Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 CRL.MC NO. 144 OF 2019 [AGAINST C.C.NO.1235/2017 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ERNAKULAM] PETITIONERS/ACCUSED:
1 C.J. THOMAS, AGED 53 YEARS, S/O. RAPHEL, CHAKKALAKKAL HOUSE, KUSUMAGIRI P.O., ATHANI, KAKKANAD, ERNAKULAM. 2 K.V. MURALEEDHARAN, AGED 55 YEARS S/O. VELU KALLUVEETTILPARABU HOUSE, PACHALAM, KOCHI-12, ERNAKULAM, CENTRAL, ERNAKULAM. 3 C.K. RAHIM, AGED 41 YEARS S/O. KUNJUMTJHAMMED, CHAMBAKKERY HOUSE, KUNNUKKARA P.O., KUNNUKARA, CHENGAMANAD, ERNAKULAM. 4 P.R. RATHEESH, AGED 42 YEARS S/O. P.C. RAGHAVAN, PANIKASSERY HOUSE, KALABHAVAN ROAD, ERNAKULAM NORTH, ERNAKULAM. 5 VARGHEESE V.R., AGED 31 YEARS S/O. V.M. RAPHEL, VADAKKEDATH HOUSE, VAYANASALA ROAD. 6 VINCENT M.P., AGED 36 YEARS S/O. VARGHEESE, MATHIRAPPILLY HOUSE, EROOR P.O., KANIYAMPUZHA ROAD, TRIPUNITHURA, ERNAKULAM. 7 K.N. SUNIL KUMAR, AGED 43 YEARS S/O. NARAYANAN, THOPPUVELI HOUSE, PERUMBALAM VILLAGE, PERUMBALAM, ALAPPUZHA 8 M.R. NISSMON, AGED 31 YEARS S/O. ABDUL RAHSEED, MOITHEEN KAVEEDU, NETTOOR P.O. INTUC JN., ERNAKULAM, CENTRAL, ERNAKULAM. 9 MADHU C.B., AGED 37 YEARS S/O. BALAN, RUGMA NIVAS, UDAYATHUM VATHILKARA, PANANGAD, ERNAKULAM. 10 BABU M.S., AGED 57 YEARS S/O. SREEDHARAN, MANAYAKUZHIYIL HOUSE, VAIKAPRAYAR,
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VAIKKOM P.O., KOLLAM. 11 SUMESH KUMAR P.S., AGED 30 YEARS S/O. SUKUMARAN, SAHRIDAYA NAGAR, SANTHIGIRI, NAD P.O., ALUVA, ERNAKULAM. 12 K.G. HARI, AGED 48 YEARS S/O. GOPI, MATTATHIL HOUSE, AMBALLOOR SOUTH SIDE, KANJIRAMATTOM, KOTTAYAM. 13 NISHAD C.K., AGED 39 YEARS S/O. KARTHIKEYAN, CHEMMANATTU HOUSE, VENNALA P.O., ERNAKULAM. 14 SOMAN P.N. AGED 35 YEARS S/O. NARAYANAN, AILEPULLI HOUSE, DESHEEYA KAVALA, VAZHAKKALA, KAKKANAD, ERNAKULAM. 15 GEORGE P.P. AGED 47 YEARS S/O. PETER P.K., PANAKKALAM HOUSE, CHERANALLOOR VILLAGE, VISHNUPURAM, ERNAKULAM. 16 T.S. SUBITH, AGED 36 YEARS S/O. SUDHAKARAN, KALLUNKAL HOUSE, SHANMUGHAMPURAM, PACHALAM, ERNAKULAM. 17 MANOJ, AGED 26 YEARS S/O. MURALI, PARATTI HOUSE, PREYAR COLLEGE, NAYARAMBALAM, EDAVANAKKAD, NARAKKAL, ERNAKULAM. 18 SOBY, AGED 30 YEARS S/O. RAJU, KAYYANIKKAL HOUSE, SOUTH PARAVOOR, ANGADI, ERNAKULAM DISTRICT. 19 MANU, AGED 29 YEARS S/O. BAHULEYAN, PUTHANPARAYIKKAL HOUSE, NEAR KRISHNA TEMPLE, POOTHOTTA, ERNAKULAM CENTRAL. 20 SARATH BABU, AGED 29 YEARS S/O. BABU, BALIPPARAMBIL HOUSE, CHANGAMPUZHA NAGAR, NEW ROAD, KOONAMTHAI, ERNAKULAM CENTRAL, ERNAKULAM. 21 THOMAS AGED 63 YEARS S/O. JOHN, KORAMANGALATHU HOUSE, NEAR MARKET, KOONAMMAVU, KOTTUVALLY VILLAGE, ERNAKULAM. 22 NEENA P. THANKACHAN, AGED 27 YEARS D/O. THANKACHAN, PANAIKKAL HOUSE, VYTTILA P.O., ERNAKULAM. 23 SOBHA G.,
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AGED 50 YEARS D/O. GOPI MENON, EZHUTHULLIL HOUSE, RAVIPURAM, KOCHI - 16, ERNAKULAM. 24 SAUMYA DENISH, AGED 33 YEARS D/O. DENISH, ELANKUNNAPUZHA, NJARAKKAL, VYPPIN, ERNAKULAM. 25 ASHA PETER, AGED 44 YEARS S/O. PETER, KATTUPARAMBIL HOUSE, SRM ROAD, ERNAKULAM NORTH, ERNAKULAM. 26 NISHA AJITH, AGED 34 YEARS D/O. AJITH, SANKEERTHANA, PARAYIL ROAD, ELAMAKKARA, ERNAKULAM. 27 SUNITHA, AGED 30 YEARS S/O. PETER,MAHESH, AMUKKAL HOUSE, EDAPPALLY NORTH P.O., VALLEKKUNNAM, ERNAKULAM. 28 USHA KUMARI, AGED 37 YEARS D/O. ANILKUMAR, UPASANA, VELIYATHUNADU, ALUVA, ERNAKULAM. 29 VINEETHA, AGED 37 YEARS D/O. K.S. MANI, GEETHABHAVAN, GODOWN ROAD, MANJUMMEL, ERNAKULAM. 30 SAUMYA C.N., AGED 33 YEARS D/O. NARAYANA C.V., CHERIYAPARAMBIL HOUSE, POIKATTUSSERY, CHENGAMANAD, ERNAKULAM. 31 BEENA JITHU, AGED 43 YEARS D/O. GEORGE, MULAYIRIKKAL HOUSE, KACHERIPADY NORTH, PARAVOOR, ERNAKULAM. 32 MANJU ALEX, AGED 43 YEARS D/O. THOMAS M.V., EARALI HOUSE, PERUMBADANNA, NORTH PARAVOOR, ERNAKULAM. 33 C.J. ANTONY, AGED 38 YEARS S/O. C.A. JOY, CHIRAYATH HOUSE, VADUTHALA, ERNAKULAM 34 P.R. RAMESH, AGED 40 YEARS S/O. RAJAN, THEKKETHOTTATHIL HOUSE, CMC 31, CHERTHALA, ALAPPUZHA. 35 THAJ, AGED 36 YEARS S/O. HUSAAIN, PEECHINGAPARAMBU HOUSE, VATTEKUNNAM, EDAPPALLY P.O., ERNAKULAM.
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36 O.M. ABDULLA, AGED 55 YEARS S/O. MUHAMMED, PUTHUKODI PARAMB HOUSE, PONNARIMANGALAM P.O., MULAVUKAD, ERNAKULAM. 37 BEENA K.S. AGED 40 YEARS D/O. AJIKUMAR, CHITHIRA HOUSE, ENAR PUNNAIKKAL TEMPLE, ELAMAKKARA, ERNAKULAM. 38 JOMOL M.J., AGED 35 YEARS AUGUSTINE, CHAKKIYATH HOUSE, NEAR GOWREESWARA TEMPLE, CHERAI, PALLIPPURAM VILLAGE, ERNAKULAM. 39 SMITHA, AGED 34 YEARS D/O. SAJEEV, NEDUMPARAMBIL HOUSE, MUNAMBAM, PALLI PORT, KUZHUPPILLY VILLAGE, ERNAKULAM. 40 NIJU ROOPESH, AGED 35 YEARS S/O. ROOPESH, MATTAMMEL HOUSE, PATHADIPPALAM, NEW ROAD, CHANGAMPUZHA NAGAR P.O., ERNAKULAM. BY ADVS. N.SATHEESH SRI.K.JANARDHANA SHENOY
RESPONDENT/S: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. OTHER PRESENT: ADV SREEJA V -SR PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC No. 144 OF 2019 5
O R D E R
The petitioners are the accused Nos.1 to 40, in Crime No.2517/2016 of Ernakulam Central Police Station, which is now pending as C.C.No.1235/2017 before the Judicial First Class Magistrate Court-II, Ernakulam. The offences alleged against the petitioners are under Sections 143,147,283,188 and 447 r/w-section 149 of the Indian Penal Code (IPC).
2. The allegation against the petitioners
is that on 4.11.2016 at about 11.30 a.m., the petitioners obstructed the road situated in front of the building named ‘Kurian Tower’ at Banerji Road, Ernakulam, and they also trespassed into the institutions of Muthoot Group functioning in the said building and obstructed the functioning of the office of the said institution. It is also alleged that such CRL.MC No. 144 OF 2019 6 criminal trespass and obstruction were in violation of the order passed by the High Court of Kerala directing not to obstruct the functioning of the said institutions. The accused persons have, therefore, allegedly committed the said offences. Annexure-A1 is the FIR and the final report submitted by the Police. This Crl.M.C. is filed for quashing all further proceedings pursuant to the same.
3. Heard Sri.N. Satheesh, the learned counsel for the petitioners and Smt.Sreeja V., the learned Senior Public Prosecutor for the State.
4. The contention put forward by the
learned counsel for the petitioners is that the allegations contained in Annexure-A1 and the materials placed along with the same would not attract any of the offences alleged. All the petitioners were employees of the Muthoot group
institutions. On the date of occurrence, the CRL.MC No. 144 OF 2019 7 employees of Muthoot institutions were on
strike, and they carried out demonstrations in front of Muthoot group offices across Kerala. As part of the same, the employees carried out a protest in front of the institutions of the Muthoot Group situated in Kurian tower and raised slogans. The allegation that they have obstructed the tarred portion of the Banerji road and have obstructed the functioning of the institutions of the Muthoot group was denied by them by stating that those are false allegations. According to the petitioners, materials placed along with the final report, even if accepted as true, would not make out the offences alleged.
5. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions.
6. I have gone through the records and heard the contentions raised from either side. CRL.MC No. 144 OF 2019 8
7. One of the offences alleged against the
petitioners is under Section 188 of the Code of Criminal Procedure (Cr.PC). It is pointed out by the learned counsel for the petitioners that cognizance taken by the learned Magistrate for such an offence is not legally sustainable by virtue of the special procedure contemplated under Section 195(1)(a) of Cr.PC. As rightly pointed out by the learned counsel for the petitioners, Section 195(1)(a) Cr.PC provides that no court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. In this case, the offence under Section 188 is incorporated because of the reason that the petitioners had allegedly violated the orders passed by the High Court of CRL.MC No. 144 OF 2019 9 Kerala wherein it was directed that no obstruction shall be caused to the functioning of the institution of Muthoot group. However, since the cognizance of the offence under Section 188 can be taken only in the manner contemplated under Section 195(1)(a) of Cr.P.C, the cognizance taken on the police report submitted under Section 173(2) Cr.PC is not legally sustainable. Therefore, the cognizance taken for the said offence by the learned Magistrate is liable to be quashed for that sole reason.
8. Section 447 of Cr.PC is yet another
offence alleged against the petitioners. The said offence is alleged on the ground that the petitioners have trespassed into the office of the institutions of the Muthoot Group situated in Kurian tower. However, the crucial aspect to be noticed in this regard is that allegations in the final report concerning the same are very CRL.MC No. 144 OF 2019 10 vague. Even though 40 persons were arrayed as accused persons on the allegation that they sat on the tarred portion of the road in front of the building named Kurian tower where the institutions of the Muthoot group were functioning, only some of the said employees allegedly trespassed into the office of the Muthoot group and caused an obstruction. Among the 40 persons who trespassed into the office of the said institutions are not specifically mentioned. The nature of the obstruction caused is also not seen specifically described in the final report. More importantly, even though the trespass to the building and obstruction to the functioning of the office were alleged, none of the staff of the said office are seen made any complaint, and none of them were arrayed as witnesses. It is discernible from the final report that only witnesses are police officers. In the absence of any witnesses who were CRL.MC No. 144 OF 2019 11 obstructed by the alleged acts of the accused persons, it may not be possible to conclude that an obstruction indeed took place. In such circumstances, the only conclusion possible is that, as there are no materials to substantiate the criminal trespass and obstruction to the Muthoot group by the accused persons, the offence under Section 447 would not be attracted.
9. Another offence alleged is under Section
283 of IPC. The aforesaid provision pertains to the act of causing danger, obstruction or injury to any person in any public way or public line of navigation. In this case, the said offence is incorporated on the allegation that, the petitioners sat on the tarred portion of the road in front of Kurian tower and thereby obstructed free flow of traffic. As held in Preetha K.K. and Others v. State of Kerala and Anr. [2016(2)KLT 482], to attract offence under CRL.MC No. 144 OF 2019 12 Section 283, there should be clear and cogent materials disclosing that obstruction was caused to any person in any public way. A mere allegation alone is not sufficient. In this case, apart from official witnesses, none of the persons whom the petitioners allegedly obstructed were cited as a witness by the prosecution. Therefore, I am of the view that, the materials produced along with Annexure-A1 are not sufficient to establish the offence under Section 283 IPC.
10. The remaining offences are under
Sections 143,147 r/w. Section 149 of IPC. Section 143 IPC deals with punishment for being a member of an unlawful assembly. The term ‘unlawful assembly’ is defined under Section 141 of IPC, which reads as follows: “141. Unlawful assembly An assembly of five or more persons is designated as “unlawful assembly”, if the common object of the persons composing that assembly is_ First- To overawe by criminal force, or CRL.MC No. 144 OF 2019 13
show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant, or Second- To resist the execution of any law, or of any legal process; or Third-To commit any mischief or criminal trespass, or other offence; or Fourth-By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right, or Fifth-By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation: An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”
On careful scrutiny of the nature of the allegations raised against the petitioners, it can be seen that the acts allegedly committed by the petitioners would not fall under any of the five categories mentioned in Section 141 of IPC. The main allegation is that the petitioners have committed criminal trespass into and obstructed the functioning of the institution of the Muthoot Group. I have already found that there CRL.MC No. 144 OF 2019 14 are no sufficient materials to substantiate the said allegations and, therefore, the offence under Section 447 IPC is not attracted. Similarly, it is also found that the offence under Section 283 IPC is also not attracted. On scrutinizing the five instances referred to under Section 141 IPC, it can be seen that in three of the same, one necessary ingredient is exercising criminal force. Criminal force is defined under Section 350 of IPC, which reads as follows:
“350. Criminal force: Whoever intentionally uses force to any person, without the person’s consent, in order to the committing of any force, 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.”
In this case, the main allegation is holding a protest and raising slogans. As mentioned above, the allegation of criminal trespass and obstruction were already found to be without any CRL.MC No. 144 OF 2019 15 materials. As far as the act of raising slogans and holding a protest is concerned, that by itself cannot be treated as instance where the exercise of criminal force can be attributed. The right to protest is one of the essential facets of democracy, and it is protected by the constitutional principles enshrined under Section 19(1)(a) and (b) of the Constitution of India. Therefore, merely because of the reason that persons have formed into an assembly in protest and raised slogans, they cannot be implicated for any offence. Consequently, I am of the view that, since the exercise of criminal force is not established, and the assembly of the petitioners were not with a common object of committing an act coming within the five instances referred to under Section 141 IPC, such assembly of the petitioners cannot be treated as an unlawful. Therefore, the offence under Section 143 of IPC would not be attracted. CRL.MC No. 144 OF 2019 16
11. What remains is the offence under
Section 147 IPC. The said provision deals with punishment for rioting. ‘Rioting’ is defined under Section 146 IPC as a force used by an unlawful assembly or by any member thereof in the prosecution of the common object of such assembly. In this case, I have already found that, there is no unlawful assembly as the petitioners, who were employees of Muthoot group were holding a protest for the enforcement of their rights. Therefore, as there is no unlawful assembly, the offence of rioting as defined under Section 146 IPC would not be attracted as unlawful assembly is the most essential ingredient. In such circumstances, I am of the view that the offence under Section 147 IPC is also not attracted as against the petitioners herein.
12. The view taken by me in this regard is
CRL.MC No. 144 OF 2019 17 fortified by various decisions rendered by this Court, such as Poulose K.K. v. State of Kerala [2013(4)KLT 687] and Preetha K.K and others v. State of Kerala and Another [2016 (2) KLT 482].
13. Thus, from all the materials placed on
record, it can be seen that none of the offences alleged against the petitioners is attracted and therefore, the prosecution against them on the basis of Annexure-A1 is a clear abuse of process of law. In such circumstances, this Crl.M.C. is allowed, Annexure-A1 F.I.R and final report submitted in Crime No.2517/2016 and all further proceedings pursuant to it, including the proceedings in C.C.No.1235/2017 on the file of the Judicial First Class Magistrate Court-II, Ernakulam are hereby quashed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No. 144 OF 2019 18 APPENDIX OF CRL.MC 144/2019 PETITIONER’S ANNEXURES ANNEXURE-A1 A TRUE COPY OF THE FIR AND CHARGE SHEET FILED BY THE INVESTIGATION OFFICER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT- II, ERNAKULAM.