Kerala High Court
Alex George vs The State Of Kerala on 19 July, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 19TH DAY OF JULY 2024 / 28TH ASHADHA, 1946
CRL.MC NO. 7694 OF 2016
CRIME NO.1479/2013 OF Palarivattom Police Station
CC NO.1076 OF 2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS- IX,
ERNAKULAM
PETITIONER/ACCUSED:
ALEX GEORGE
S/O.LATE P.D.GEORGE, RESIDING AT FLAT D6,
KENT PARADISE, THAMMANAM, MAY 1ST ROAD,
KOCHI-682 032.
BY ADVS.
S.SREEKUMAR (SR.)
P.MARTIN JOSE
P.PRIJITH
THOMAS P.KURUVILLA
AJAY BEN JOSE
MANJUNATH MENON
R.GITHESH
SAJU WAHAB
HARIKRISHNAN S.
RESPONDENTS/STATE & COMPLAINANT:
1 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.
2 HEMALATHA NAMBIAR
W/O.LATE PADMANABHAN NAMBIAR, ATED 69 YEARS,
RESIDING AT FLAT NO.D4, KENT PARADISE,
THAMMANAM, MAY 1ST ROAD, KOCHI-682 032.
BY ADV SRI.P.KRISHNANKUTTY NAIR KOLLAMALA
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
19.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CrlM.C..No.7694/2016
2
P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.7694 of 2016
----------------------------------------------
Dated this the 19th day of July, 2024
ORDER
This Criminal Miscellaneous Case is filed to quash the proceedings in C.C. No.1076/2016 on the files of Judicial First Class Magistrate Court-IX, Ernakulam as evident by Annexure-B. Annexure-B final report is filed alleging offences punishable under Sections 341, 323, 294(b) and 354A IPC.
2. The prosecution case in brief is as follows:-
The petitioner and the 2nd respondent are residents of an apartment complex namely Kent Paradise. It is alleged that on 02.11.2013 at about 7.15 a.m., while the 2nd respondent was proceeding to her residential flat after parking her car along the area marked as D6, the CrlM.C..No.7694/2016 3 petitioner/accused unlawfully restrained her uttering that 'you should not walk along my car parking area' and abused her. It is also alleged that the accused pushed the 2nd respondent and she fell down after hitting the window panes nearby and the glass panes of the window were also broken and caused hurt to her. She informed the police control room over telephone. The Police came and took her to the Medical Centre Hospital and the Doctor examined her. It is further alleged that the petitioner was inimical towards her for the reason that she had made a complaint against the petitioner before the Cochin Corporation authorities regarding an unauthorized construction.
3. Annexure-A is the FIR registered by the Palarivattom Police alleging offences punishable under Sections 341, 294(b), 323 and 354A IPC. The police after investigation submitted Annexure-B final report. The petitioner submitted that, even if the entire allegations CrlM.C..No.7694/2016 4 are accepted, no offence is made out. Therefore, the prayer in this Crl.MC is to quash the proceedings against the petitioner.
4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. Even though notice was issued to the 2nd respondent, there was no representation for the 2nd respondent.
5. The counsel for the petitioner submitted that the allegations in Annexure-B final report do not disclosed any offence against the petitioner. It is submitted that the petitioner purchased the apartment as per Annexure-C sale deed. According to the petitioner, while purchasing the apartment, the petitioner had also purchased the covered car parking area as No.D6 on the western side of the passage of Unit-1 in Kent Paradise as is evident from the recitals of Annexure-C sale deed. The recitals in Annexuer-C would show that the covered car parking area marked as D6 is meant for the exclusive use of the CrlM.C..No.7694/2016 5 petitioner for parking his car, is the submission. According to the petitioner, as evident from the scene mahazar produced along with Annexure-B final report, it can be seen that the alleged incident occurred inside the car park area marked as D6. The petitioner produced Annexure-D photographs showing the area of the car park marked as D6. It is submitted that the car park is having only a length of 480cm. The window panes of the nearby flat, if opened, will project to about 30cm. Therefore, if the window is kept opened and a car is parked in the area, it is difficult for a person to cross over that area. It is further submitted that the petitions has been filed by the 2nd respondent before the Corporation authorities about some construction done by the petitioner. It is submitted that the 2nd respondent had also filed similar complaints before the Palarivattom Police Station even before the date of the alleged incident.
CrlM.C..No.7694/20166
6. On receipt of the complaint, the Police personnel had come to the apartment complex and made enquiries. It is also submitted that a meeting of the general body of Kent Paradise Owners Association held on 23.03.2013 expressed their displeasure about such complaints made by the 2nd respondent and they have decided to bring it to the notice of the law enforcing authority also and to prove the same Annexure-E minutes of the meeting was also produced. According to the petitioner, he had noticed scratches in the body of his car parked in the car parking area and on the morning of 02.11.2013, while the petitioner was washing his car parked in D6 area, the 2nd respondent after parking her car tried to pass through the narrow passage. Then, the petitioner requested her not to use the area as a passage to the staircase to her residential apartment and requested her to take the common area meant for passage to the staircase. But, the 2nd respondent refused CrlM.C..No.7694/2016 7 the request made by the petitioner and tried to forcibly pass through the narrow area, which is clear from Annexure-E photographs, is the submission. In that process, the glass panes of the window got broken, is the further submission. Then she made a hue and cry and the residents in the nearby flats as requested by her informed the police and the case was registered, is the submission of the petitioner. According to the petitioner, even as per the scene mahazar prepared, it can be seen that the 2nd respondent has got ample space provided on the northern side of her car parked leading to the staircase. But, the 2nd respondent was adamant that she would go to the staircase only through the narrow passage left in front of the parked car and the northern wall of D2 apartment, which resulted in the incident, is the submission. According to the petitioner, there is nothing to attract the offences alleged in the case. The Public Prosecutor submitted that the contentions of the CrlM.C..No.7694/2016 8 petitioner are matters of evidence and the petitioner has to establish the same before the trial court. Hence, the Public Prosecutor submitted that, there is nothing to interfere with the final report.
7. This Court considered the contentions of the petitioner and the Public Prosecutor. The offence alleged are under Sections 341, 323, 294(b) and 354A IPC. The police charge as per Annexure-B final report is extracted hereunder:
"പ്രതതികക്കെതതികരെ 1 -)0 സസാകതി കകസാചതി കകസാർപ്പകറേഷനതിലലും മറലും പരെസാതതി കകസാടുത്തതതിലള്ള വതികരെസാധലും മൂലലും, 1 -)0 സസാകതികയെ അനനസായെ തടസലും കചെയ ഉചത്തതിൽ അസഭനലും വതിളതിച്ചു അധതികകപതിച്ചുലും മനനഃപർവലും കദേകഹസാപദ്രവലും ഏൽപതിച്ചു മസാനഹസാനതി ഉണസാകണകമന്ന ഉകദ്ദേശകത്തസാടുലും കരുതകലസാടുലും കൂടതി 2 -11 -13 തതീയെതതി രെസാവതികല 7.15 മണതിക്കെക്ക് പണതിത്തുറേ വതികല്ലേജക്ക് തമ്മനലും കദേശത്തു MAY FIRST ROAD
-നു പടതിഞസാറു വശലും വടക്കു ദേർശനത്തതിൽ സതിതതി കചെയ്യുന്ന Kent Paradise Flat സമുചയെത്തതികന്റെ D-Block കകടതിടത്തതികന്റെ തസാഴകത്ത നതിലയെതി ൽ D2 Flat-കന്റെ വടക്കു വശത്തു D-6 എന്നക്ക് എഴുതതിയെതിരെതിക്കുന്ന കസാർ കപസാർചതികന്റെ കതകക്കെ അരുകതിൽ വചക്ക് പ്രതതി 1 -)0 സസാകതികയെ അനനസായെ തടസലും കചെയ അസഭനലും വതിളതിച്ചു അധതികകപതിച്ചുലും കതസാളതിൽ പതിടതിച്ചു മരെനസാദേ ലലുംഘനലും നടത്തതി തള്ളതി CrlM.C..No.7694/2016 9 വതീഴക്ക്ത്തതിയെതതിൽ ജനൽ പസാളതിയെതിൽ തലയെതിടതിച്ചു വതീഴസാൻ ഇടയെസായെതി, പ്രതതി കമൽ വകുപ്പക്ക് പ്രകസാരെലും ശതികതിക്കെത്തക്കെ കുറലും കചെയതിട്ടുള്ള കസാരെനലും"
8. One of the offence alleged against the petitioner is under Section 294(b) IPC. In Avinash v. State of Kerala [2021 (6) KHC 357, this Court considered the ingredients of Section 294(b) IPC. It will be better to extract the relevant portion of the above judgment:
"9. With respect to the charge under S.294(b) it has to be noted that the complaint, statements and the final report does not mention exactly as to the words or statement uttered by the petitioner so as to warrant attracting ingredients of offence under S.294(b). It is to be noted that the test of 'obscenity' under S.294(b) of the Indian Penal Code is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences. The following passage from the judgment of Justice K K. Mathew reported in PT. Chacko v. Nainan (1967 KHC 231 1967 KLT 799) reads as follows: CrlM.C..No.7694/2016 10
"The only point argued was that the 1st accused has not committed an offence punishable under S.294(b) IPC., by uttering the words above-mentioned. The Courts below have held that the words uttered were obscene and the utterance caused annoyance to the public. I am not inclined to take this view. In the Queen v. Hicklin 1868-3-QB.360 at 371 Cockburn C.J. Laid down the test of 'obscenity' in these words:
".....the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences."
This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881 at 887. In Samuel Roth v. U.S.A., (1957) 354 U. S. 476, Chief Justice Warren said that the test of 'obscenity' is the "substantial tendency to corrupt by arousing lustful desires". Mr. Justice Harlan observed that in order to be 'obscene the matter must "tend to sexually impure thoughts". I do not think that the CrlM.C..No.7694/2016 11 words uttered in this case have such a tendency. It may be that the words are defamatory of the complainant, but I do not think that the words are 'obscene' and the utterance would constitute an offence punishable under S.294(b) IPC". It has to be noted that in the instance case, the absence of words which will involve some lascivious elements arousing sexual thoughts or feelings or words cannot attract the offence under S.294(b). None of the records disclose the alleged words used by the accused. It may not be the requirement of law to reproduce in all cases the entire obscene words if it is lengthy, but in the instant case, there is hardly anything on record. Mere abusive, humiliating or defamative words by itself cannot attract an offence under S.294(b) IPC."
9. Similarly in Sangeetha Lakshmana v. State of Kerala [2008 (1) KHC 812, also this Court considered the same contention. The relevant portion of the same is extracted hereunder:
CrlM.C..No.7694/201612
"4. Apart from the fact that the word "rascal" may at best amount to "scoundrel, rogue or scamp" very often used jokingly or paradoxically, the said word is not known to have any tinge of obscenity.
5. In order to satisfy the test of obscenity, the words uttered must be capable of arousing sexually impure thoughts in the minds of its hearers. The word "rascal" does not have the tendency of depraving or corrupting those minds which are open to the prurient of lascivious influences. Secondly, the occurrence itself allegedly took place when the Sub Inspector went to the flat in question in purported exercise of rendering aid to the bank for taking possession of the flat. As a matter of fact, as per Annexure B proceedings of the Debts Recovery Tribunal dated 12/07/2006 all proceedings pursuant to the possession notice dated 07/07/2006 issued by the bank were stayed till 17/08/2006. There is no dispute that the order of the Debts Recovery Tribunal was passed in the morning of 12/07/2006. If so, neither the bank nor the police officer could have proceeded CrlM.C..No.7694/2016 13 to the flat in question for taking possession of the same. Hence, the Inspector had no business at all at the premises in question, much less, do any act in discharge of his duties. If so, it cannot be said that the Sub Inspector (a public servant) was deterred by the petitioner from discharging his official duties. Such being the position, allowing the above CC Case to proceed further will amount to abuse of the process of the Court. Accordingly, all proceedings in CC 293 of 2006 on the file of the Chief Judicial Magistrate, Ernakulam is quashed."
10. Keeping in mind the dictum laid down by this Court, the facts in this case is to be considered. As per Annexure-1 FI statement, the allegation against the petitioner is like this:
"ഇനലും പതതിവുകപസാകല കസ്റ്റേഡതിയെത്തതിൽ കപസായെതി നടന്നതതിനക്ക് കശഷലും 7 .15 മണതികയെസാകട മടങതികയെത്തതി കസാരെക്ക് കപസാർചതിൽ കസാർ പസാർകക്ക് കചെയകശഷലും ഫസാറതികലക്കെക്ക് കപസാകുന്നതതിനസായെതി കസ്റ്റേയെറേതിനടുകത്തക്കു നടന്ന സമയെലും നതീ എകന്റെ കസാർ പസാർക്കെതിങതിൽ കൂടതി നടകക്കെണ എന്നക്ക് പറേഞ്ഞു അസഭനലും പറേയുകയുലും എകന്ന തടഞ്ഞു നതിർത്തതി എകന്റെ കഷസാൾഡറേതിൽ പതിടതിച്ചു തള്ളുകയുലും ഞസാൻ CrlM.C..No.7694/2016 14 കതസാടടുത്തുണസായെതിരുന്ന ജനലതികലക്കു തലയെതിടതിച്ചു വതീഴുകയുലും എകന്റെ തലയുകട വലതു വശത്തു അതതിയെസായെ കവദേന ഉണസാകുകയുലും ജന ൽ ഗസാസക്ക് കപസാട്ടുകയുലും കചെയ."
11. Even if the entire allegations in FIR and Final Report are accepted in toto, I am of the considered opinion that the offence under Section 294(b) is not attracted.
12. The other offence alleged is under Section 354A IPC. Section 354A IPC says that a man committing any of the acts like (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. Even if the entire allegation in Annexure-A FIR and Annexure-B final report are concerned, I am of the considered opinion that no offence under Section 354A IPC is made out.
CrlM.C..No.7694/201615
13. The other offence alleged is under Section 341 IPC. Section 341 IPC says about the punishment of wrongful restraint. Wrongful restraint is defined in Section 339 IPC. Section 339 IPC says that whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person. In this case, the admitted case as per Annexure-A and Annexure-B is that the 2nd respondent walked through the car parking area marked as D6. A perusal of Annexure-C would show that D6 marked in Annexure-C is the car park area of the petitioner. It is also stated in Annexure-C that the covered car park area marked as D6 is meant for the exclusive use of the petitioner for parking his car. There is no serious dispute about the place of occurrence and the alleged place of occurrence is the car park area mentioned above. Annexure-D is the photographs produced by the petitioner. According to the prosecution, the 2 nd CrlM.C..No.7694/2016 16 respondent tried to walk in between the parked car and the northern wall of D2 apartment. A perusal of the photograph would show that there is no passage to walk. Moreover, as per Annexure-C sale deed, it exclusively belongs to the petitioner. To attract the offence under Section 341 IPC wrongful restraint is necessary. Only the person has a right to proceed through a place and then there is obstruction, the wrongful constraint will attract. In the facts and circumstances of the case, I am of the considered opinion that the offence under Section 341 IPC is also not made out.
14. What remains is Section 323 IPC. Admittedly the defacto complainant fell down. According to the petitioner, she fell down because she tried to pass through a narrow place, and at that time, there was a push from the petitioner. Whatever that may be, the injury sustained to the 2nd respondent is minor. If the offence alleged under Sections 341, 294(b) and 354A IPC are not CrlM.C..No.7694/2016 17 attracted, it is doubtful whether Section 323 IPC alone, which is a non-cognizable offence, will stand in the light of the decision of this Court in James Jose v. State of Kerala [2019 (3) KHC 531]. But Section 95 IPC says that nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. Section 95 IPC is considered by the Apex Court in Veeda Menezes v. Yusuf Khan Haji Ibrahim Khan and Another [1966 KHC 702]. The relevant portion of the above judgment is extracted hereunder:
4. The expression "harm" has not been defined in the 'Indian Penal Code: in its dictionary meaning it connotes hurt, injury; damage; impairment, moral wrong or evil. There is no warrant for the contention raised that the expression "harm" in s. 95 does not include physical injury. The expression "harm" is used in many sections of the Indian Penal Code. In ss. 81, 87, 88, 89, 91, 92, 100, 104 and 106 the expression can only mean physical injury. In s. 93 it CrlM.C..No.7694/2016 18 means an injurious mental reaction. In s. 415 it means injury to a person in body, mind, reputation or property. In ss. 469 and 499 harm, it is plain from the context, is to the reputation of the aggrieved party. There is nothing in s. 95 which warrants a restricted meaning which counsel for the appellant contends should be attributed to that word. Section 95 is a general exception, and if that expression has in many other sections dealing with the general exceptions a wide connotation as inclusive of physical injury, there is no reason to suppose that the Legislature intended to use the expression "harm" in s. 95 in a restricted sense.
5. The next question is whether, having regard to the circumstances, the harm caused to the appellant and to her servant Robert was so slight that no person of ordinary sense and temper would complain of such harm. Section 95 is intended to prevent penalisation of negligible wrongs or of offences of trivial character.
Whether an act which amounts to an offence is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the knowledge or intention with which the offending act is done, and other related circumstances. There can be no absolute standard or degree of harm which may be regarded as so slight that a person of ordinary sense and temper would not complain of the harm. It CrlM.C..No.7694/2016 19 cannot be judged solely by the measure of physical or other injury the act causes. A soldier assaulting his colonel, a, policeman assaulting his Superintendent, or a pupil beating his teacher, commit offences, the heniousness of which cannot be determined merely by the actual injury suffered by the officer or the teacher, for the assault would be wholly subversive of dis- cipline. An assault by one child on another, or even by a grown-up person on another, which causes injury may still be regarded as so slight, having regard to the way and station of life of the parties, relation between them, situation in which the parties are placed, and other circumstances in which harm is caused. that the victim ordinarily may not complain of the harm.
6. The complainant's husband had, it appears, beaten the first respondent's child for some rude behaviour and Robert the appellant's servant was undoubtedly rude to the respondent's wife and instead of showing contrition he said that he would repeat his rude words. At the time of the incident in question, the appellant's husband and the first respondent exchanged vulgar abuses. Apparently the respondent was annoyed and threw a "file" of papers which caused a mere scratch to the appellant. It is true that the servant Robert was given a slap on the face by the first respondent. But the High Court was CrlM.C..No.7694/2016 20 of the view that the harm caused both to the appellant and to Robert was "trivial", and that the evidence justified the conclusion that the injury was so slight that a person of ordinary sense and temper placed in the circumstances in which the appellant and Robert were placed may not reasonably have complained for that harm. Even granting that a different view may be taken of the evidence, we do not think that we would justified in an appeal under Art. 136 of the Constitution in discreeing with the order of the High Court."
(underline supplied)
15. Keeping in mind the above principle, I am of the considered opinion that the offence under Section 323 IPC is also not attracted in the facts and circumstances of the case. Upshot of the above discussion is that no offence is made out against the petitioner.
Hence this criminal miscellaneous case is allowed. All further proceedings against the petitioner in C.C.No.1076/2016 on the file of the Judicial First Class CrlM.C..No.7694/2016 21 Magistrate Court-IX, Ernakulam, arising from Crime No.1479/2013 of Palluruthy Police Station, are quashed.
Sd/-
P.V.KUNHIKRISHNAN
nvj / JV JUDGE
CrlM.C..No.7694/2016
22
APPENDIX OF CRL.MC 7694/2016
PETITIONER ANNEXURES
ANNEXURE-A. TRUE COPY OF THE FIR IN CRIME
NO.1479/2013 OF PALARIVATTOM POLICE
STATION
ANNEXURE-B. TRUE COPY OF THE FINAL REPROT IN CRIME
NO.1479/2013 OF PALARIVATTOM POLICE
STATION
ANNEXURE-C. TRUE COPY OF THE SALE DEED
NO.1719/2000 OF MARADU SUB REGISTRY
ANNEXURE-D. TRUE COPY OF PHOTOGRAPH SHOWING THE
AREA OF THE CAR PARK MARKED AS D6.
ANNEXURE-E. TRUE COPY OF THE MINUTES OF THE
MEETING HELD ON 23/3/2013 OF THE KENT
PARADISE OWNERS ASSOCIATION
ANNEXURE-F: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO RENEW HIS PASSPORT.
ANNEXURE-G: TRUE COPY OF THE ONLINE RECEIPT ISSUED TO THE PETITIONER FOR HIS APPLICATION FOR RENEWAL OF HIS PASSPORT.
ANNEXURE-H: TRUE COPY OF THE UNDERTAKING SUBMITTED BY THE PETITIONER ON 27.9.2018 BEFORE THE PASSPORT AUTHORITIES.
ANNEXURE-I: TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT NO.H0476102 OF THE PETITIONER PETITION TO PERMIT THE PETITIONER TO RENEW HIS PASSPORT