Jincy Jeffry @ Galeena Jeffry vs State Of Kerala
2022 Latest Caselaw 558 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                          PRESENT

                        THE HONOURABLE MR. JUSTICE K.HARIPAL

                FRIDAY, THE 14TH DAY OF JANUARY 2022 / 24TH POUSHA, 1943

                                   CRL.MC NO. 4252 OF 2020

                (CRIME NO. 269/2019 OF PERINTHALMANNA POLICE STATION)

 AGAINST THE ORDER/JUDGMENT IN CC 588/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,

                                     PERINTHALMANNA

PETITIONER/ACCUSED:

              JINCY JEFFRY @ GALEENA JEFFRY
              AGED 37 YEARS
              W/O.JEFFRY, MEDIA TECH SOLUTION, SOUTH, ERNAKULAM DISTRICT.
              BY ADVS.
              JOHN K.GEORGE
              SMT.M.B.SHYNI
              SRI.DEEPAK RAJ
              SHRI.PRASANTH K.T.
              SHRI.RAMEES P.K.


RESPONDENTS/STATE & DE FACTO COMPLAINANT:

      1       STATE OF KERALA
              REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
              ERNAKULAM, PIN-682031.
      2       SIDDIQUEL AKBAR,
              AGED 43 YEARS
              RAYIN HAJI, PATHARI HOUSE, PUTHANANGADI, PERINTHALMANNA,
              MALAPPURAM DISTRICT, PIN-679321.
              BY ADV SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER

              SR.PP - SRI. RENJITH T.R.

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON

14.01.2022 PASSED THE FOLLOWING:
 Crl.M.C.No.4252 OF 2020           2




                               ORDER

This is a petition filed under Section 482 of the Cr.P.C.

seeking to quash the charge sheet in C.C. No. 588 of 2019

pending before the Judicial First Class Magistrate's Court-I,

Perinthalmanna which arose from Crime No. 269 of 2019 of

Perinthalmanna police station.

2. It is alleged that the accused, that is the petitioner had

made posts in whatsApp and facebook defaming the reputation

of the defacto complainant; that was done from 03.05.2019 at

15.40 hours onwards touching Nisdon Infoway which is an

institution run by the defacto complainant and thus, offence

under Section 120(o) of the Kerala Police Act is alleged against

the petitioner, who is a lady. The petitioner submits that the

offence under Section 120(o) of the Kerala Police Act is not

made out. If the defacto complainant had approached the

jurisdictional Magistrate Court with a complaint alleging

offence under Section 499 of the Indian Penal Code, the

petitioner would have availed the statutory exceptions to

defend the case. Here to avert such an advantage to the

accused, he has cleverly chosen to get a crime registered

against the petitioner at his home town which is far away from

Ernakulam where the petitioner resides. The prosecution was

launched with mala fide intentions. Therefore, entire

proceedings are sought to be quashed.

3. I heard the learned counsel for the petitioner and also

the learned Senior Public Prosecutor.

4. According to the learned counsel for the petitioner,

ingredients of offence under Section 120(o) of the Kerala

Police Act are not made out. From the charge sheet it cannot

be discerned as to what is the bad post made by the petitioner.

It is also not stated that it was done repeatedly for causing

nuisance to the defacto complainant. The alleged posting was

done on 03.05.2019 alone, it has never been repeated. The

learned counsel also placed reliance on the decisions reported

in Biju V.G. (Dr) v. State of Kerala and Another [2020 (5)

KHC 685] and Jayesh P. v. Sub Inspector of Police,

Thrissur East Police Station and others [2021 (2) KHC

357].

5. On the other hand, the learned Senior Public Prosecutor

opposed the application. According to him, the petitioner had

made defamatory posts causing nuisance to the defacto

complainant and thus, the crime was launched. The learned

Senior Public Prosecutor placed reliance on Anto Joseph v.

State of Kerala and others [2016 (3) KHC 832].

6. As rightly pointed out by learned counsel for the

petitioner, Annexure-I charge sheet does not give any specific

imputation against the petitioner. It is only stated that from

03.05.2019, at 15.40 hours onwards, the petitioner had made

defamatory posts through whatsApp and facebook defaming

the Nisdon Infoway, the institution of the defacto complainant.

The case diary was called by this Court to gather as to what

was that defamatory posts made by the petitioner. The case

diary has been made available before Court.

7. The case diary indicates that on 03.05.2019, the defacto

complainant had given a complaint to the Station House

Officer, Perinthalmanna police station. According to him, he

is running computer sales business in Perinthalmanna for the

last twenty years. He had purchased white boards from Media

Tech Solutions, a firm run by the petitioner for Rs. 57,925/-.

As election was declared, some of his orders were cancelled

and an amount of Rs. 6,935/- is outstanding towards payment

to the petitioner. As the order was cancelled, four white boards

were remaining with them. While so, the accused had made

posts in whatsApp group and facebook describing the

institution of the defacto complainant very badly.

8. The case diary contains a whatsApp post reportedly

posted by the petitioner which reads thus, 'don't bill to Nisdon

Infoway the fraud peoples'. Similar posting was done in the

facebook also which is evident from the documents available in

the case diary. But details of such posts are wanting in the

charge sheet. Unless such details are made available and copy

furnished to the accused and substance of the allegations are

handed over to the petitioner, she cannot justifiably be expected

to defend the charge. Here, it does not seem that the copy of

the printout of the facebook post and that of whatsApp post

were handed over to the accused. Anyhow the allegations

against the petitioner are very vague and lacking in particulars.

9. Secondly, even assuming that such posts were made by

the petitioner in the whatsApp and facebook, I am of the view

that, that would not attract offence under Section 120(o) of the

Kerala Police Act. In order to attract Section 120(o) of the

Kerala Police Act the accused must have caused, through any

means or communication, a nuisance of himself to any person

by repeated or undesirable or anonymous call, letter, writing,

message, e mail or through a messenger. From the complaint

reported to have been preferred by the defacto complainant

before the SHO, Perinthalmanna, it cannot be assumed that

ingredients of offence under Section 120(o) of the Kerala

Police Act are disclosed.

10. After all, what is the post made by the petitioner? It is

stated that it is a post seeking to discourage people to deal with

Nisdon Infoway who have been described as fraud people. We

do not know how many persons have come across such a post.

In a whatsApp group, that would be circulated only among the

group unless it is posted elsewhere by the admin or members of

the group. In facebook, range of the subscribers may be much

higher. But from a mere posting that 'don't bill to Nisdon

Infoway the fraud peoples', it cannot be inferred, that was

intended to cause nuisance in the real meaning of the term. Of

course, it might have caused pain and agony in the mind of the

2nd respondent against whom that post was published. But we

do not know how many persons had occasion to view this post

and what was their impression about the 2nd respondent.

Anyhow, the name of the 2nd respondent does not appear in the

post. It is the institution that has been mentioned in the post.

Even if it is assumed that it was intended to defame the firm, it

is not Section 120(o) of the Kerala Police Act to be invoked,

since there are provisions in the Indian Penal Code under

Section 499 of the IPC for meeting such requirements.

11. Moreover, as rightly pointed out by the learned

counsel, the Court normally ignores trivial matters. It is only

stated that it is the firm of the 2 nd respondent that has been

described as fraud people. As rightly pointed out by the

learned counsel for the petitioner, it is liable to be ignored since

the court ignore trivial matters. Therefore, the petitioner is

entitled to get the benefit under Section 95 of the IPC which

embodies the maxim de minimus non curat lex which means

that courts usually ignore trivial matters. It appears that the

petitioner is entitled to get the benefit of Section 95 of the IPC

also.

12. After having gone through the materials on record and

also the case diary, I am not convinced that there is justification

in prosecuting the petitioner. Even though the order of the

court granting sanction for prosecution could not be seen in the

case diary, the Court is not in a position to ascertain whether

the sanction was granted under Section 155 of the Cr.P.C., after

proper application of mind. Still for the reasons already stated,

the petitioner is not liable to be prosecuted.

13. Therefore, entire proceedings in C.C. No. 588 of 2019

pending before the Judicial First Class Magistrate's

Court - I, Perinthalmanna are quashed and the petitioner shall

stand exonerated.

The Criminal Miscellaneous Case is allowed as above.

Sd/-

K.HARIPAL

JUDGE RMV/13.01.2022

APPENDIX OF CRL.MC 4252/2020

PETITIONER ANNEXURES ANNEXURE I A CERTIFIED COPY OF THE CHARGE SHEET IN C.C.NO.588/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERINTHALMANNA WHICH AROSE FROM CRIME NO.269/2019 OF PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT.