Kerala High Court
M.V.Devassya @ Devassya ... vs Jacob on 15 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942
Crl.MC.No.7631 OF 2015
AGAINST IN CC NO.109/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
ADIMALI
PETITIONER/ACCUSED:
M.V.DEVASSYA @ DEVASSYA MULLAKKARA
AGED 65 YEARS, S/O. VARKEY, MULLAKKARA HOUSE,
KAMBALLOOR P.O., KASARAGOD.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SMT.MITHA SUDHINDRAN
SRI.M.REVIKRISHNAN
RESPONDENTS/DEFACTO COMPLAINANT & STATE:
1 JACOB
S/O. JOSEPH, KARUKAPPILLIL HOUSE, ADIMALI KARA,
MANNAMKALA BHAGOM, MANNAMKANDAM VILLAGE- 685 561.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SRI.K.B.UDAYAKUMAR, SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
15.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.7631 OF 2015 2
ORDER
Dated this the 15th day of January 2021
The petitioner is the accused in C.C. No.109/2014 on the file of
the Judicial First Class Magistrate Court, Adimali. The above case is
charge sheeted by the Adimali Police against the petitioner alleging
offence punishable under Section 153 A and 295 A IPC.
2. The prosecution case is that the petitioner with a view
to develop hatred between different groups on grounds of religion
and contra to the objective of maintaining secular harmony, issued
a notice with the title "സവശ ഷ ശശഷകൾ" and cause the same to
be circulated along with Malayala Manorama Daily, dated
14.07.2010. There is a further allegation that the notice and its
content are intended to defy the priest and the believers of the
Christian religious class namely, Roman Catholic and hence the
accused had committed the aforesaid offences. Annexure A is the
final report. This petition is filed to quash Annexure B, final report
and all its further proceedings.
3. Heard learned counsel for the petitioner and the
learned Public Prosecutor.
4. The learned counsel for the petitioner submitted that
even if the entire allegations in Annexure B, final report are
accepted in toto the offence under Section 153A and 295A IPC is
not made out. The counsel also submitted that the maximum
punishment that can be imposed under Section 153A IPC and 295A
IPC are 3 years. As per Section 468 (2) (c) Cr.P.C., there is a bar to
take cognizance after a period of 3 years in these types of cases.
The counsel also submitted that admittedly the notice was
circulated on 14.07.2010. The final report was filed only on
23.01.2014. There is no application filed by the investigating
authority to condone the delay. Even though a discharge
application was filed before the learned Magistrate, as per
Annexure C order the learned Magistrate dismissed the same
observing that in the light of Section 470(4) B the time taken for
sanction can be excluded. The counsel submitted that there is no
such provision in the Criminal Procedure Code. The learned
counsel submitted that even if the prosecution case is accepted,
the offence under Section 153 A and 295 A IPC are not attracted in
this case.
5. The learned Public Prosecutor submitted that this
Court may not interfere with the final report filed by the Police and
the petitioners may be allowed to raise these contentions before
the trial court at the appropriate stage.
6. The admitted prosecution case is that the petitioner
circulated the disputed notice on 14.07.2010. The final report was
filed only on 23.01.2014. The maximum punishment that can be
imposed under Sections 153 A and 295 A IPC are 3 years and in such
cases as per Section 468 (2) (c) Cr.P.C. there is a bar to take
cognizance after 3 years. Admittedly, in this case the final report is
filed after 3 years. From the records it is not clear whether any
application is filed to condone the delay. When the petitioner
raised this point before the learned Magistrate, the learned
Magistrate dismissed that prayer as per Annexure C order dated
09.06.2015. In Annexure C order it is stated like this:-
"2. Heard both sides. The offence alleged against the accused
are punishable with imprisonment upto 3 years. The limitation for
taking cognizance for such offence as per Section 468 of Cr.P.C. is 3
years. The crime is registered based on a notice alleged to be
published by the petitioner on 15.07.2010. The charge sheet filed on
23.01.2014 i.e. after a period of 5 months and 9 days of the period of
limitations. But as per sec 470 (4) B the time taken for sanction can
be excluded. From the records it is seen that the request for
sanction was on 09.05.2013 and the date of receipt of sanction is
07.01.2014. So this period of 7 months and 28 days can be excluded
from the period of limits and thus the case is registered with in the
period of limitation and court is entitled to take cognizance of the
offence. Petition is dismissed."
7. I fail to understand which is Section 470 (4)B
mentioned in Annexure C order. It is not mentioned whether it is a
provision in Criminal Procedure Code or a provisions in any other
statute. Hence the time to get sanction cannot be excluded based
on that provision. There is no provision like Section 470(4)B in
Cr.P.C. According to me, Annexure B charge sheet is to be quashed
for the reason that it is submitted beyond the period mentioned in
Section 462(2)(c) Cr.P.C.
8. Moreover I perused the allegations in Annexure C final
report. The admitted case of the prosecution is that the de-facto
complainant in this case is in Christian community and the accused
is also in Christian community. To attract Section 153A, promoting
enmity between different groups on grounds of religion, race,
place of birth, residence, language, etc. and doing acts prejudicial
to maintenance of harmony are necessary. To attract Section 295A
IPC, the prosecution has to establish that there is a deliberate and
malicious act intended to outrage religious feeling of any class by
insulting his religion or religious believes. The ingredients to
attract the offence under Section 295A and 153A IPC are
considered by the Apex Court in Amish Devgan v. Union of India
[(2021) 1 SCC 1]. The relevant paragraph in the above judgment is
extracted hereunder:-
"102. Clauses (a) and (b) to sub-section (1) of Section 153-A of the
Penal Code use the words "promotes" and "likely" respectively.
Similarly, Section 295-A uses the word "attempts" and sub-section
(2) to Section 505 uses the words "create or promote". The word
"likely" as explained above, in our opinion, convey the meaning, that
the chance of the event occurring should be real and not fanciful or
remote [Tillmanns Butcheries (Pty) Ltd. v. Australasian Meat Industry
Employees' Union]. The standard of "not improbable" is too weak and
cannot be applied as it would infringe upon and fall foul of
reasonable restriction and the test of proportionality. This is the
mandate flowing from the catena of judgments of the Constitution
Benches which we have referred to earlier and also the decision in
Shreya Singhal drawing distinction between advocacy, discussion and
incitement and that only the latter i.e. the incitement, is punishable
whereas the former two would fall within the domain of freedom to
express and convey one's thoughts and ideas."
9. I perused the alleged notice issued by the petitioner,
which is produced as Annexure D. Even if the entire statement in
Annexure D is accepted in toto, according to me the offence under
Sections 153 A and 295 A IPC are not made out. If that be the case,
prosecution against the petitioner is an abuse of the process of
court.
Therefore, this criminal miscellaneous case is allowed. All
further proceedings in C.C. No.109/2014 on the file of the Judicial
Magistrate of First Class, Adimali, is quashed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
Skk//18012021
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE A TRUE COPY OF THE F.I.R ALONG WITH
THE F.I STATEMENT GIVEN BY THE 1ST
RESPONDENT ,ON WHOSE COMPLAINT
BEFORE POLICE THE CASE GOT
INSTITUTED.
ANNEXURE B TRUE COPY OF THE FINAL REPORT IN
CRIME NO 559/2010 OF ADIMALI POLICE
STATION ,IDUKKI DISTRICT.
ANNEXURE C TRUE COPY OF THE ORDER DATED
09.06.2015 IN C.C.NO.109 OF 2014
PASSED BY THE COURT OF THE JUDICIAL
MAGISTRATE OF THE FIRST CLSS,ADIMALI
ANNEXURE D CERTIFIED COPY OF THE NOTICE WHICH
IS THE SUBJCT MATTER OF THE PRESENT
PROCEEDING.
RESPONDENTS' EXHIBITS: NIL
