Kerala High Court
K.Sivadhasan Nair vs Jameela Prakasham on 13 September, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
CRL.MC NO. 370 OF 2016
AGAINST THE ORDER/JUDGMENT DATED 19.09.2015 IN
CMP NO.1862 OF 2015 OF JUDICIAL MAGISTRATE OF FIRST
CLASS - III, THIRUVANANTHAPURAM
PETITIONER/1ST ACCUSED:
M.A.VAHEED
M.L.A., JINSALAYAM, KUNNUKUZHY, VANCHIYOOR
P.O., THIRUVANANTHAPURAM.
BY ADV. SRI.GEORGE POONTHOTTAM
RESPONDENTS/COMPLAINANT AND STATE:
1 K.K.LATHIKA
M.L.A., POOKKOTTU VEEDU, VATTOLI P.O.
KAKKATTIL, KOZHIKODE-673510.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM.
BY ADVS.
SRI.G.BIJU
SRI.M.RAJAGOPALAN NAIR(K/282/1973)
SRI.SANGEETHARAJ N.R., PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 09.09.2024, ALONG WITH CRL.MC.2111/2016,
3178/2016, THE COURT ON 13.09.2024 PASSED THE
FOLLOWING:
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2
2024:KER:69787
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
CRL.MC NO. 2111 OF 2016
AGAINST THE ORDER/JUDGMENT DATED 19.09.2015 IN
CMP NO.1557 OF 2015 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -III, THIRUVANANTHAPURAM
PETITIONER/ACCUSED NO.2:
DOMINIC PRESENTATION, M.L.A.,
VALIYATHAYIL, SUNORO CHURCH ROAD,
ERNAKULAM.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
RESPONDENTS/COMPLAINANT & STATE:
1 JAMEELA PRAKASHAM, W/O.NEELALOHITHADASAN
NADAR,'MANASI', T.C.8/164, THIRUMALA P.O.,
THIRUVANANTHAPURAM - 695 001.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM-682 031.
BY ADVS.
SRI.ALAN PAPALI
SRI.ANTONY ROBERT DIAS
SRI.GILBERT GEORGE CORREYA
SRI.J.VIMAL
SRI.A.VELAPPAN NAIR
SRI.RENJITH T.R., SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 09.09.2024, ALONG WITH CRL.MC.370/2016,
3178/2016, THE COURT ON 13.09.2024 PASSED THE
FOLLOWING:
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
3
2024:KER:69787
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
CRL.MC NO. 3178 OF 2016
CRIME NO.236/2015 OF MUSEUM POLICE STATION,
THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT DATED 19.09.2015 IN
CMP NO.1557 OF 2015 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -III, THIRUVANANTHAPURAM
PETITIONER/1ST ACCUSED:
K.SIVADHASAN NAIR,
EX-MLA, S/O.KESAVA PILLAI,
AGED 67 YEARS, SHIVA MADOM,
ARANMULA P.O., PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.ARUN.B.VARGHESE
RESPONDENTS/COMPLAINANT & STATE:
1 JAMEELA PRAKASHAM,
EX-MLA,
AGED 59 YEARS,
W/O.NEELALOHITHADASAN NADAR,
MANSAI, T.C 8/164,
THIRUMALA P.O.,
THIRUVANANTHAPURAM - 695 001.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH
COURT OF KERALA, ERNAKULAM, PIN-682 031.
BY ADVS.
SRI.ALAN PAPALI
SRI.ANTONY ROBERT DIAS
SRI.GILBERT GEORGE CORREYA
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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2024:KER:69787
SRI.J.VIMAL
SRI.A.VELAPPAN NAIR
SRI.SANGEETHARAJ N.R., PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 09.09.2024, ALONG WITH CRL.MC.370/2016,
2111/2016, THE COURT ON 13.09.2024 PASSED THE
FOLLOWING:
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
5
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"CR"
P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
----------------------------------------------
Dated this the 13th day of September, 2024
ORDER
These three Criminal Miscellaneous Cases are
connected and therefore I am disposing of these
cases by a common order.
2. Petitioners and 1st respondents in these
cases were Members of the Kerala Legislative
Assembly. Petitioners in Crl.M.C. Nos.3178/2016
and 2111/2016 are the accused in C.C.
No.1389/2015 on the file of the Judicial First Class
Magistrate Court - III, Thiruvananthapuram. The 1 st
respondent in these cases is the complainant in the
above cases. Petitioner in Crl.M.C. No. 370/2016 is
the 1st accused in C.C. No.1390/2015 on the file of
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
the Judicial First Class Magistrate Court - III,
Thiruvananthapuram. The 1st respondent in the
above case is the complainant in that case. The
alleged incident in these cases happened on
13.03.2015 in the Kerala Legislative Assembly.
3. I will narrate the facts in Crl.M.C.
Nos.3178/2016 and 2111/2016 which are filed to
quash the proceedings in C.C. No. 1389/2015 on the
file of the Judicial First Class Magistrate Court - III,
Thiruvananthapuram. Petitioners are the accused in
the above case. They were the members of the
Kerala Legislative Assembly. The gist of the
allegation in the complaint filed against the
petitioners by the 1st respondent in these cases which
is produced as Annexure A in these Criminal
Miscellaneous Cases are as follows: The 1 st
respondent was an MLA representing Kovalam
constituency and she is the wife of Dr. A.
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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Neelalohithadasan Nadar. Her husband was elected
as MLA from Kovalam on several occasions earlier
and he was a Minister and also a former Member of
Parliament. There was a political agitation under the
leadership of the Left Democratic Front (LDF)
demanding the resignation of the Finance Minister,
Sri.K.M. Mani and they had demanded that Sri.K.M.
Mani should not present the State Budget 2015-16.
The State budget was scheduled to be presented in
the Assembly at 9.00 AM on 13.03.2015. As directed
by the LDF, in order to obstruct Sri.K.M. Mani from
the presenting of Budget, the 1st respondent and
fellow members of the Assembly were raising protest
slogans in the Assembly. At about 8.45 a.m., the 1 st
respondent and five other women MLAs stood facing
the door through which Ministers usually enter the
house, raising slogans. At that time, the 1 st
respondent saw Sri.K.Sivadasan Nair, MLA (who is
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
the petitioner in Crl.M.C. No.3178/2016) and some
other ruling party MLAs sitting in the back row of the
Assembly. The 1st respondent alleges that, after a
few minutes, Sri.K.Sivadasan Nair MLA approached
her from behind, grabbed her waist with his right
hand and exerted force. It is alleged that he pressed
on her back with his knee and held her close to his
body by applying force. The 1st respondent further
claims that she escaped from Sri. Sivadasan Nair by
using force. The 1st respondent further alleges that
the petitioner in Crl.M.C. No.2111/2016 who was
standing nearby called her "പപപോടടീ" and yelled at her
that "നടീ നനിനന്റെ നപോടപോനനപപപോയനി വനിളനിച്ചുനകപോണ്ടുവപോടടീ".
According to the 1st respondent, the above alleged
act of the 1st accused was with the intention to
outrage her modesty and it is claimed that the 2 nd
accused aided the 1st accused in committing the
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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alleged offence, by saying the words mentioned
above and the same had caused her a feeling of
disgust. The 1st respondent claims that the 1st and
2nd accused acted in unison in furtherance of their
common intention. The 1st respondent claims that the
Legislative Assembly is a public place, and as a
Member of that Assembly, she has freedom of
movement inside the House, and this was obstructed
by the 1st accused. The 1st respondent also submitted
a written complaint before the Speaker of the
Assembly immediately after the incident and
thereafter a detailed complaint was again made on
19.03.2015. However, no action was taken is the
submission. The 1st respondent also approached the
Director General of Police with a complaint on
23.03.2015. But no case was registered. Hence
Annexure A complaint was filed.
4. According to the 1st respondent, the
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incident mentioned in the complaint was watched
several people who were inside the House at that
time and by numerous persons through a live
telecast of the proceedings. Hence it is alleged that
the accused committed the offence under Sections
341, 294, 354, 354 A and 509 r/w 34 IPC.
5. The petitioner in Crl.M.C. No. 370/2016
was also a Member of the Legislative Assembly. He
challenged the proceedings in C.C. No. 1390/2015 on
the file of the Judicial First Class Magistrate Court -
III, Thiruvananthapuram which is a private complaint
filed by the 1st respondent who was also a member of
the Legislative Assembly. Annexure-1 is the
complaint filed by the 1st respondent in the above
case. The brief allegation in Annexure-1 complaint is
that on 13.03.2015, the petitioner herein and
another Member of Legislative Assembly obstructed
the 1st respondent's way inside the Legislative
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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Assembly, and the petitioner touched her body at
different places and pushed her down. At that time,
the 2nd accused in the case assaulted her using his
hand. Because of this, the 1st respondent collapsed.
It is alleged that the above acts constitute the
offences under Sections 341, 354, 509 r/w 34 IPC.
Hence it is alleged that the petitioner who is the 1 st
accused in the above case committed the above said
offences.
6. When the above two private complaints
were filed before the learned Magistrate, the learned
Magistrate after conducting the preliminary enquiry,
took cognizance for the offences under Sections 341,
354 r/w 34 IPC. Annexure-E produced in Crl.M.C.
Nos.3178/2016 and 2111/2016 is the order taking
cognizance in C.C. No. 1389/2015 by the Judicial
First Class Magistrate Court - III,
Thiruvananthapuram. Annexure-3 produced in
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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Crl.M.C. No. 370/2016 is the order taking cognizance
in C.C. No. 1390/2015 by the Judicial First Class
Magistrate Court - III, Thiruvananthapuram.
According to the petitioners, even if the entire
allegations are accepted in the complaint, no offence
is made out and the order taking cognizance is
illegal. Hence these Criminal Miscellaneous Cases
are filed.
7. Heard Adv. S.Sreekumar, the learned Senior
counsel assisted by Adv. Arun B. Varghese and Joseph
P. Alex for the petitioners in Crl.M.C. Nos.3178/2016
and 2111/2016, Adv. Gilbert George Correya, the
learned counsel appearing for the 1st
respondent/complainant in Crl.M.C. Nos.3178/2016
and 2111/2016, Adv. George Poonthottam, the learned
Senior counsel assisted by his retaining counsel for the
petitioner in Crl.M.C. No.370/2016, Adv.M. Rajagopalan
Nair, the learned counsel appearing for the 1st
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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respondent/complainant in Crl.M.C. No. 370/2016
and the learned Public Prosecutor.
8. The learned Senior counsel Adv. S.
Sreekumar submitted that, even if the entire
allegations are accepted, no offence under Sections
341, 354 r/w 34 IPC is made out. The Senior
counsel submitted that, in the complaint it is
admitted that the complainant and others were going
to obstruct the Minister who is constitutionally bound
to present the Budget. The Senior counsel submitted
that the intention of the 1st respondent/complainant
was to obstruct the same. Therefore the offence
under Sections 341 and 354 IPC are not attracted.
The Senior counsel also relied on the judgments of
Prasanth v. State of Kerala [2020 (2) KHC 78],
Vijayan v. State of Kerala [2020 KHC 803],
Sasidharan v. State of Kerala [2005 KHC 981],
Kapil Ray v. State of M.P. [2024 KHC 2968] and
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
Ratiram v. State of M.P. [2018 KHC 3140]. The
learned Senior counsel, Adv. George Poonthottam
also submitted that, no offence is made out, even if
the entire allegations in Annexure-1 r/w Annexure-2
sworn statement are accepted in toto. The learned
Senior counsel submitted that the ingredients of
Sections 341 and 354 IPC are not made out in the
complaint.
9. Adv. Gilbert George Correya who appeared
for the 1st respondent in Crl.M.C. Nos.3178/2016 and
2111/2016 filed a compilation of judgments relied on
by him. I will consider those judgments separately.
The counsel takes me through the ingredients of
Sections 354 and 341 IPC and submitted that this is
a clear case in which the offences are made out.
Adv. Gilbert George Correya submitted that the
learned Magistrate had only taken cognizance of the
offence and it is at the preliminary stage. The
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
counsel submitted that the duty of the Magistrate at
the time of taking cognizance is only to find out
whether prima facie the offences are made out. The
learned Magistrate passed a detailed order while
taking cognizance. The counsel also submitted that
the witnesses were examined at the pre-cognizance
stage. Those evidences were not produced before
this Court. Therefore, it is submitted that these
Criminal Miscellaneous Cases are to be dismissed.
The counsel submitted that the contentions are all
matters of evidence. Adv. Rajagopalan Nair who
appeared for the 1st respondent in Crl.M.C. No.
370/2016 submitted that the accused has no right to
obstruct the complainant. The counsel takes me
through the complaint and the sworn statement and
submitted that the offences are made out.
10. This Court considered the contentions of
the petitioners and the party respondents.
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
Admittedly the alleged incident happened in the
Kerala Legislative Assembly on 13.03.2015. The
Apex Court in State of Kerala v. K Ajith and
Others [AIR 2021 SC 3954] considered the
application of Article 194 of the Constitution of India
in connection with another incident that happened in
the Kerala Legislative Assembly on the same date.
The Apex Court, while interpreting Article 194 of the
Constitution, observed that acts of vandalism cannot
be said to be manifestations of the freedom of speech
and be termed as "proceedings" of the Assembly. The
Apex Court also observed that it was not the
intention of the drafters of the Constitution to extend
the interpretation of 'freedom of speech' to include
criminal acts by placing them under a veil of protest.
Hence, it is observed that the Constitution only
grants the members the freedom of speech that is
necessary for their active participation in meaningful
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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deliberation without any fear of prosecution.
11. In the light of the above principle, this
Court has to find out whether any criminal acts are
done by the petitioners in these cases. If it is found
that there is any criminal activity from the side of the
petitioners, the petitioners are not entitled to the
protection under Article 194 of the Constitution. To
find out whether any criminal activity is there from
the side of the petitioners as per the complaints filed
against them, this Court has to consider the offences
for which the learned Magistrate had taken
cognizance and the ingredients to attract those
offences.
12. Admittedly the learned Magistrate had
taken cognizance for the offences under Sections 341
and 354 r/w Section 34 IPC in C.C.No.1389/2015 and
C.C. No.1390/2015. Therefore, this Court has to
consider whether the alleged acts amount to the
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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offences under Sections 341 and 354 IPC.
13. First, I will consider Section 341 IPC.
Section 341 IPC says that whoever wrongfully
restrains any person shall be punished with simple
imprisonment for a term which may extend to one
month, or with fine which may extend to five
hundred rupees, or with both. Wrongful restraint is
defined in Section 339 IPC. Section 339 IPC 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."
14. In order to attract Section 341 IPC, the
following ingredients of Section 339 IPC are
necessary:
i) The accused obstructed any person.
ii) The obstruction is so as to prevent that person
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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from proceeding in any direction in which that
person has a right to proceed.
If these two ingredients exist, there is wrongful
restraint, which is punishable under Section 341 IPC.
Therefore, mere obstruction of any person alone will
not attract wrongful restraint. The obstruction should
be to prevent that person from proceeding in any
direction in which that person has a right to proceed.
15. In the light of the above definition, the
averments in the complaint in C.C.No.1389/2015,
which is produced as Annexure-A in Crl.M.C.
Nos.3178/2016 and 2111/2016 and the averments in
the complaint in C.C.No.1390/2015, which is
produced as Anneuxure-1 in Crl.M.C. No.370/2016,
are to be considered.
16. The averments in Annexure-A complaint in
C.C.No.1390/2015 can be considered first. The
admitted case of the complainant is that there was a
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
political agitation under the leadership of LDF
demanding the resignation of the Finance Minister
Sri.K.M. Mani and they had demanded that Sri.K.M.
Mani should not present the State Budget 2015-
2016. The State Budget was scheduled to be
presented in the Assembly at 9 am on 13.03.2015.
It is the definite case of the complainant that as
directed by LDF, in order to obstruct Sri.K.M.Mani
from the presenting of Budget, the complainant and
fellow members of the Assembly were raising protest
slogans in the Assembly. It is the definite case of the
complainant that at 8.45 am, the complainant and
five other women MLAs stood facing the door through
which the Ministers usually enter the house raising
slogans. At that time, the accused wrongfully
restrained the complainant is the admitted case.
Whether the same amounts to an obstruction
voluntarily caused by the accused so as to prevent
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that person from proceeding in any direction in which
that person has a right to proceed? Whether the 1 st
respondent MLA has a right to proceed and obstruct a
Minister from presenting a Budget in the Legislative
Assembly? I am of the considered opinion that there
can be protest in a democratic manner even in the
assembly against the presentation of budget by the
Finance minister. But there cannot be any obstruction
from the side of the 1 st respondent in presenting a
Budget in a State Assembly by a Finance Minister.
That is a constitutional duty of the Finance Minister.
There is no law to the effect that, a finance minister
against whom a case is registered under the
Prevention of Corruption Act cannot present a budget
in the Legislative assembly. But the minister can
decide himself whether his conscience permits for the
same. This is a country where Lal Bahadur Shastri,
the then railway minister in 1956 resigned from the
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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post of railway minister for a railway accident taking
moral responsibility of the same. Those days are only
history. Moral responsibility is a concept based on
ethics, integrity and personal values rather than a
legal requirement. But if the Finance Minister decided
to present the budget, even if he is an accused in a
corruption case, nobody can restraint him, but of
course there can be protest in a democratic manner.
But here the admitted case in the complaint is that
there is a decision to obstruct the finance minister in
presenting the budget. As I mentioned earlier
presenting budget in assembly is a constitutional
duty of the finance minister. None has a right to
obstruct him. Therefore, I am of the considered
opinion that even if the petitioners obstruct the
complainant from proceeding in the direction in which
the Minister is coming to present the Budget, the
complainant has no right to proceed in that way,
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because the Finance Minister is doing his
constitutional duty. In the complaint, it is specifically
stated that there was a decision to obstruct the
Minister from presenting the Budget. The relevant
portion of the complaint is extracted hereunder:
"3. ഈ സപോഹചരര്യതനിൽ പകരളതനിനല
പ്രതനിപക്ഷ രപോഷടീയ കക്ഷനികൾ ഇടതുപക്ഷ
ജനപോധനിപതര്യ മുന്നണനിയുനട പനതൃതത്വതനിൽ ശടീ.
നക.എഎ. മപോണനി രപോജനിവയ്ക്കണനമന്നപോവശര്യനപടട
പ്രതനിപഷേധ പ്രപക്ഷപോഭങ്ങൾ നടതനി
വരനികയപോയനിരുന. ശടീ. നക.എഎ. മപോണനി 2015-
2016-നല സഎസപോന ബഡടജറട
അവതരനിപനിനക്കെരു നതന്നപോയനിരുന ഒരു പ്രധപോന
ആവശര്യഎ.
4. പകരള നനിയമസഭയനിൽ 13.03.2015-നട
രപോവനിനല 9.00 മണനിക്കെട ബഡടജറട
അവതരനിപനിക്കെപോൻ നനിശ്ചയനിചനിരുന. എന്നപോൽ
ശടീ. നക.എഎ. മപോണനി പ്രസ്തുത ബഡടജറട
അവതരനിപനിക്കുന്നതട തടയപോൻ ഇടതുപക്ഷ
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
ജനപോധനിപതര്യ മുന്നണനി നനിർപദേശനിചതനിനനതുടർന്നട
അപന്ന ദേനിവസഎ രപോവനിനല ഞപോൻ ഉൾനപനട ഉള
അഎഗങ്ങൾ സഭയനിൽ പ്രതനിപഷേധ മുദപോവപോകര്യഎ
വനിളനിചനിരുന.
5. രപോവനിനല 08.45 മണനിപയപോനട ഞപോനഎ
എനന്റെ സഹ വനനിതപോ എഎ.എൽ.എ.മപോരപോയ
നക.നക. ലതനിക, നക. എസട. സലടീഖ,
ഇ.എസട. ബനിജനിപമപോൾ, ഐഷേ പപപോറനി, ഗടീതപോ
പഗപോപനി എന്നനിവരുഎ പചർന്നട ധനകപോരര്യ മനനിയുഎ
മറഎ സപോധപോരണ സഭയനിപലക്കെട കടനവരുന്ന
വപോതനിലനിനട അഭനിമുഖമപോയനി നനിന്നട മുദപോവപോകര്യഎ
വനിളനിക്കുകയപോയനിരുന. ആ സമയഎ ശടീ. നക.
ശനിവദേപോസൻ നപോയർ എഎ.എൽ.എ.യുഎ മറട ചനില
ഭരണകക്ഷനി എഎ.എൽ.എ.മപോരുഎ സഭയുനട
പനിൻസടീറകളനിൽ ഇരനിക്കുന്നതട കണ്ടു."(underline
supplied)
17. From the above it is clear that the
complainant and other MLAs were trying to obstruct
the Minister from presenting the Budget in the
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
Legislative Assembly. The Members of Legislative
Assembly have no right to obstruct the Finance
Minister in presenting a budget except to
demonstrate a peaceful protest against the same, if
they are aggrieved. In such circumstances, I am of
the considered opinion that Section 341 IPC is not
attracted in the facts and circumstances of the case.
18. The Senior Counsel Sri.S. Sreekumar relied
on the judgment of this Court in Prasanth's case
(supra). This Court considered the ingredients of the
offence under Section 341 IPC in that case. In
Madhanagopal N.S. v. K. Lalitha [2022 KHC 7202]
the apex court considered the ingredients of the
Section 341 IPC. It will be better to extract the
relevant portion of that judgment:
"10. S.341 of the IPC talks about punishment
for wrongful restraint. S.341 reads thus: "341.
Punishment for wrongful restraint - Whoever
wrongfully restrains any person shall be punished
with simple imprisonment for a term which may
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
extend to one month, or with fine which may extent
to five hundred rupees or with both."
11. The complaint also fails to disclose the
necessary ingredients to constitute the offence of
wrongful restraint. In order to attract application of
S.341 which provides for punishment for wrongful
restraint, it has to be proved that there was
obstruction by the accused; (ii) such obstruction
prevented a person from proceeding in a direction to
which he had a right to proceed; and (iii) the
accused caused such obstruction voluntarily. The
obstructor must intend or know or would have
reason to believe that the means adopted would
cause obstruction to the complainant.
12. The averments made in the complaint
according to us are not sufficient to even constitute
the offence of wrongful restraint. In the overall view
of the case, we are convinced that no case is made
out against the appellants herein as alleged by the
complainant.
13. Taking cognizance of an offence under
S.190(1) of the Cr.P.C. and issue of process under
S.204 are judicial functions and require a judicious
approach. This is a proposition not only based on
sound logic but is also based on fundamental
principles of justice, as a person against whom no
offence is disclosed cannot be put to any
harassment by the issue of process. Issuance of
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
process must be preceded by an application of
judicial mind to the material before the court to
determine if there is ground for proceedings against
the accused. When the allegations made in the
complaint are found to be too vague and general
without giving any material particulars of the
offence alleged against the accused then the order
of the Magistrate issuing process on the basis of the
complaint would not be justified as there must be
material prima facie, for issuance of process. We
have our own doubts whether even the verification
of the original complainant on oath was recorded
before taking cognizance and issuing process."
19. In the light of the above principle, I am of
the considered opinion that even if the entire
allegations in Annexure-A complaint produced in
Crl.M.C. Nos.3178/2016 and 2111/2016 are accepted
in toto, no offence under Section 341 IPC is made
out.
20. Same is the allegation in Annexure-1
complaint produced in Crl.M.C. No.370/2016. There
also the complainant was proceeding to obstruct the
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
Minister from presenting the Budget. It is stated that
it was the decision of the LDF to obstruct the Minister
from presenting the Budget and therefore, the LDF
MLAs were staying in the Assembly from 12.03.2015
onwards to obstruct the Minister. As I discussed
earlier, I am of the considered opinion that the same
would not attract the offence under Section 341 IPC
and therefore, the offence under Section 341 IPC is
not made out in Annexure-1 complaint in
C.C.No.1390/2015 on the file of the Judicial First
Class Magistrate Court-III, Thiruvananthapuram.
21. The other offence alleged is under Section
354 IPC. Section 354 IPC is extracted hereunder:
"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 there by outrage her
modesty, shall be punished with
imprisonment of either description for a term
which shall not be less than one year but
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
which may extend to five years, and shall also
be liable to fine."
22. To attract the offence under Section 354
IPC, the following ingredients are necessary:
i) The accused assaults or uses criminal
force to any woman.
ii) The intention of assault or use of criminal
force to any woman should be to outrage
or knowing it to be likely that he will
thereby outrage her modesty.
The above two ingredients are necessary to attract
the offences under Section 354 IPC. The ingredients
of Section 354 IPC is considered by this Court in
Prasanth's case (supra). The relevant portion is
extracted hereunder:
"........................Similarly, a case of assault or
criminal force to a woman with intent to
outrage her modesty under Section 354 of
the Indian Penal Code arises only when a
case of assault or use of criminal force by the
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
accused intending to outrage or knowing it to
be likely that he will thereby outrage her
modesty is made out. The facts of the case
need to be analysed in the light of the scope
of the offences attributed against the accused
as explained."
23. In Vijayan's case (supra) also this Court
considered the ingredients of Section 354 IPC. It will
be better to extract the relevant portion of that
judgment :
"14. In the case on hand, the trial court
acquitted the accused for the offences
punishable under S.323, S.341 and S.447 of
the IPC. The allegation is that the accused
caught hold of her nighty and attempted to
outrage her modesty. Essentials of offence
under S.354 of the IPC are, 1) that the
assault must be on a woman, 2) that the
accused must have used criminal force on
her, and 3) that the criminal force must have
been used on the woman intending thereby
to outrage her modesty. The act will amount
to outraging of modesty if it is such which
could be perceived as one capable of
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
shocking sense of decency of a woman.
Modesty of a woman is her sex, it is a virtue
which attaches to a female owing to her sex.
The offence of outraging the modesty is
committed when a person assaults or uses
criminal force to a woman intending to
outrage or knowing it to be likely that he will
thereby outrage her modesty. For a
conviction under S.354 of the IPC, it is not
enough merely to show that the accused
assaulted a woman; it must further be
proved beyond doubt, that he did so either
with the intention to outrage her modesty, or
with the knowledge that it was likely that he
will thereby outrage her modesty........"
24. In Sasidharan's case (supra) also, this
Court considered the ingredients of Section 354 IPC.
The same is extracted hereunder:
" 8. The next question to be considered is
whether the acts alleged against the
petitioner constitutes an offence under
Section 354 of Indian Penal Code. The
learned counsel appearing for the petitioner
has relied on the decisions reported in Ram
Das v. State of W.B., AIR 1954 SC 711, and
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
State of Punjab v. Major Singh, AIR 1967 SC
63, and argued that even if the entire
evidence is accepted as such, no offence
punishable under Section 354 is established
in this case. Section 354 of Indian Penal Code
reads as follows:--
"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".
Section 354 and Section 376 are two sections
in the Indian Penal Code intending to protect
women against the sexual lust of men.
Section 354 is enacted in the interest of
decency and morals. It is not the act of
outraging the modesty that is made an
offence under this Section. In order to
constitute an offence under the Section,
there must be an assault or use of criminal
force to any woman with the intention or
knowledge that the woman's modesty will be
outraged. So, in order to convict a person for
an offence under Section 354 of the Indian
Penal Code, the prosecution has to prove that
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
the accused assaulted or used criminal force
and that assault or criminal force was used
with an intention to outrage the modesty of
the victim. In Ram Das' case (supra) it was
held as follows:--
"Where an accused is tried for an
offence under Section 354, and an
assault is proved, the next question to
be considered is whether he did so with
intent to outrage the woman's
modesty, or with the knowledge that it
would be outraged".
It is also well settled position of law that the
reaction of the victim is not the sole criteria
to decide the nature of the offence. The
essence of a woman's modesty is her sex and
the culpable intention of the accused is the
crux of the matter. The reason of a woman to
the act of the accused can be rejected. In
Major Singh's case (supra), it was held that
the test of outrage of modesty must be
whether a reasonable man will think that the
act of the offender was intended to or was
known to be likely to outrage the modesty of
the woman. In considering the question, he
must imagine the woman to be a reasonable
woman and keep in view all circumstances
concerning her, such as, her station and way
of life and the known notions of modesty of
such a woman."
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
25. From the above, it is clear that the test of
outrage of modesty is to be determined by thinking
whether a reasonable man will think that the act of
the offender was intended to or was known to be
likely to outrage the modesty of the woman. This
Court perused the complaints in these cases. The
intention of the petitioners in all these cases is to see
that the complainants in these cases are not
obstructing the Finance Minister from presenting the
Budget in the assembly. Admitted case of the
complainants is that, there is a decision by the LDF
that the Finance Minister Sri. K.M. Mani shall not
present the Budget. The complainants in these two
cases and other LDF MLAs were admittedly going to
obstruct the Minister from presenting the Budget as
per the decision of the LDF. At that stage, the
petitioners touched the body of the complainants in
these cases is the admitted case. The petitioner in
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
Crl.M.C. No.3178/2016 wrongfully restrained the
complainant and grabbed her waist with his right
hand and applied force. It is alleged that, he pressed
on her back with his knee and held her close to his
body by applying force. Whether the action of the
petitioners can be justified, need not be discussed
here. The Apex Court in K. Ajith's case (supra)
observed that the act of vandalism committed by
legislators cannot be said to be manifestations of
freedom of speech and be termed as proceedings of
the Assembly. But, the question to be decided in
these cases is whether the offence under Section 354
IPC is made out in the facts and circumstances of
these cases.
26. As I observed earlier, to attract the offence
under Section 354 IPC, assault or use of criminal
force to any woman is necessary. It cannot be said
that, if the averments in the complaint are accepted,
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
no assault or use of force is used by the petitioners
in these cases against the complainants who are
women. Assault is defined in Section 351 IPC. The
same is extracted hereunder:
"351. Assault. -- Whoever makes any gesture, or
any preparation intending or knowing it to be likely
that such gesture or preparation will cause any
person present to apprehend that he who makes
that gesture or preparation is about to use criminal
force to that person, is said to commit an assault.
Explanation. -- Mere words do not amount to
an assault. But the words which a person uses may
give to his gestures or preparation such a meaning
as may make those gestures or preparations
amount to an assault."
27. Force is defined in Section 349 IPC. A
person is said to use force to another if he caused
motion, change of motion, or cessation of motion to
that other, or if he causes to any substance such
motion, or change of motion, or cessation of motion
as brings that substance into contact with any part of
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
that other's body, or with anything which that other
is wearing or carrying, or with anything so situated
that such contact affects others sense of feeling.
Criminal force is defined in Section 350 IPC. The
same is also extracted hereunder:
"350. Criminal force. -- Whoever intentionally
uses force to any person, without that person's
consent, in order to the committing of any
offence, or intending by the use of such force to
cause, or knowing it to be likely that by the use of
such force he will cause injury, fear or annoyance
to the person to whom the force is used, is said to
use criminal force to that other."
28. In the light of the definition of force and
assault as per Sections 349 and 351 of IPC, I am of
the considered opinion that, there is prima facie case
in the complaints in these cases that the petitioners
assaulted and used force on the complainants, who
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
are women.
29. The next question to be decided is whether
the act is intended to outrage or knowing it to be
likely that he will thereby outrage her modesty.
Therefore, the intention to outrage or knowing it to
be likely that he will thereby outrage her modesty is
necessary. Admittedly, the complainants in these
cases were trying to obstruct the Finance Minister of
the State from presenting the Budget which is his
constitutional duty. A reading of the complaint would
show that the intention of the petitioners is only to
see that the Finance Minister present the Budget. It
is also a fact to be noted that the petitioner in
Crl.M.C. No.3178/2016 is aged 67 years. He has
been admittedly a Member of the Legislative
Assembly for the last several years. As I mentioned
earlier, the admitted case of the complainants is to
obstruct the Minister and the same is obstructed by
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2024:KER:69787
the petitioners. From the facts it is clear that, the
intention of the petitioners is to see that the Finance
Minister present the Budget. The test of outrage of
modesty is to be determined by thinking whether a
reasonable man will think that the act of the offender
was intended to or was known to be likely to outrage
the modesty of the woman. I am of the considered
opinion that, even if there is assault or use of force
from the side of the petitioners towards the
complainants, the offence under Section 354 IPC is
not made out.
30. The learned counsel appearing for the 1 st
respondent in Crl.M.C.Nos.2111/2016 and
3178/2016 relied on the judgment of the Apex Court
in Vidyadharan v. State of Kerala [2004 (1) SCC
215]. The counsel takes me through the relevant
paragraph of the above Judgment and submitted that
the offence is attracted. It will be better to extract
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
paragraph Nos.9 and 10 of the above judgment:
"9. In order to constitute the offence under
S.354 mere knowledge that the modesty of a
woman is likely to be outraged is sufficient without
any deliberate intention having such outraged alone
for its object. There is no abstract conception of
modesty that can apply to all cases. (See State of
Punjab v. Major Singh (AIR 1967 SC 63)). A careful
approach has to be adopted by the court while
dealing with a case alleging outraged of modesty.
The essential ingredients of the offence under S.354
IPC are as under: (i) that the person assaulted
must be a woman; (ii) that the accused must have
used criminal force on her, and (iii) that the criminal
force must have been used on the woman intending
thereby to outrage her modesty.
10. Intention is not the sole criteria of the
offence punishable under S.354 IPC, and it can be
committed by a person assaulting or using criminal
force to any woman, if he knows that by such act
the modesty of the woman is likely to be affected.
Knowledge and intention are essentially things of
the mind and cannot be demonstrated like physical
objects. The existence of intention or knowledge
has to be culled out from various circumstances in
which and upon whom the alleged offence is alleged
to have been committed. A victim of molestation
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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and indignation is in the same position as an injured
witness and her witness should receive same
weight............"
31. It is true that the Apex Court observed that
the intention is not the sole criteria of the offence
punishable under Section 354 IPC and it can be
committed by a person assaulting or using criminal
force to any woman if he knows that by such an act,
the modesty of the woman is likely to be affected.
The facts in the above case is that, when the victim
was alone in her house on 01.10.1992 at about
02.00 PM, the accused entered her house and went
to the kitchen where she was cooking and attempted
to get hold of her hand and when she attempted to
escape from him by running to the front room and
was attempting to close the door, the accused
followed her, opened the door forcibly and caught
hold of her and grasped her and when she made a
hue and cry, her brother PW3 and other witnesses
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
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including PW2 came there and at that time, the
accused left PW1 and pushed down PW3 from the
verandah and went along with his parents who came
there hearing the hue and cry. In the background of
the above facts, the Apex Court observed like this.
32. The factual situation in these cases is
entirely different. The incident in this case happened
in a Legislative Assembly where the complainants
tried to obstruct the Minister from presenting the
Budget for the financial year. At that time, when the
complainants were proceeding to obstruct the
Minister, the petitioners obstructed them. In such
situation, it cannot be said that there is an intention
to outrage the modesty, but the intention is to see
that the Finance Minister present the Budget, which
is his constitutional duty.
33. The counsel for the 1st respondent also
relied the judgment of the Apex Court in Rupan
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
Deol Bajaj v. Kanwar Pal Singh Gill [1995(6) SCC
194]. That was also a case in which the incident
happened at a dinner party. The factual situation in
that case is different from the factual situation in
these cases.
34. The counsel appearing for the 1st
respondent in Crl.M.C. Nos.3178/2016 and
2111/2016 submitted that, this Court may not
interfere with the order taking cognizance invoking
the powers under Section 482 of Cr.P.C. The counsel
relied on the decisions of this Court in K.B. Ganesh
Kumar v. State of Kerala [2023 (6) KLT 477] and
Nagawwa v. Veeranna Shivalingappa Konjalgi &
Others [1976 (3) SCC 736]. It is a settled principle
that at the stage of issuing process under Section
204 Cr.P.C., the duty of the Court is only to find out
whether there is sufficient ground for proceeding
with the case, whether the allegation made in the
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
complaint or the statement of the witnesses recorded
in support of the same taken at their face value,
make out a case against the accused or the
complaint does not disclose the essential ingredients
of an offence which is alleged against the accused.
In Nagawwa's case (supra), the Apex Court
considered this in detail. It will be better to extract
paragraph No.5 of the above judgment:
"5. Mr Bhandare laid great stress on the words
"the truth or falsehood of the complaint" and
contended that in determining whether the
complaint is false the court can go into the
question of the broad probabilities of the case or
intrinsic infirmities appearing in the evidence. It is
true that in coming to a decision as to whether a
process should be issued the Magistrate can take
into consideration inherent improbabilities
appearing on the face of the complaint or in the
evidence led by the complainant in support of the
allegations but there appears to be a very thin
line of demarcation between a probability of
conviction of the accused and establishment of a
prima facie case against him. The Magistrate has
been given an undoubted discretion in the matter
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
and the discretion has to be judicially exercised
by him. Once the Magistrate has exercised his
discretion it is not for the High Court, or even this
Court, to substitute its own discretion for that of
the Magistrate or to examine the case on merits
with a view to find out whether or not the
allegations in the complaint, if proved, would
ultimately end in conviction of the accused. These
considerations, in our opinion, are totally foreign
to the scope and ambit of an inquiry under
Section 202 of the Code of Criminal Procedure
which culminates into an order under Section 204
of the Code. Thus it may be safely held that in the
following cases an order of the Magistrate issuing
process against the accused can be quashed or
set aside:
(1) where the allegations made in the
complaint or the statements of the witnesses
recorded in support of the same taken at their
face value make out absolutely no case against
the accused or the complaint does not disclose
the essential ingredients of an offence which is
alleged against the accused;
(2) where the allegations made in the
complaint are patently absurd and inherently
improbable so that no prudent person can ever
reach a conclusion that there is sufficient ground
for proceeding against the accused;
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
(3) where the discretion exercised by the
Magistrate in issuing process is capricious and
arbitrary having been based either on no evidence
or on materials which are wholly irrelevant or
inadmissible; and
(4) where the complaint suffers from
fundamental legal defects, such as, want of
sanction, or absence of a complaint by legally
competent authority and the like.
The cases mentioned by us are purely
illustrative and provide sufficient guidelines to
indicate contingencies where the High Court can
quash proceedings."
35. I am of the considered opinion that the
complaints in these cases do not disclose the
essential ingredients of the offences which are
alleged against the accused. In such circumstances,
this Court is justified in quashing the proceedings
invoking the powers under Section 482 Cr.P.C. The
counsel also relied on the judgment of the Apex
Court in Bhushan Kumar v. State (NCT of Delhi)
[2012 (5) SCC 424]. There also the powers of the
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
Magistrate at the stage of 204 Cr.P.C. is considered in
detail. But, it is a fact that, if no ingredients of the
offence are made out in the complaint, this Court can
interfere under Section 482 Cr.P.C.
36. The counsel appearing for the 1st
respondent in Crl.MC No.370/2016 submitted that
the petitioner has not produced the statement
recorded by the learned Magistrate before taking
cognizance. The learned counsel made available a
copy of the statement. This Court perused the same.
As I mentioned above, the complaint and the
statement recorded at the pre-cognizance stage
would not attract the offence under Section 341 or
354 of IPC. In such circumstances, I am of the
considered opinion that the order taking cognizance
under Sections 341 and 354 IPC is illegal.
The upshot of the above discussion is that these
Criminal Miscellaneous Cases are to be allowed.
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
Therefore, these Criminal Miscellaneous Cases
are allowed in the following manner:
1. Crl.M.C. Nos. 3178/2016 and 2111/2016
are allowed quashing all further
proceedings against the petitioners in C.C.
No. 1389/2015 on the file of the Judicial
First Class Magistrate Court-III,
Thiruvananthapuram.
2. Crl.M.C. No.370/2016 is allowed. All
further proceedings against the petitioner
in C.C. No.1390/2015 on the file of the
Judicial First Class Magistrate Court-III,
Thiruvananthapuram are quashed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM/JV/nvj
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
PETITIONER ANNEXURES
ANNEXURE A CERTIFIED COPY OF CMP NO.1557/2015
BEFORE THE COURT OF JFCM-III,
THIRUVANANTHAPURAM.
ANNEXURE B CERTIFIED COPY OF STATEMENT
DTD.12.6.2015 MADE BY 1ST
RESPONDENT IN CMP NO.1557/2015
BEFORE THE COURT OF JFCM-III,
THIRUVANANTHAPURAM.
ANNEXURE C COPY OF COMPLAINT DTD.13.3.2015
SUBMITTED BY 1ST RESPONDENT BEFORE
THE HON'BLE SPEAKER, KERALA
LEGISLATIVE ASSEMBLY.
ANNEXURE D COPY OF COMPLAINT DTD.23.3.2015
SUBMITTED BY 1ST RESPONDENT BEFORE
DIRECTOR GENERAL OF POLICE.
ANNEXURE E CERTIFIED COPY OF THE ORDER
DTD.19.9.2015 IN CMP NO.1557/2015
BEFORE THE COURT OF JFCM-III,
THIRUVANANTHAPURAM.
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
PETITIONER EXHIBITS
A1. TRUE COPY OF THE CMP NO.1557/2015
BEFORE THE COURT OF JMFC-III,
THIRUVANANTHAPURAM.
A2 TRUE COPY OF THE STATEMENT DATED
12/6/2015 MADE BY THE 1ST
RESPONDENT IN CMP NO.1557/2015
BEFORE THE COURT OF JMFC-III,
THIRUVANANTHAPURAM.
A3. TRUE COPY OF THE COMPLAINT DATED
13/3/2015 SUBMITTED BY THE 1ST
RESPONDENT BEFORE THE HONOURABLE
SPEAKER, KERALA LEGISLATIVE
ASSEMBLY.
A4. TRUE COPY OF THE COMPLAINT DATED
23/3/2015 SUBMITTED BY THE 1ST
RESPONDENT BEFORE THE DIRECTOR
GENERAL OF POLICE
A5. TRUE COPY OF THE ORDER DATED
19/9/2015 IN CMP NO.1557/2015
BEFORE THE COURT OF JMFC-III,
THIRUVANANTHAPURAM.
Crl.M.C. Nos. 370, 2111 & 3178 of 2016
2024:KER:69787
PETITIONER ANNEXURES
ANNEXURE 1- TRUE COPY OF THE
COMPLAINT DATED 6-5-2015 PREFERRED
BEFORE THE COURT.
ANNEXURE 2- TRUE COPY OF THE
DEPOSITION MADE BY THE FIRST
RESPONDENT BEFORE THE COURT.
ANNEXURE 3- TRUE COPY OF THE ORDER
DATED 19-9-2015 PASSED BY THE COURT
BELOW IN C.M.P.NO. 1862 OF 2015.
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
