Kerala High Court
P.N.Shantakumari Amma vs State Of Kerala on 29 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
CRL.MC NO. 5196 OF 2019
CRIME NO.523/2018 OF KASABA POLICE STATION
[TO QUASH PROCEEDINGS IN ST 79/2019 ON THE FILE OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-III, KOZHIKODE]
PETITIONER/3RD ACCUSED:
P.N.SHANTAKUMARI AMMA,
AGED 75 YEARS
W/O.LATE K.KRISHNANKUTTY MENON, KRISHNA HOUSE,
P.O.KARANTHUR, KOZHIKODE- 673571.
BY ADVS.
S.K.PREMRAJ
SRI.S.K.KRISHNAKUMAR
SRI.E.G.GORDEN
MRS.S.SREELAKSHMY
RESPONDENT/DE-JURE COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM- 682018.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
01.04.2022, THE COURT ON 29.06.2022 PASSED THE FOLLOWING:
CRL.MC No.5196 of 2019 2
O R D E R
The petitioner is the 3rd accused in ST
No.79/2019 on the file of the Judicial First Class
Magistrate Court-III, Kozhikode. The aforesaid case
arises from Crime No.523/2018 of Kasba Police
Station, Kozhikode, for the offences punishable
under Sections 143,145,147 and 283 r/w. Section 149
of the Indian Penal Code (IPC).
2. The prosecution case is that on 10.10.2018,
at about 11 a.m., the petitioner addressed a
gathering at the roadside at Palayam junction,
Kozhikode, and also held a protest march against
the implementation of the verdict of the Hon'ble
Supreme Court relating to entry of women in
Sabarimala temple. It is alleged that, as part of
the protest, the petitioner and the other named
accused along with 800 unidentified people raised
slogans and sat on the public road at Palayam
junction, causing obstruction to the vehicles and
local people. Annexure-A1 is the F.I.R, and
Annexure-A2 is the final report submitted by the
police. This Crl.M.C. is filed for quashing all
further proceedings pursuant to Annexure-A2 final
report, which is now pending as S.T.No.79/2019
before the Judicial First Class Magistrate Court-
III, Kozhikode.
3. Heard Sri. S.K.Premraj, the learned counsel
for the petitioner, Sri.Sudheer Gopalakrishnan, the
learned Public Prosecutor.
4. The main contention put forward by the
learned counsel for the petitioner is that, none of
the offences alleged against the petitioner are
attracted. It is pointed out that, one of the
primary offences is under Section 283 of the Indian
Penal Code, which deals with the obstruction caused
to the public way or public line of navigation. In
this case, it is pointed out that, in the list of
witnesses, all the persons cited by the prosecution
to prove the incident are official witnesses. Even
though a public way has been allegedly obstructed
by the petitioner and the other accused persons, no
one among the public or users of the road were made
as witness and according to the learned counsel for
the petitioner, this by itself would reveal the
false nature of the allegations. It is further
contended that, the petitioner herein is implicated
on the strength of Section 149 of IPC and according
to him, the said offence would get attracted only
if the assembly of people by itself was intended
for committing an offence. It is pointed out that,
in this case, even going by the allegations, the
petitioner had participated in a protest march.
Conducting a protest march by itself cannot be
treated as an offence. In such circumstances, it is
pointed out that, none of the offences alleged
against the petitioner are made out from the
materials available on record.
5. On perusal of the records, I am of the view
that, the contentions put forward by the learned
counsel for the petitioner need not be taken into
consideration at this stage before this Court. This
is particularly because, Section 258 Cr.PC provides
a remedy to a person accused of a summons case to
approach the Magistrate concerned to stop the
proceedings in certain circumstances. The
petitioner can take up all the contentions raised
in the Crl.M.C, before the learned Magistrate by
filing an appropriate petition for invoking Section
258 Cr.PC. The learned counsel points out that, the
petitioner is an aged person, and she is having
some physical difficulty in appearing before the
learned Magistrate in person. It is also
discernible from the records that, the petitioner
was a Judicial officer who retired from service as
a selection grade District Judge after completing
26 years of service. In such circumstances, the
learned counsel for the petitioner seeks personal
exemption from appearing before the learned
Magistrate and to move an application under Section
258 Cr.PC through her lawyer.
6. In Bhaskar Industries Ltd. v. Bhiwani Denim
& Apparels Ltd. and Others [(2001)7 SCC 401], the
Hon'ble Supreme Court specifically laid down the
principles and the circumstances under which an
accused can appear through his counsel before the
Magistrate. In paragraph 17 of the said judgment,
it was observed as follows:
"17. Thus, in appropriate cases the
Magistrate can allow an accused to make even
the first appearance through a Counsel. The
Magistrate is empowered to record the plea
of the accused even when his Counsel makes
such plea on behalf of the accused in a case
where the personal appearance of the accused
is dispensed with. S.317 of the Code has to
be viewed in the above perspective as it
empowers the court to dispense with the
personal attendance of the accused (provided
he is represented by a Counsel in that case)
even for proceeding with the further steps
in the case. However, one precaution which
the court should take in such a situation is
that the said benefit need be granted only
to an accused who gives an undertaking to
the satisfaction of the court that he would
not dispute his identity as the particular
accused in the case, and that a Counsel on
his behalf would be present in court and
that he has no objection in taking evidence
in his absence. This precaution is necessary
for the further progress of the proceeding
including examination of the witnesses."
7. I am of the view that, in the light of the
aforesaid observations, while relegating the
petitioner to the learned Magistrate for filing an
application under Section 258 Cr.PC, the exemption
of the petitioner from personal appearance before
the learned Magistrate can be allowed.
In such circumstances, this Crl.M.C. is
disposed of granting liberty to the petitioner to
submit an application before the learned Magistrate
under Section 258 Cr.PC for stopping the
proceedings in the above case as against the
petitioner. It is made clear that, it shall be open
for the petitioner to submit such an application
through her counsel without appearing in person.
Upon such an application being submitted before the
learned Magistrate through her counsel, the same
shall be taken up and appropriate orders thereon
shall be passed by the learned Magistrate, in
accordance with law as expeditiously as possible.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
pkk
APPENDIX OF CRL.MC 5196/2019
PETITIONER'S ANNEXURES:
ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO.523
OF 2018 OF THE KASABA POLICE STATION,
KOZHIKODE.
ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME
NO.523 OF 2018 OF THE KASABA POLICE
STATION, KOZHIKODE.
ANNEXURE A3 MEDICAL CERTIFICATE DATED 27.03.2019 ISSUED
TO THE PETITIONER FROM KARUNNYA HOSPITAL.
//TRUE COPY//
SD/- PS TO JUDGE
