Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY, THE 31ST DAY OF JANUARY 2020 / 11TH MAGHA, 1941 Crl.MC.No.2532 OF 2019(F) CRIME NO.2563/2018 OF Nemom Police Station , Thiruvananthapuram PETITIONERS/ACCUSED: 1 MANESH THOMAS, AGED 42 YEARS MANAGING PARTNER, KANNAMTHANAM AND CO., MALAYAM P.O, THIRUVANANTHAPURAM. 2 RAJU KANNAMTHANAM AND CO., MALAYAM P.O, THIRUVANANTHAPURAM. BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SRI.ENOCH DAVID SIMON JOEL SRI.GEORGE A.CHERIAN RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (THROUGH THE SUB INSPECTOR OF POLICE, NEMOM POLICE STATION). OTHER PRESENT: SMT.M.K.PUSHPALATHA PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 4.12.2019, THE COURT ON 31.01.2020 PASSED THE FOLLOWING:
ASHOK MENON, J.
------------------------------------ Crl.MC No.2532 of 2019 ------------------------------------- Dated this the 31st day of January, 2020
O R D E R
Petitioners are accused in Crime No.2563/2018 of Nemom Police Station for having allegedly committed offences punishable under Section 188 IPC and Section 9B(1)(b) of the Explosives Act, 1884. The petitioners seek interference of this Court invoking the provisions under Section 482 Cr.PC to quash the FIR at Annexure- A2. The first petitioner is the Managing Partner of a quarry and holds Annexure-A1 valid licence to conduct blasting operations in connection with the quarrying activities. The second petitioner is his manager.
2. Prosecution case is that on 2.11.2018 the
petitioners conducted blasting operations in their quarry situated close to the buffer zone of the Army Firing Range in violation of the judgment in WP(C) No.25602/2009 at Annexure-A3, and thereby committed an offence punishable under Section 188 IPC and under Section 9B(1)(b) of the Explosives Act.
3. The petitioners challenge the prosecution on two grounds. First, that they do have a valid licence, and secondly, that there is non compliance of section 195(a) Cr.PC for the reason that the complaint was not filed by the public servant, whose lawful authority was violated.
4. The specific allegation of the prosecution is
that the petitioners had in violation of the judgment
of this court in WP(C) No.25602/2009 conducted blasting operations. If that is to be believed, it is a violation of this court's order, and except on a complaint in writing of an officer of this court or a public officer this court may authorise in writing in this behalf, cognizance cannot be taken. The court referred to in Section 195 Cr.PC could also be a civil or revenue or criminal court and also includes a tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purpose of this section. According to the petitioners, the provisions of Section 195(a) Cr.PC are
mandatory and non compliance of that will vitiate the prosecution case and all other consequential orders. Even if a complaint alleging offence under Section 188 IPC is made in conjunction with other violations, the complaint can be taken cognizance of only on a written complaint of such public servant received by the court.
5. That apart, it is also contended by the petitioners that they are not parties to the writ petition in which Annexure-A3 judgment is passed. It is only after lodging of the FIR at Annexure-A2 that the petitioners come to know about such a judgment. It is further submitted that the petitioners did not conduct any blasting operations near the buffer zone of
the Army Firing range, as alleged. In view of the fact that the petitioners possess an explosives licence, offence under Section 9B(1)(b) of the Explosives Act
will also not be attracted.
6. Heard the learned Senior Counsel, Sri.Bechu Kurian, appearing for the petitioners and the learned Public Prosecutor appearing for the respondents.
7. A reading of the judgment of this Court at Annexure-A3 indicates that the writ petition was filed against respondents 6 to 8 therein and the observations made by this Court reads thus:
“3. In view of the above statement in the counter affidavit that no quarrying operation is being conducted within the statutory distance limit from the army firing range and nothing survives in this petition. Hence, this writ petition is closed. The Government is directed to have a constant watch over the starting of any mining process either legally or illegally in and around the petitioners' Army Firing Range area.”(sic)
The writ petition was filed by the Commanding Officer Solah Madras, (Travancore) 16 Madras, (Travancore), apart from the Union of India, rep. by its Secretary, Ministry of Defence. The petitioners herein were not parties to the aforesaid writ petition.
8. The party respondents therein had specifically contended that they had not conducted quarrying operation within the statutory distance from the Army Firing Range. Considering that statement in the counter affidavit, the writ petition was closed without any specific direction to the respondents therein. Neither was there a direction against any other persons involved in blasting. However, the Government was directed to keep a constant watch regarding the mining process in and around the petitioners' Army Firing Range area.
9. In the instant case, the Government of Kerala has no case that firing was conducted in and around the
Army Firing Range. No steps were taken to cancel the licence granted to the petitioners. In case, there was breach of the direction of this Court, it was for the Government or the authorities to take appropriate action to either modify the licence or cancel it. No
such action has been taken by the Government. Under the circumstances, it has to be assumed that the petitioners did not commit breach of the licence
conditions by conducting blasting in the buffer area of the firing squad belonging to the defacto complainant.
10. That apart, it is also pertinent to note that offence under Section 188 IPC cannot be taken cognizance of other wise than by due process mentioned
in Section 195(1)(a)(i) Cr.PC. Admittedly, there is no such compliance of the aforesaid provision. Section 188 IPC reads as thus: “188. Disobedience to order duly promulgated by public servant
Whoever, knowing that, by an order
promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management disobeys such direction; shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation : It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.”
11. The complaint in the instant case was filed by the Quarter Master Major Deepak Singh of 19th Bn Madras Regiment on 8.12.2018 on the basis of which, Annexure-A2 FIR has been lodged by the Station House
Officer. May be he is a public servant under Section 21 IPC, but he is not the officer who has promulgated the order that was allegedly violated. Section 195(a) Cr.PC states that no court shall take cognizance of an offence punishable under Section 188 IPC, except on a complaint in writing of the public servant concerned or
of some other public servant to whom he is administratively subordinate.
12. The provisions of Section 195(a) Cr.PC cannot be evaded by resorting to a device of clubbing of other cognizable offences also. (See MS Ahlawat v. State of Haryana, [AIR 2000 SC 168])
13. The judgment in the Writ Petition is not
applicable to the petitioners as they were not parties to it and they were not interdicted from conducting their quarry. The Government has not taken any action against the petitioners for violation of the terms of the Explosives licence issued to them.
In the result, Crl.MC is allowed and Annexure-A2 FIR in Crime No.2563/2018 of Nemom Police Station stands quashed under Section 482 Cr.PC. Sd/- ASHOK MENON JUDGE jg APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE A1 A TRUE COPY OF THE EXPLOSIVE LICENSE DATED 22.02.2017. ANNEXURE A2 A TRUE COPY OF THE FIR DATED O8.12.2018 NUMBERED AS 2563/2018 OF NEMOM POLICE STATION. ANNEXURE A3 A TRUE COPY OF THE JUDGMENT DATED 07.08.2014 IN WP(C) NO. 25602/2009