Kerala High Court
L.Usha Rani vs State Of Kerala on 26 November, 2013
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 26TH DAY OF NOVEMBER 2013/5TH AGRAHAYANA, 1935
Crl.MC.No. 421 of 2011
---------------------------
CC NO.280/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II,
THIRUVANANTHAPURAM
......
PETITIONER(S)/ACCUSED:
------------------------------------------
L.USHA RANI, AGED 64 YEARS,
W/O.M.R.GOPALAKRISHNAN NAIR, TC.28/2727(1&2),
KUNNUMPURAM, VANCHIYOOR PO, THIRUVANANTHAPURAM.
BY ADV. SRI.R.T.PRADEEP
RESPONDENT(S)/STATE & COMPOLAINANT:
------------------------------------------------------------------------
1. STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. P.PADMANABHAN NAIR, KINCHANS,
GRAB 126, VATTIYOORKAVU PO.,
THIRUVANANTHAPURAM-695 013.
R1 BY PUBLIC PROSECUTOR SRI.P.P.PADMALAYAN
R2 BY ADV. SRI.K.P.SUJESH KUMAR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 26-11-2013, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Kss
Crl.M.C.No.421/2011
APPENDIX
PETITIONER'S ANNEXURES:
ANNEX.1: COPY OF COMPLAINT IN CMP.NO.428/2009 ADDL.C.J.M.,
THIRUVANANTHAPURAM.
ANNEX.II: COPY OF COMPLAINT DTD. 7/05/2010 IN C.C.280/10
BEFORE JFMC II, THIRUVANANTHAPURAM.
RESPONDENT'S ANNEXURES: N I L
/TRUE COPY/
P.S.TOJUDGE
Kss
K.RAMAKRISHNAN, JJ.
-------------------------------------------------------- Criminal MC No.421 of 2011
-------------------------------------------------------- Dated this, the 26th day of November 2013 Order The accused in CC No.280/10 on the file of the Judicial First Class Magistrate-II, Thiruvananthapuram, has filed this petition, to quash the proceedings against her in the above case under Section 482 of the Code of Criminal Procedure (For short, the Code).
2. The petitioner is the sole accused in the above case, alleged to have committed the offence punishable under Section 504 of the Indian Penal Code. The case was taken on file on the basis of Annexure-II complaint filed by the second respondent, alleging that the petitioner had committed the offence punishable under Section 504 of the Indian Penal Code. The case of the complainant was that the present petitioner is the elder sister of his wife. His father-in-law gave 11 cents of land to the present petitioner with a building, comprised in Survey Crl.MC No.421/11 2 No.915 of Vanchiyoor Village in the year 1966 and the remaining 10.5 cents to his wife in the year 1970. The mother-in-law sold 485 sq.links of land out of 10.5 cents in the year 2004, but in the revenue records, the name of the mother-in-law continued in respect of the said land, notwithstanding the alienation. When the property was re- surveyed, certain discrepancies crept in the registers, which were rectified in the year 2008. The present petitioner filed a criminal complaint against the second respondent and his wife, alleging forgery and conspiracy. The allegation was that they influenced the survey and revenue officials and mutated the property purporting to have 10.5 cents, by concealing the alienation of 485 sq.links of land to one Dr.Lalitha. Thereafter, building permit and approved plan were obtained on such bogus claim over 10.5 cents and a multi-storeyed building was constructed and the same was sold in portions with undivided share over the said land to each purchaser. The Crl.MC No.421/11 3 complaint filed by the present petitioner against the second respondent and his wife is produced as Annexure-I. According to the complainant, the present petitioner with a view to stall the journey of the complainant, his wife and their mentally retarded daughter to U.S.A., has filed a petition before the Magistrate Court and obtained an order to seize the passports of the complainant and his wife on 17.2.2009 and the police had seized the passports and produced them before court on 25.2.2009 and they were returned to them on the next day, i.e., on 26.2.2009. It is also alleged in the complaint that the present petitioner told her friends that " ". On the basis of Annexure I complaint, which was forwarded to the police, a crime was registered as Crime No.196/09 of Fort Police Station and that was investigated. According to the complainant, the act of the petitioner was done with an intention to insult the second respondent and to provoke him to commit an offence or breach of peace and thereby, she has Crl.MC No.421/11 4 committed the offence punishable under Section 504 of the Indian Penal Code. Annexure-II complaint was filed on 7.5.2010. The entire allegations are not sufficient to attract the offence under Section 504 of the Indian Penal Code and the Magistrate should not have taken cognizance of the case. It is only an abuse of the process of Court and the same is liable to be quashed, invoking the power under Section 482 of the Code. Hence the petition.
3. Heard the learned counsel for the petitioner, the second respondent and the learned Public Prosecutor.
4. The learned counsel for the petitioner submitted that even assuming that the entire allegations made in the complaint are true, it is not sufficient to attract the offence under Section 504 of the Indian Penal Code. Further, there is no case for the complainant that these words were uttered in the presence of the complainant so as to provoke him or are likely to provoke him. Further, even assuming that such averments were correct, it cannot Crl.MC No.421/11 5 be said that those were done with an intention to insult the complainant. Making allegations in the complaint for the purpose of initiating legal proceedings is not sufficient to attract Section 504 of the Indian Penal Code, though it may, some times, amount to an offence punishable under Section 499 of the Indian Penal Code, if they are defamatory in nature. Further, there was long delay in filing the complaint. That will go to show that there was no possibility of any provocation being caused to the complainant on account of the alleged act done by the petitioner. Moreover, in order to attract Section 504 of the Indian Penal Code, the assault must be done in the presence of the person aggrieved. In this case, there is no such thing happened. Further, the mere use of abusive language without intention to insult, is not sufficient to attract the offence under Section 504 of the Indian Penal Code. Even assuming that the entire allegations are true, it cannot be said that it was done with an intention to insult the complainant, but, it was only a narration of the things Crl.MC No.421/11 6 happened, which, the petitioner believed to be true. So, the Magistrate was not justified in taking cognizance of the offence under Section 504 of the Indian Penal Code and no purpose will be served by proceeding with the case as the ingredients of the offence are not established and the same is liable to be quashed, invoking the power under Section 482 of the Code.
5. On the other hand the learned counsel for the second respondent argued that the conduct of the complainant is irrelevant for the purpose of attracting the offence under Section 504 of the Indian Penal Code. What is relevant is whether the allegations are sufficient to attract the offence under Section 504 of the Indian Penal Code and whether the alleged act of the accused is made with an intention to insult or knowing that it is likely to provoke the complainant to commit an offence or breach of peace. The resultant act of the complainant is not an ingredient for attracting such offence. Further, it is not necessary that the Crl.MC No.421/11 7 words spoken must be face to face. If the Magistrate has exercised his discretion on the basis of the allegations in the complaint and taken cognizance of the case, then, the same cannot be quashed by this Court, invoking Section 482 of the Code. The allegations are sufficient to attract the offence and the ingredients necessary to attract the offence were made in the complaint and all other things are matters for evidence. If a decision will have to be taken on the basis of evidence and not on the question of law alone and a prima facie case is made out, then, the same cannot be quashed invoking the power under Section 482 of the Code. So, he prayed for dismissal of the application.
6. The learned Public Prosecutor also supported the the arguments of the learned counsel for the second respondent.
7. The facts of the case are that the second respondent is the brother-in-law of the petitioner herein (petitioner is the elder sister of the wife of the complainant). Crl.MC No.421/11 8 There were disputes between the parties regarding the extent of the property and a complaint was filed by the present petitioner against the complainant, alleging that he had forged certain documents and effected manipulation of entries in the revenue records and that complaint was forwarded to the police and a case was registered against the complainant. As part of that complaint, the present petitioner has filed an application before the Magistrate for seizing the passports of the complainant, his wife and son and the passports were seized and thereafter released to him by the Magistrate on the next day. It is also alleged in the complaint that the present petitioner had declared to the friends and relatives that she will see as to how the complainant, his wife and son will be going abroad as " ". According to the complainant, these allegations were made with an intention to insult the complainant and to provoke him to commit breach of peace or an offence or knowing that it is likely to provoke the Crl.MC No.421/11 9 complainant to do the same and thereby she had committed the offence punishable under Section 504 of the Indian Penal Code.
8. Section 504 of the Indian Penal Code reads as follows :
"504. Intentional insult with intent to provoke breach of the peace - Whoever intentionally insults and thereby gives provocation to any person intending or knowing it to be likely that such provocation will cause him to break the public peace or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
9. It is clear from the above section that in order to attract Section 504 of the Indian Penal Code, the following things must be established :
a. That the accused insulted some person b. That he did so intentionally c. That he thereby gave provocation to some person d. That he then intended or knew it to be likely that the provocation given will cause him to break public peace or commit any other offence.
Crl.MC No.421/11 10
10. The mere use of abusive words is not sufficient to attract the section. It must be done with an intention to insult a person, against whom, it was intended to be made. It is also settled law that the mere forbearance of the person insulted from reacting is not sufficient to protect the offender. The only two points necessary are that the person insulted must be present and such insult must give provocation to the person so insulted then, or soon after, to commit a breach of peace. It is also necessary that in order to sustain the conviction under this Section, it is sufficient for the complainant to prove that the abusive language was such as would ordinarily provoke the man or woman, his or her decision to commit breach of peace. This was so held in the decision reported in re S.Gopal (AIR 1953 Mad.413). The same view has been reiterated in the decisions reported in re Karumuri Venkataratnam (AIR 1948 Mad.9), Allipuram Subbiah v. Bojja Venkata Crl.MC No.421/11 11 Subbamma (AIR 1942 Mad. 672), Abraham v. State and another (AIR 1960 Ker.236), Pichai Pillai v. T.R.Ramaswamy Ayyangar (AIR 1940 Mad.681), Karumanchi Veerangaiah v. Katta Mark and others (1976 CRL.L.J.1690), Serei Behera v. Bipin Behari Roy (AIR 1959 Orissa 155), Mohammed Ibrahim and others v. State of Bihar (2010 CLR.L.J.2223) and B.R.Meena v. Mangal Das Chiman Barot (1987 (supp) SCC 597).
11. In the decision reported in Gul Muhammad v. Akbar Ali (AIR 1927 Lahore 129(2), it has been held that some delay in initiating action is not sufficient to come to the conclusion that the offence under Section 504 of the Indian Penal Code is not attracted. It was a case, where the letter was addressed to the complainant by the accused containing some provocative words and it was read by the complainant and after some time, he filed the complaint. The counsel for the respondent herein relied on the above decision for the proposition that it is not Crl.MC No.421/11 12 necessary that the complainant must be present face to face when the accused made the alleged abusive words, which are likely to provoke the complainant. It may be mentioned here that in that case, though the complainant and the accused were not face to face, the letter was addressed to the complainant and the complainant received and read the letter and the letter was written by the accused with an intention to insult the complainant and addressed to him so that it will reach him alone. So, it will have the effect of abusing a person face to face though it was not done in his presence.
12. In order to attract the offence under section 504, the words spoken must be face to face to the complainant or it must be addressed to the complainant by way of a letter and when it reaches the complainant, it will have the impact of provoking the complainant to do certain things mentioned in the section. So, it is clear from this that the immediate effect of the alleged insult must be direct to Crl.MC No.421/11 13 the complainant and not through somebody else. So, the submission made by the counsel for the second respondent that even if it is made through somebody else, the section will be attracted, does not impress upon me as that will go against the very purport of the section itself. Even assuming that certain allegations were made in a complaint filed before a court of law, sometimes, the allegations made, may amount to defamation. But, that does not mean that that is sufficient to attract the offence under Section 504 of the Indian Penal Code.
13. The learned counsel for the second respondent relied on the decision reported in Fiona Shrikhande v. State of Maharashtra (2013(2) KLD 462 (SC), wherein, the Honourable Supreme Court has observed, relying on the decision in Nagawwa v.Veeranna Shivalingappa Konjalgi and others (1976) 3 SCC 736) that "once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is Crl.MC No.421/11 14 not for the High Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have." In that decision also, the incident happened in the presence of the complainant and the accused had made some accusations and abusive words in the presence of the complainant, which were considered to be sufficient for purpose of attracting Section 504 of the Indian Penal Code. So, from all these decisions, it is clear that at the time of making the accusation, the complainant must either be present in person before the accused or at least, it must be addressed to the complainant by the accused, in the form of a letter which reaches the complainant and on reaching it, it is likely to cause provocation as required under the Section.
14. If something is written in the complaint to the authorities, it appears, is not the intention of the Legislature Crl.MC No.421/11 15 to bring that into the ambit of Section 504 of the Indian Penal Code. That may give a cause of action for the complainant to proceed against the accused under Section 500 of the Indian Penal Code, if the ingredients of defamation are satisfied. Further, in this case, the complainant had no case that the accused had used any abusive words in front of him or addressed any letter to him, containing such provocative words. Merely because certain things were done by the accused as part of his legal action, that cannot be said to be done with an intention to insult the complainant, so as to attract the offence under Section 504 of the Indian Penal Code.
15. Further, in the complaint itself, he had only reiterated the allegations made in the complaint made by the petitioner before the Magistrate and action taken by the Magistrate. Further, it is also alleged in the complaint that the accused had made some comments to the relatives and friends of the complainant, stating that " Crl.MC No.421/11 16
". So, the complainant had no occasion to hear these words. Mere uttering of words is not sufficient to attract the offence and its impact and the manner in which it was uttered etc, are all relevant factors for which the presence of the complainant is necessary when such provocative words were alleged to have been uttered by the petitioner. If it is brought to the notice of the complainant by others, there is every possibility of that being improved or embellished while reproducing the words and that possibility cannot be ruled out. Under such circumstances, it cannot be said that this is sufficient to attract the offence under Section 504 of the Indian Penal Code. On going through the allegations in the complaint and also the sworn statement of the complainant, the Magistrate has only reproduced the ingredients of the Section and taken cognizance of the case. It cannot be said that the Magistrate had actually exercised his discretion judicially on this aspect.
Crl.MC No.421/11 17
16. If this Court is convinced that the averments are not sufficient to attract the offence under Section 504 of the Indian Penal Code on the basis of the allegations in the complaint or the evidence adduced by the complainant, then, this Court can invoke the power under Section 482 of the Code to quash the proceedings. In view of the discussions made above, I feel that this is a fit case where the power under Section 482 of the Code has to be invoked to quash the proceedings as the allegations in the complaint and the sworn statement of the complainant recorded by the Magistrate are not sufficient to attract the offence under Section 504 of the Indian Penal Code and the complaint and consequential proceedings initiated by the Magistrate as CC No.280/10 against the petitioner are liable to be quashed and I do so.
In the result, this petition is allowed and the proceedings in CC No.280/10 pending before the Judicial First Class Magistrate-II, Thiruvananthapuram, taken Crl.MC No.421/11 18 cognizance on the basis of Annexure-II complaint against the petitioner is hereby quashed.
Office is directed to communicate this order to the concerned Magistrate Court forthwith.
K.RAMAKRISHNAN,JUDGE sta Crl.MC No.421/11 19