court

Manoj vs State Of Kerala on 23 November, 2021

1. This Crl.MC has been filed to quash the entire further proceedings against the petitioner/second accused in Crime No.384/2019 of Edathwa police station which has been registered for the offence punishable under Sections 353, 509, 120B r/w 34 of the Indian Penal Code, 1860 (in short the Code).

2. Petitioner is a practicing Advocate of Alappuzha Bar Association. Prosecution allegation is that the de facto complainant who is a Deputy Director of Collegiate Education, came to St.Alosioyus College, Edathwa on 25.3.2019 as per the direction of the Government to enquire the complaint against the Principle of the said College, the first accused. Then accused persons with the intention and preparation to cause obstruction to discharge the official duties of the de facto complainant hatched a criminal conspiracy and at about 10.30 am, first accused, refused to produce the documents and the petitioner/second accused who introduced himself as legal advisor without any reason defamed the de facto complainant stating that "you are only Deputy Director and not more than that" and also threatened her stating that "I will show you, you have to face the consequences and thereby insulted the modesty of de facto CRL.M.C.4290/2019 -3- complainant and also caused hindrance in discharging the official duties of the de facto complainant and thereby accused persons committed the offence aforementioned.

3. According to the learned counsel for the petitioner, even if the entire allegation as against the petitioner/second accused is accepted in toto, it will not attract the offences under Sections 353, 509, 120B and 506 against him. He would contend that in order to attract Section 353 IPC, it is necessary that there should have assault or use of criminal force to a public servant in execution of the duty as public servant.

4. It is relevant in this context to quote Section 353 IPC which reads as follows :-

"Assault or criminal force to deter public servant from discharge of his duty - Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

5. The learned counsel drew my attention to Hariprasad and Another v. State of Kerala and Another (2017 (1) KHC 851 = ILR 2017 (2) (Ker.) 395) wherein a learned Single CRL.M.C.4290/2019 -4- Judge of this Court held that in the absence of evidence that the petitioners used force on the officials intentionally or knowing it to be likely that such force would cause injury, fear or annoyance to them it cannot be said that the offence under Section 353 is made out.

6. Prasanth v. State of Kerala (2020 (2) KHC 78 = 2020 (2) KLT 92) was also drawn to my attention. In that case this Court was dealing with a petition filed under Section 482 Cr.P.C to quash the final report and all further proceedings in a cse charged under Sections 341, 353 and 354 IPC. In paragraph 5 of the said judgment it has been discussed by the learned Single Judge that a case of assault or criminal force to deter the public servant from discharging their duty under Section 353 of IPC arises only when a case of assault or use of criminal force by the accused is made out.

7. Paragraph 5 of the said judgment is relevant to be quoted which reads as under :-

"Having referred to the principles aforesaid, I shall now deal with the scope of various offences attributed against the accused. A case of wrongful restraint under Section 341 of the Indian Penal Code arises only when the accused obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed. A case of assault or criminal force to deter public CRL.M.C.4290/2019 -5- servants from discharging their duty under Section 353 of the Indian Penal Code arises only when a case of assault or use of criminal force by the accused is made out. It is trite that a physical act or either causing motion or cessation of motion of a person in order to the committing of an offence or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the forces used, is required to make out a case of use of criminal force. To constitute assault in terms of Section 351 of the Indian Penal Code, the accused must by any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person. The explanation of Section 351 of the Indian Penal Code clarifies that the mere words do not amount to an assault and that only words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault. Similarly, a case of assault or criminal force to a woman with intent to outrage her modesty under Section 354 of the Indian Penal Code arises only when a case of assault or use of criminal force by the accused intending to outrage or knowing it to be likely that he will thereby outrage her modesty is made out. The facts of the case need to be analyzed in the light of the scope of the offences attributed against the accused as explained.

8. Learned counsel also drew my attention to Ashish s/o Yuvraj Shinde v. The State of Maharashtra and Another (Crl.Writ Petition 1288/2017) dated 22.01.2021. It was a writ petition filed for quashing the FIR registered for the offence CRL.M.C.4290/2019 -6- punishable under Sections 353 and 506 IPC. Last portion of paragraph 8 is relevant in this context to be quoted which reads as under :-

"..................Admittedly, nobody had made such type of complaint against the petitioner. For making out the cse, falling under Section 353 of IPC, it is necessary that one should either use criminal force or assault to a person being a public servant in execution of his duty as such public servant or with intent to prevent or deter that person from 6 of 7 CrWP-1288-17, doc discharging him duty as such public servant. In this case, FIR not at all says that petitioner either used criminal force or assaulted to Shri Rameshwar Dagdu Nilange, or any one from his staff members, while they were discharging their duty or prevented them from discharging their duty."

9. Section 350 of the Code deals with criminal force and Section 351 'Assault' which are relevant to be extracted, which read as follows :-

350. Criminal force.--Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

351. Assault.--Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or prepa-

ration will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation.--Mere CRL.M.C.4290/2019 -7- words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

10. So in order to attract Section 353 of the Code it is necessary that there should have either assault or use of criminal force to a public servant in discharge of his duty as a public servant. So in the present case, admittedly as per the allegations in the FIS there is no allegation of use of criminal force and the allegation with regard to the assault on the part of the petitioner while making the remarks when the de facto complainant started enquiries as per the FIS is that, "I will show you and you have to face the consequences. The Explanation to Section 351 itself will be an answer to it because it would say specifically that "Mere words do not amount to an assault." But if at all the words gave any gestures or preparation, it may make those gestures or preparation amount to an assault. But words alleged in the FIS does not speak about any gestures or any preparation to make those gestures amounting to assault. So the alleged assault are quite short of attracting the offence under Section 353 so as to amount to assault or use of criminal force. More over, in this case, the petitioner/second accused admittedly by the de facto complainant introduced himself as the legal Advisor. The FIS itself would go to show that before CRL.M.C.4290/2019 -8- starting enquiry and after, the legal Advisor started giving instructions so as to cause obstruction to her duties and there upon she asked him to get out of the room and only the principal should remain at the time of enquiry. Petitioner being an Advocate and a legal Advisor as per Section 29 and 30 of the Advocates Act, 1961, he is legally entitled to appear if at all he has been so authorized. I would make it clear that the averments in the FIS or the documents before the Court would not reveal whether he has been authorized to participate in the enquiry proceedings or not. However, the question remains is only whether the alleged acts of the petitioner amount to an assault or use of criminal force in carrying out the enquiry proceedings of the de facto complainant or not ? On going through the entire allegations in the FIS as rightly contended by the learned counsel, the words uttered would not amount to an assault as contemplated under Section 351 or use of criminal force so as to deter the de facto complainant from carrying out the enquiry proceedings. It appears that the petitioner as a legal advisor was giving instructions to the de facto complainant to follow the procedures while carrying out enquiry which might have caused discomfort to the de facto complainant in carrying out the enquiry proceedings. But that by itself will not amount to assault or criminal force as contemplated under Section 350 CRL.M.C.4290/2019 -9- or 351 of the Code. There is no allegation at all to the de facto complainant about the use of any criminal force apart from the statement towards the end of FIS that only because of the fact that her co-workers were also there, accused Nos.1 and 2 did not attack her. But can be taken only as an assumption of the de facto complainant without any basis because she has no whisper in the FIS that the petitioner herein made any preparation or gestures so as to attack her. So evaluating the facts and circumstances, I am of the considered view that even if the entire allegations in the FIS is admitted in toto, there are no materials to attract the ingredients of the offence under Section 353 IPC.

11. The next allegation is with regard to Section 509 of the Code. The words alleged in order to attract the offence is that "what is her designation ? What is her position ?" The said words alleged to have been uttered when the de facto complainant asked the legal advisor to get out of the room and the first accused/Principle alone to be remained at the time of enquiry. It is further alleged that after uttering the above words, the Principle answered that the de facto complainant is the Deputy Director. Then the petitioner alleged to have stated that the Deputy Director only and not more than that and by the above words, accused alleged to have insulted the modesty of CRL.M.C.4290/2019 -10- the de facto complainant. The main contention of the learned counsel for the petitioner is that even if the words alleged to have uttered by this petitioner is accepted in toto, it will not constitute an offence under Section 509 of the Code. It is relevant in this context to quote Section 509 of the Code which reads as follows :-

509. Word, gesture or act intended to insult the modesty of a woman.--Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

12. Here, admittedly, the allegation is regarding utterances of words intending to insult the modesty of the de facto complainant. The question for determination is whether prima facie the words uttered by the petitioner which are quoted above, would amount to have been made intending to insult the modesty of the de facto complainant.

13. In this context, the learned counsel for the petitioner CRL.M.C.4290/2019 -11- placed reliance on Rev. Fr. Mathew Pulimoottil Episcopa v. State of Kerala and another 2014(2) KLT 1; 2014(2) KHC 96), wherein the question arises as to whether the allegation against the Vicar of the Church who asked the complainant before public "Why are you peeping? Why are you standing here ? For peeping, nothing is being done here" such words would not by itself intrude upon the privacy of the complainant nor it can be said that it was intended to insult the modesty of that woman. In the said circumstances, on a detailed discussion of case law, the learned Single Judge found that ingredients to attract the offence under Section 509 IPC are not seen in the charge sheet filed by the police or in the complaint given by the complainant. It is also held that alleged utterances of words by the petitioner has nothing to do with the modesty of the complainant and utmost imagination it cannot be said that the words alleged be uttered by the accused have got any connection with the modesty of the complainant. Rupan Deol Bajaj V. K.P.S Gill [1995 (6) SCC 194: 1995 SCC (Cri) 1059: AIR 1996 SC 309 ] has been quoted in CRL.M.C.4290/2019 -12- paragraph No.6 of that decision which reads thus:

" Since the word 'modesty' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary(Third Edition) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct". The word 'modest' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". Webster's Third new International Dictionary of the English language defines modesty as "freedom from coarseness, indelicacy or indecency' a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1993 Ed) the meaning of the word 'modesty is given as 'womanly propriety of behaviour scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions".

14. Basheer v. State of Kerala [2014 KHC 5026 :

2014 4 KLT SN 81] was also brought to my attention. In that case also offence under Section 509 IPC was charged against the petitioners. In that complaint it has been alleged that on a previous occasion she had even made an attempt to commit suicide due to the insult and defamatory words made by the petitioners and when that act was continued, she filed a complaint and after completing the investigation, final report was filed alleging CRL.M.C.4290/2019 -13- commission of offence under Section 509 IPC. The grievance of the de facto complainant in that case was that petitioners published some notice against her containing false allegations and it has been alleged that she had misappropriated amount while acting as commission agent. So finding that mere insult will not attract offence under Section 509 IPC and there should be a definite allegation of insult to the modesty of women or intrusion into the privacy of woman and mere insult or false allegation will not attract prosecution under Section 509 IPC, proceedings pending against the petitioners was quashed in that case.

15. In the present case also, the words alleged to have been uttered by the petitioner will not intrude upon the privacy of the de facto complainant nor can it be categorized as insulting the modesty of the woman. Simply because the de facto complainant feels that the alleged words uttered in the presence of her subordinates caused insult to her by itself will not be sufficient to attract the ingredients of the offence of insulting the modesty of the woman. It is true that the alleged words might have CRL.M.C.4290/2019 -14- caused some insult as Deputy Director when it was made in the presence of her Subordinates. But in order to attract a criminal offence under Section 509 IPC, it is not at all sufficient. So I do not have any hesitation to conclude that the alleged words uttered by the petitioner will not amount to insulting the modesty of the de facto complainant.

16. The next offence alleged is under Section 506 of the Code. In order to attract that offence also, the utterance made by the petitioner is "I will show you. You have to face the consequences". Section 506(1) of the Code is relevant in this context to be extracted which reads as follows :-

506 Punishment for criminal intimidation Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

If threat be to cause death or grievous hurt, etc -- and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, of with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

17. Criminal intimidation under Section 503 of the Code CRL.M.C.4290/2019 -15- is relevant to be quoted which reads thus :-

503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."

18. In this context, it is also relevant to quote Jose v. Subramanyan (2015 (3) KLT 400). In that case the allegation was that the de facto complainant who was a Panchayat Secretary was threatened that if permit is not granted, the de facto complainant would be implicated in a vigilance case. Paragraph 13, 14 and 16 of the said decision are relevant to be extracted which read as follows :-

13. Section 503 contemplates threatening another with any injury to his person, reputation or property or to the person or CRL.M.C.4290/2019 -16- reputation of any one in whom the person is interested, with an intention to cause alarm to that person or to cause that person to do an act which he is not legally bound to do or to omit to do any act which that person is legally entitled to do, as a means of avoiding the execution of such a threat.

14. It is to be appreciated that the only allegation is that the petitioner had approached the 1st respondent for permit as directed by this court for the purpose of commencing the hollow bricks factory. Merely because the de facto complainant was told that the Ombudsman and the Vigilance authorities would be approached on his failure to reconsider the application for permit, according to me, will not attract the penal provision as defined under Section 503 of the Act.

Even this allegation was absent in the original complaint preferred by the 1st respondent. A threat in order to be indictable must be made with intent to cause alarm to the complainant and a mere allegation that proceedings would be preferred before the higher authorities against the actions of a person cannot amount to criminal intimidation. Mere expression of words, without any intention to cause alarm, would not suffice. No such allegation is directed against the petitioner. No honest public servant will be alarmed if a citizen tells him that on his failure to act as per his diktats the higher authority will be approached. Such claims if made, cannot be said to have been made to cause injury to person or property.

16. 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 CRL.M.C.4290/2019 -17- whether it is expedient and in the interest of justice to permit the prosecution to continue. Where, in the opinion of the court, the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may quash the proceeding even though it may be at a preliminary stage.

19. So in order to attract the offence under Section 506, the accused should have threatened another with any injury to his person, reputation or property or to the person or reputation of anyone in whom that person is interested with intention to cause alarm to that person or to cause that person to do any act which he is not legally bound to do or omitted to do any act which that person is legally entitled to do as the means of avoiding the execution of the threats. Here, the words alleged is that "I will show you. You will have to face the consequences". There is nothing in the above words to indicate that the threatening was to cause injury either to the person or reputation of the de facto complainant or of causing alarm to her or with the intention of herself omitting to do any act which she is legally entitled to do. Here the words uttered itself will not cause any injury to the reputation of the de facto complainant or it appears to have made with the intention CRL.M.C.4290/2019 -18- to cause alarm to the de facto complainant. So the words uttered are far short of attracting any criminal intimidation as contemplated under Section 503 of the Code.

20. The other offence alleged is under Section 120B of the Code. Admittedly the petitioner/second accused is an Advocate/Legal Advisor. Section 29 and 30 of the Advocates Act, 1961 is relevant in this context to be extracted which reads thus :-

29. Advocates to be the only recognised class of persons entitled to practise law.--Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.

30. Right of advocates to practise.--Subject to provisions of this Act, every advocate whose name is entered in the 1[State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,--

(i)in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.

21. Even according to the de facto complainant the second accused introduced himself as a Legal Advisor. So CRL.M.C.4290/2019 -19- the specific case of the petitioner is also that he is the Legal Advisor of the first accused, the Principal of Edathwa St.Alosioyus College. So his act cannot be categorized as of criminal conspiracy and it can only be taken as a legal assistance to protect the client who alleged to have accepted the duty of the Legal Advisor in the enquiry proceedings. So Section 120B at any moment will not be attracted against the petitioner.

22. In State Of Haryana And Ors vs Ch. Bhajan Lal And Ors (1992 KHC 600 = AIR 1992 SC 604), the Apex Court formulated the following categories of cases where the powers under Section 482 whether the inherent powers under Section 482 are extra ordinary under Article 226 can be exercised by the court to prevent abuse of process of court or to secure the ends of justice which reads as follows :-

"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 CRL.M.C.4290/2019 -20- 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 F.I.R. 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 F.I.R. 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 CRL.M.C.4290/2019 -21- 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".

23. On an evaluation of the facts and circumstances what could be gathered is that even if the entire allegations made in Annexure-A1 FIS, are taken on its face value and accepted in its entirety it would not constitute any offence under Sections 353, 509 and 506(i) and 120B of the Code as against the petitioner/second accused.

24. In the above backdrop, it can safely be concluded that the further proceedings against the petitioner/second accused in Crime No.384/2019 of Edathwa police station will be an abuse of process of court and hence is liable to be quashed.

25. In the result, Cri.M.C allowed. All further proceedings CRL.M.C.4290/2019 -22- against the petitioner/second accused in Crime No.384/2019 of Edathwa police station is hereby quashed.

Sd/-

M.R.Anitha JUDGE Mrcs/15.11.

CRL.M.C.4290/2019

-23- APPENDIX OF CRL.MC 4290/2019 ANNEXURES ANNEXURE A1 THE TRUE COPY OF THE FIRST INFORMATION STATEMENT SUBMITTED BY THE 2ND RESPONDENT.

ANNEXURE A2 TRUE COPY OF THE FIR IN CRIME 384/2019 OF EDATHWA POLICE.

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