Haridasan vs State Of Kerala
2024 Latest Caselaw 30129 Ker

Kerala High Court

Haridasan vs State Of Kerala on 24 October, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                     2024:KER:79396

CRL.MC NO. 6010 OF 2019

                                   1

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946

                        CRL.MC NO. 6010 OF 2019

        AGAINST   THE    ORDER/JUDGMENT   DATED   31.01.2016   IN   CC

NO.626 OF 2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,

OTTAPPALAM

PETITIONER/S:

    1      HARIDASAN,
           AGED 81 YEARS
           S/O. CHOZHY, THIRUNARAYANAPURAM, OTTAPALAM TALUK,
           PALAKKAD DISTRICT, PIN-679 513

    2      PREETHA,
           AGED 37 YEARS
           W/O. SUDHEESH, PANAMEL HOUSE, THIRUVAZHIYODU,
           VELLINEZHI, SRIKRISHNAPURAM, CHERPULASSERI,
           PALAKKAD DISTRICT, PIN-679 513

    3      KAMALAM,
           AGED 74 YEARS
           W/O. HARIDASAN, THIRUVANANTHAPURAM, OTTAPALAM
           TALUK, PALAKKAD DISTRICT, PIN-679 513


           BY ADVS.
           K.N.ABHILASH
           SUNIL NAIR PALAKKAT
                                                     2024:KER:79396

CRL.MC NO. 6010 OF 2019

                                 2


RESPONDENT/S:

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

     2    THE STATION HOUSE OFFICER,
          SREEKRISHNAPURAM NORTH POLICE STATION, PALAKKAD,
          PIN-679 513

     3    ANIMA,
          DEPUTY TAHASILDAR, REVENUE RECOVERY, OTTAPALAM
          TALUK, PALAKKAD DISTRICT, PIN-679 101

     4    DOTTIMOL ISSAC,
          VILLAGE OFFICER, VELLINEZHI, OTTAPALAM TALUK,
          PALAKKAD, PIN-679 101



OTHER PRESENT:

          SRI.SANGEETHARAJ.N.R, PP


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   24.10.2024,   THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
                                                    2024:KER:79396

CRL.MC NO. 6010 OF 2019

                                 3



                    P.V.KUNHIKRISHNAN, J.
                  --------------------------------
                   Crl.M.C. No.6010 of 2019
           ----------------------------------------------
           Dated this the 24th day of October, 2024


                             ORDER

Petitioners are accused Nos.2 to 4 in CC No. 626/2016

on the file of the Judicial First Class Magistrate Court,

Ottappalam. The above case is charge-sheeted against the

petitioners alleging offences punishable under Sections 341,

353 and 354 read with Section 34 IPC.

2. The prosecution allegation is that, on 01.10.2015

while the defacto complainant along with other witnesses

came to the property of the 1st petitioner for revenue

recovery proceedings, he thwarted them and with an

intention to outrage the modesty of Defacto complainant

and CW2, wrongfully restrained them and thereby

committed the offences. Annexure-A1 is the final report.

The Defacto complainant is the Deputy Thahsildar of 2024:KER:79396

CRL.MC NO. 6010 OF 2019

Ottapalam Taluk. The petitioners' son and his wife are the

other accused in the said case. According to the

petitioners, even if the entire allegations are accepted, no

offence is made out against the petitioners. Hence this

criminal miscellaneous case.

3. Heard the learned counsel for the petitioners and

the learned Public Prosecutor.

4. It is submitted that the petitioners' son was

conducting Toddy shops group No.10 of the Cherpulasseri

Excise Range in Palakkad Division for so many years. The

Welfare Fund Inspector of Kerala Toddy Workers Welfare

Fund Board had passed the final determination orders

under the provisions of the Kerala Toddy Workers Welfare

Fund Act fixing contribution towards the welfare fund

payable by the petitioners' son for the workers employed by

him in this Toddy shop from 2008 to 2012-13. It is

submitted that the petitioners' son remitted a total amount 2024:KER:79396

CRL.MC NO. 6010 OF 2019

of Rs. 32,39,421/- during 2014-2015 towards the clearance

of Toddy Workers Welfare Fund. It is the case of the

petitioners that the remaining liability then was

Rs.3,22,400/- which was permitted to remit in 10 monthly

installments by this Court as per Annexure-A2 judgment.

Annexure-A2 judgment was on 03.09.2015. It is submitted

that violating the Annexure-A2 judgment of this Court, on

01.10.2015, the defacto complainant and other officials

trespassed into the property of the 1 st petitioner and

attached all the household articles, which are owned by the

1st petitioner exclusively. It is the case of the petitioners

that the 3rd respondent has no authority to enter into the

property of the petitioner's since the defaulter is the

petitioner's son. The defacto complainant refused to verify

the title deed No.1075/1984 dated 30.03.1984 of SRO

Cherppulassery produced by the 1st petitioner is the further

submission. According to the petitioners, the revenue 2024:KER:79396

CRL.MC NO. 6010 OF 2019

recovery proceedings should have been conducted after

verification of the title of the property. It is also submitted

that before this incident, the petitioners' son approached

the Deputy Thahasildar, Ottappalam Taluk, the defacto

complainant herein, on 30.09.2015 for remitting the

amount; but it was refused to accept stating that the

petitioners' son has to deposit the entire collection charges

and interest at first and otherwise they would not accept

the installments. Since the defacto complainant had not

accepted the amount as it was directed by this Court as per

Annexure-A2 judgment, the petitioners' son filed Annexure-

A3 contempt case on 01.10.2015. It is submitted that the

contempt case was accepted on file on 01.10.2015 and the

case was posted for the explanation of the respondents in

the contempt case, who is the defacto complainant. It is

further submitted that the 1st petitioner is not a defaulter

and not in any way connected with the business of his son 2024:KER:79396

CRL.MC NO. 6010 OF 2019

who is a defaulter in revenue recovery proceedings. Hence

the action of the defacto complainant amount to trespass

and violation of the fundamental rights of the petitioners is

the submission. Hence the 1st petitioner filed a writ petition

before this Court seeking a stay of further proceedings

against the 1st petitioner and to return back the entire

articles taken away by the defacto complainant. This Court

passed Annexure-A4 interim order on 06.10.2015.

Subsequently, on 02.12.2015 this Court allowed the writ

petition and directed the revenue authorities to give back

the articles to the 1st petitioner, as evident by Annexure-A5

judgment. It is the definite case of the petitioners that the

defacto complainant received the notice by special

messenger, and Annexure-A4 interim order was passed on

08.10.2015, and immediately she lodged a complaint in the

police station against the petitioners and others alleging

that the petitioners interfered with their official duty.

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CRL.MC NO. 6010 OF 2019

Annexure-A6 is the FIR. Meanwhile, the other revenue

recovery proceedings against the 1st petitioner's son were

also stayed by this Court in W.P.(C) No.30429/2015, is the

submission. According to the petitioners, Annexure-A6 FIR

was registered on 08.10.2015 for the alleged incident

happened on 01.10.2015. It is a fact that Annexure-A3

Contempt Case was filed on 01.10.2015 and Annexure-A4

interim order was passed on 06.10.2015. That itself shows

that Annexure-A6 complaint filed by the defacto

complainant against the petitioners is an afterthought.

5. Moreover, this Court perused the final report in

this case. It will be better to extract the same:

"Charge u/s 341, 353, 354 r/w 34 IPC of Cr:763/15 in S.K.Puram P.S.

01/10/15 തതീയതതി ഉച്ചയയ്ക്ക് 12.00 മണതികയ്ക്ക് സർകക്കാർ ജതീവനകക്കാരക്കായ 1

മുതൽ 4 കൂടതിയ സക്കാകതികൾ ജപതി നടപടതികൾ നടത്തുന്നതതിനക്കായതി

2-)o പ്രതതിയുടട ഉടമസ്ഥതയതിലുള്ള തതിരുവക്കാഴതിയയക്കാടയ്ക്ക് ടവള്ളതിയനഴതി

ഗക്കാമപഞക്കായതയ്ക്ക് വക VIII/19 നമ്പർ വതീടതിൽ ടചെന്നയ്ക്ക് റതികവറതി

നടപടതികൾ തുടങതിയ സമയയം 1 മുതൽ 4 കൂടതിയ പ്രതതികൾ യമൽ

വതീടതിനകതയ്ക്ക് ടവച്ചയ്ക്ക് സക്കാകതികടളെ തടഞയ്ക്ക് നതിർത്തുകയുയം, സർകക്കാർ 2024:KER:79396

CRL.MC NO. 6010 OF 2019

ഉയദദക്കാഗസ്ഥരക്കായ സക്കാകതികളുടട ഔയദദക്കാഗതിക കർതവദടത

ബലമക്കായതി തടസ്സടപ്പെടുത്തുകയുയം 2-)o പ്രതതി 2-)o സക്കാകതിടയ സതീയുടട

മരദക്കാദയയ്ക്ക് ലയംഘനയം വരുതണടമന്നുള്ള ഉയദ്ദേശയതക്കാടുകൂടതി

യഷക്കാൾഡറതിൽ പതിടതിച്ചയ്ക്ക് തള്ളതി ബലപ്രയയക്കാഗയം നടത്തുകയുയം ടചെയ്തതതിൽ

2-)o സക്കാകതികയ്ക്ക് മക്കാനഹക്കാനതി സയംഭവതിച്ചതിരതിക്കുകയക്കാലുയം 1 മുതൽ 4

കൂടതിയ പ്രതതികൾ ഇനദൻ ശതികക്കാനതിയമയം 341, 353, 354 r/w 34

വകുപ്പുകൾ പ്രകക്കാരയം ശതികക്കാർഹമക്കായ കുറയം ടചെയ്തതിരതിക്കുന്നു."

6. The first offence alleged is under Section 354 IPC.

Whether the offence under Section 354 IPC is attracted in

the facts and circumstances of this case is the question to

be decided in this case. This Court in Vasudevan v. State

of Kerala [2006 KHC 656] considered the ingredients of

Section 354 IPC in detail. It will be better to extract the

relevant portion of the above judgment:

"2. xxxxxxxx A reading of the statement of the prosecutrix in chief examination and cross examination would clearly manifest only a case of causing simple hurt to Saraswathy, P.W.1. Not a single word has been spoken by Saraswathy that Vasudevan had outraged her 2024:KER:79396

CRL.MC NO. 6010 OF 2019

modesty. S.354 of I.P.C. reads as follows:

"Sec. 354: Assault or criminal force to woman with intent to outrage her modesty.- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

Even though, it is true that assault or criminal force to woman is one of the essential pre conditions for applicability of S.354 I.P.C., but the same has to be with an intend to outrage her modesty or knowing it to be likely that he will thereby outrage her modesty. The second element or ingredient of the offence i.e., intending to outrage or knowing it to be likely that he will thereby outrage her modesty, is completely missing in this case. A case of pure and simple hurt has been converted into an offence under S.354 I.P.C., which is wholly impermissible and illegal. xxxxxxxx [underline supplied]"

7. In the light of the above principle, this Court

perused the final report. It can not be said that the alleged

assault or criminal force is with intend to outrage the

modesty or knowing it to be likely that the same will 2024:KER:79396

CRL.MC NO. 6010 OF 2019

outrage the modesty of the defacto complainant. Therefore

the offence under Section 354 IPC is not attracted.

8. The other offence alleged is under Section 341

IPC. Section 341 IPC is the penal provision for wrongful

restraint. Section 339 defines wrongful restraint which is

extracted hereunder:

"339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person."

9. To constitute wrongful restraint, the accused

should voluntarily obstructs any person so as to prevent

that person from proceeding in any direction in which that

person has a right to proceed. This Court perused

Annexure-A2 judgment by which an instalment facility was

granted for paying the amount due. It is also the case of

the petitioners that the son of the 1 st petitioner filed a

contempt case as evident by Annexure-A3 stating that the 2024:KER:79396

CRL.MC NO. 6010 OF 2019

authorities are not accepting the instalment amount. In

addition to all these, the property in which the revenue

authorities entered does not belong to the defaulter. In

such circumstances, the offence under Section 341 IPC is

also not made out.

10. What remains is Section 353 IPC. Section 353

IPC says about the assault or criminal force that deters

public servants from discharging their official duty.

Admittedly, the property in which the revenue authorities

entered belongs to the 1st petitioner who is not a defaulter.

In such circumstances, I am of the considered opinion that,

it can not be said that the defacto complainants were

discharging their official duty. Hence the offence under

Section 353 IPC is also not made out.

The upshot of the above discussion is that the

prosecution against the petitioners is to be quashed.

Therefore, this Criminal Miscellaneous Case is allowed.

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All further proceedings against the petitioners in C.C.

No.626/2016 on the file of the Judicial First Class

Magistrate Court, Ottappalam arising from Crime

No.763/2015 of Sreekrishnapuram Police Station, Palakkad

are quashed.

Sd/-

P.V.KUNHIKRISHNAN JV/DM JUDGE 2024:KER:79396

CRL.MC NO. 6010 OF 2019

PETITIONER ANNEXURES

ANNEXURE A1 THE CERTIFIED COPY OF THE FINAL REPORT DATED 31.01.2016 IN CC NO. 626/2016 OF JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM, PALAKKAD DISTRICT.

ANNEXURE A2 THE TRUE COPY OF THE JUDGMENT DATED 03.09.2015 IN WPC NO. 11380/2015 OF THE HON'BLE HIGH COURT OF KERALA.

ANNEXURE A3 THE TRUE COPY OF THE PETITION IN CCC NO. 1458/2015 DATED 01.10.2015 OF THE HON'BLE HIGH COURT OF KERALA FILED BY PETITIONERS' SON MR. SUDHEESH WITHOUT EXHIBITS.

ANNEXURE A4 THE TRUE COPY OF THE INTERIM ORDER DATED 06.10.2015 IN WPC NO. 30296/15 OF THE HON'BLE HIGH COURT OF KERALA.

ANNEXURE A5 THE TRUE COPY OF THE JUDGMENT DATED 02.12.2015 IN WPC NO. 30296/2015 OF THE HON'BLE HIGH COURT OF KERALA.

ANNEXURE A6 THE TRUE COPY OF THE FIR DATED 08.10.2015 IN CRIME NO. 763/2015 OF THE SREEKRISHNAPURAM POLICE STATION, ALONG WITH COMPLAINT.