Kerala High Court

Sunil James vs State Of Kerala on 4 December, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
   SATURDAY, THE 4TH DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943
                          CRL.MC NO. 5847 OF 2019
   AGAINST THE ORDER/JUDGMENT IN CC 2492/2018 OF ADDITIONAL CHIEF
                       JUDICIAL MAGISTRATE, ERNAKULAM
PETITIONER/S:

            SUNIL JAMES
            AGED 45 YEARS
            S/O. JAMES, VALIYAPARAMBIL HOUSE,
            OCHAMTHURUTHU, CHITTOOR ROAD,
            PACHALAM,ERNAKULAM-682 008

            BY ADV K.M.VARGHESE


RESPONDENT/S:

     1      STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM-682 031

     2      SUB INSPECTOR OF POLICE,
            ERNAKULAM TOWN NORTH POLICE STATION,
            KOCHI CITY, ERNAKULAM NORTH P.O.,
            ERNAKULAM-682 018

     3      T.K.SIVAN,
            AGED 58 YEARS
            S/O. KRISHNAN,THATTASSERY HOUSE,
            PALLIKKAVU TEMPLE AREA, VADUTHALA,
            CHERANELLOOR VILLAGE, VADUTHALA P.O.,
            ERNAKULAM-683 023

            BY ADV.

            PP-SRI.ARAVIND V. MATHEW


     THIS   CRIMINAL    MISC.   CASE   HAVING   COME   UP   FOR   ADMISSION   ON
04.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 5847 OF 2019
                                 2


                             ORDER

The petitioner is the sole accused in C.C.No.2492/2018 on

the file of the Additional Chief Judicial Magistrate Court,

Ernakulam which arises from Crime No.1901/2018 of Ernakulam

Town North Police Station.

2. The offence alleged against the petitioner is under

Section 153 of the IPC. The aforesaid crime was registered on

the basis of a complaint submitted by the 3 rd respondent herein,

who is the Secretary of Samastha Kochi Pulaya Mahasabha,

Vaduthala branch. The allegation contained in the said

complaint is that on 25.11.2018 at 10.15 a.m., their branch

President P.K.Rajan saw the petitioner herein shaking and

attempting to remove an indicator board of their organization

installed by them on the side of Chittoor Road and attempted to

make provocation for rioting.

3. After conducting an investigation, the 2 nd respondent

filed a final report against the petitioner for the offence under

Section 153 of IPC. This criminal M.C. is filed for quashing the CRL.MC NO. 5847 OF 2019

entire proceedings pursuant to the said crime as according to

the petitioner no offence is made out.

4. Heard Sri. K.M. Varghese, the learned counsel for the

petitioner and Sri. Aravind U Mathew, the learned Public

Prosecutor for respondent Nos. 1 and 2. Even though notice was

served upon the 3rd respondent/ de facto complainant there is

no appearance for him.

5. The learned counsel for the petitioner contends that,

even if the entire allegations contained in Annexure-A1 final

report are accepted for its face value, no offence under Section

153 of the IPC is attracted. It is pointed out that the name

board itself was placed in a public place for which the de facto

complainant had no right. My attention was also brought to the

order passed by this Court in WP(C) No. 42574 of 2018 dated

26.02.2019 which is produced along with Crl.M.C. as Annexure

A2, wherein this Court issued various directions to the

authorities concerned to remove all illegal boards, banners,

flags etc. which are placed in public places. The learned counsel CRL.MC NO. 5847 OF 2019

for the petitioner also places reliance upon the exception

contained under Section 95 of the IPC, on the ground that even

going by the allegations contained in the final report, no

significant damage has occurred to the board and the

allegations is that he was found shaking the board. In such

circumstances he seeks for an order quashing all further

proceedings in Annexure-A1 final report.

6. Per contra, the learned Public Prosecutor would

opposes the said application and points out that the averments

made in Annexure-A1 final report are sufficient to constitute

the offence under Section 153 of the IPC.

7. The short question that arises is as to whether the

allegations contained in Annexure-A1 final report are sufficient

to attract the offence under Section 153 of IPC. The aforesaid

provision reads as follows;

" Wantonly giving provocation with intent to cause riot--if rioting be committed--if not committed.--

Whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be CRL.MC NO. 5847 OF 2019

committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both."

8. As per the aforesaid provisions, in order to attract the

same, the accused must have malignantly or wantonly

committed an illegal act or must have given provocation to

cause the offence of rioting. The offence of rioting is defined

under Section 146 of IPC which reads as follows;

" 146. Rioting.--Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting."

9. When both the above provisions are considered, it can

be seen that, the act alleged to have been committed by the

accused must have been done with the intention to cause

rioting or to provoke any person to commit rioting as defined

under Section 146 of the IPC. Going by the specific definition of

'rioting' as contained under Section 146 of the IPC, under no

stretch of imagination it can be concluded that, an act of CRL.MC NO. 5847 OF 2019

attempting to cause damage to a name board installed in a

public place was committed with an intention to cause any

rioting or provoke any person to commit riot. Admittedly, the

board was that of a private organization and mere fact that the

said organization was formed with the intention to protect the

welfare of a particular community, is not sufficient to arrive at

the conclusion that, any attempt as against the board would

result in rioting or would provoke such an act. Apart from the

above, it is also a relevant fact that to be taken into

consideration, the aforesaid board was placed in a public place

and even according to the de facto complainant has no case

that they have authorization to install such board in a public

place. In Raju Thomas V. State of Kerala (2012 (4) KLT

499) similar question was considered by this Court in respect of

the offence under Section 153 of IPC and in para 5 there on

observed as follows;

" 5. To constitute an offence under Section 153 of IPC, the essential ingredients thereof have to be made out. The 'act' imputed against he accused is illegal, he has done such act malignantly or wantonly, and, he has given provocation to any person intending or knowing that such provocation will cause the offence of CRL.MC NO. 5847 OF 2019

rioting are the ingredients to establish the offence. To hold that an act is done malignantly, it must be an unlawful act done intentionally without just cause or excuse. "Malignant" means extreme malevolence or enmity; violently hostile or harmful. The act imputed, if not malignantly, should be at least shown to have been done wantonly; "wantonly" simply means recklessly, thoughtlessly, without regard for right or consequences. More than that the act has been done malignantly or wantonly, it is also required to be shown that the act of the accused was illegal. A notice containing defamatory statement put up in a board at a public place against the accused was torn of by him. Even if that is accepted on its face value, it cannot be viewed as an unlawful act done by him out of extreme malevolence or enmity or recklessness. Notice board contained defamatory statement against the accused is not disputed. None has a right to exhibit such a notice board in a public place cannot also be lost sight of. Even assuming that the complainant should have approached the law enforcing agency rather than taking action by himself, in the given facts and circumstances presented, it cannot be stated that tearing of the notice board containing defamatory statement against him and that too exhibited in a public place was an act done by him with intend to provoke any person to commit the offence or rioting. Where the exhibiting of such a board against him at a public place itself is shown to be illegal, tearing away that notice board, even if such allegation is accepted as true, cannot be considered as an act intentionally done to provoke any other person to commit rioting. At best, it was an act of removing a notice board affecting his self respect and dignity when it was exhibited by some miscreants at a public place."

10. The observations made by this Court in Raju

Thomas's case (Supra) are clearly applicable to the facts of

this case. It is evident from the records that the board itself was CRL.MC NO. 5847 OF 2019

installed in a public place and the de facto complainant had no

authority to install such board.

11. Here the allegation is with regard to the attempt to

remove a board which is in a public place. Since the board itself

was placed in a public place without any legal authority to

install, the act alleged against the petitioner herein by itself

cannot be treated as an illegal act so as to warrant a proceeding

under Section 153 of Indian Penal Code. It is also a fact that no

actual damage is also sustained to the board. In such