Allowed

C.J. Thomas, v. State of Kerala

Kerala HC9 Dec 2022Crl.MC/144/2019

Case brief

AI extract

What is this about?

The High Court of Kerala held that allegations against striking employees for obstruction and trespass were not substantiated by sufficient material. Consequently, it quashed the FIR and further proceedings under IPC Sections 143, 147, 188 Cr.PC, and others as an abuse of process of law.

What did the court decide?

FIR (Annexure-A1), final report, and all further proceedings in C.C.No.1235/2017 are quashed.

C.J. Thomas, Vs State of Kerala — Quashing and FIR | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

¶4

FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944

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CRL.MC NO. 144 OF 2019

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[AGAINST C.C.NO.1235/2017 PENDING BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT-II, ERNAKULAM]

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PETITIONERS/ACCUSED:

¶8

1C.J. THOMAS,
AGED 53 YEARS, S/O. RAPHEL,
CHAKKALAKKAL HOUSE, KUSUMAGIRI P.O., ATHANI, KAKKANAD,
ERNAKULAM.
2K.V. MURALEEDHARAN,
AGED 55 YEARS
S/O. VELU KALLUVEETTILPARABU HOUSE, PACHALAM, KOCHI-12,
ERNAKULAM, CENTRAL, ERNAKULAM.
3C.K. RAHIM,
AGED 41 YEARS
S/O. KUNJUMTJHAMMED, CHAMBAKKERY HOUSE, KUNNUKKARA
P.O., KUNNUKARA, CHENGAMANAD, ERNAKULAM.
4P.R. RATHEESH,
AGED 42 YEARS
S/O. P.C. RAGHAVAN, PANIKASSERY HOUSE, KALABHAVAN ROAD,
ERNAKULAM NORTH, ERNAKULAM.
5VARGHEESE V.R.,
AGED 31 YEARS
S/O. V.M. RAPHEL, VADAKKEDATH HOUSE, VAYANASALA ROAD.
6VINCENT M.P.,
AGED 36 YEARS
S/O. VARGHEESE, MATHIRAPPILLY HOUSE, EROOR P.O.,
KANIYAMPUZHA ROAD, TRIPUNITHURA, ERNAKULAM.
7K.N. SUNIL KUMAR,
AGED 43 YEARS
S/O. NARAYANAN, THOPPUVELI HOUSE, PERUMBALAM VILLAGE,
PERUMBALAM, ALAPPUZHA
8M.R. NISSMON,
AGED 31 YEARS
S/O. ABDUL RAHSEED, MOITHEEN KAVEEDU, NETTOOR P.O.
INTUC JN., ERNAKULAM, CENTRAL, ERNAKULAM.
9MADHU C.B.,
AGED 37 YEARS
S/O. BALAN, RUGMA NIVAS, UDAYATHUM VATHILKARA,
PANANGAD, ERNAKULAM.
10BABU M.S.,
AGED 57 YEARS
S/O. SREEDHARAN, MANAYAKUZHIYIL HOUSE, VAIKAPRAYAR,

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CRL.MC No. 144 OF 2019 2

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VAIKKOM P.O., KOLLAM.

¶11

`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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CRL.MC No. 144 OF 2019 3

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AGED 50 YEARS

¶14

D/O. GOPI MENON, EZHUTHULLIL HOUSE, RAVIPURAM, KOCHI
- 16, ERNAKULAM.

¶15

24 SAUMYA DENISH, AGED 33 YEARS D/O. DENISH, ELANKUNNAPUZHA, NJARAKKAL, VYPPIN, ERNAKULAM.

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25 ASHA PETER, AGED 44 YEARS S/O. PETER, KATTUPARAMBIL HOUSE, SRM ROAD, ERNAKULAM NORTH, ERNAKULAM.

¶17

26 NISHA AJITH, AGED 34 YEARS D/O. AJITH, SANKEERTHANA, PARAYIL ROAD, ELAMAKKARA, ERNAKULAM.

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27 SUNITHA, AGED 30 YEARS S/O. PETER,MAHESH, AMUKKAL HOUSE, EDAPPALLY NORTH P.O., VALLEKKUNNAM, ERNAKULAM.

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28 USHA KUMARI, AGED 37 YEARS D/O. ANILKUMAR, UPASANA, VELIYATHUNADU, ALUVA, ERNAKULAM.

¶20

29 VINEETHA, AGED 37 YEARS D/O. K.S. MANI, GEETHABHAVAN, GODOWN ROAD, MANJUMMEL, ERNAKULAM.

¶21

30 SAUMYA C.N., AGED 33 YEARS D/O. NARAYANA C.V., CHERIYAPARAMBIL HOUSE, POIKATTUSSERY, CHENGAMANAD, ERNAKULAM.

¶22

31 BEENA JITHU, AGED 43 YEARS D/O. GEORGE, MULAYIRIKKAL HOUSE, KACHERIPADY NORTH, PARAVOOR, ERNAKULAM.

¶23

32 MANJU ALEX, AGED 43 YEARS D/O. THOMAS M.V., EARALI HOUSE, PERUMBADANNA, NORTH PARAVOOR, ERNAKULAM.

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33 C.J. ANTONY, AGED 38 YEARS S/O. C.A. JOY, CHIRAYATH HOUSE, VADUTHALA, ERNAKULAM

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34 P.R. RAMESH, AGED 40 YEARS S/O. RAJAN, THEKKETHOTTATHIL HOUSE, CMC 31, CHERTHALA, ALAPPUZHA.

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35 THAJ, AGED 36 YEARS S/O. HUSAAIN, PEECHINGAPARAMBU HOUSE, VATTEKUNNAM, EDAPPALLY P.O., ERNAKULAM.

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CRL.MC No. 144 OF 2019 4

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36O.M. ABDULLA,
AGED 55 YEARS
S/O. MUHAMMED, PUTHUKODI PARAMB HOUSE,
PONNARIMANGALAM P.O., MULAVUKAD, ERNAKULAM.
37BEENA K.S.
AGED 40 YEARS
D/O. AJIKUMAR, CHITHIRA HOUSE, ENAR PUNNAIKKAL
TEMPLE, ELAMAKKARA, ERNAKULAM.
38JOMOL M.J.,
AGED 35 YEARS
AUGUSTINE, CHAKKIYATH HOUSE, NEAR GOWREESWARA TEMPLE,
CHERAI, PALLIPPURAM VILLAGE, ERNAKULAM.
39SMITHA,
AGED 34 YEARS
D/O. SAJEEV, NEDUMPARAMBIL HOUSE, MUNAMBAM, PALLI
PORT, KUZHUPPILLY VILLAGE, ERNAKULAM.
40NIJU 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

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RESPONDENT/S:

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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.

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OTHER PRESENT:

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ADV SREEJA V -SR PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
09.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC No. 144 OF 2019 5

¶35

O R D E R

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The petitioners are the accused Nos.1 to 40,
in Crime No.2517/2016 of Ernakulam Central

¶37

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).

¶38

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

¶39

Banerji Road, Ernakulam, and they also
trespassed into the institutions of Muthoot
Group functioning in the said building and

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obstructed the functioning of the office of the
said institution. It is also alleged that such

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CRL.MC No. 144 OF 2019 6

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criminal trespass and obstruction were in

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violation of the order passed by the High Court

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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

¶45

FIR and the final report submitted by the
Police. This Crl.M.C. is filed for quashing all
further proceedings pursuant to the same.

¶46

3.Heard Sri.N. Satheesh, the learned

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counsel for the petitioners and Smt.Sreeja V.,
the learned Senior Public Prosecutor for the
State.

¶48

4.The contention put forward by the

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learned counsel for the petitioners is that the
allegations contained in Annexure-A1 and the
materials placed along with the same would not

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attract any of the offences alleged. All the

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petitioners were employees of the Muthoot group
institutions. On the date of occurrence, the

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CRL.MC No. 144 OF 2019 7

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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

¶54

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.

¶55

5.On the other hand, the learned Public

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Prosecutorwouldopposetheaforesaid

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contentions.

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heard the contentions raised from either side.

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CRL.MC No. 144 OF 2019 8

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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

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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

¶62

pointed out by the learned counsel for the
petitioners, Section 195(1)(a) Cr.PC provides

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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

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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

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CRL.MC No. 144 OF 2019 9

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Kerala wherein it was directed that no

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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,

¶68

the cognizance taken on the police report
submitted under Section 173(2) Cr.PC is not

¶69

legally sustainable. Therefore, the cognizance
taken for the said offence by the learned
Magistrate is liable to be quashed for that sole
reason.

¶70

8.Section 447 of Cr.PC is yet another

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offence alleged against the petitioners. The
said offence is alleged on the ground that the

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petitioners have trespassed into the office of
the institutions of the Muthoot Group situated
in Kurian tower. However, the crucial aspect to

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be noticed in this regard is that allegations in

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the final report concerning the same are very

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CRL.MC No. 144 OF 2019 10

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vague. Even though 40 persons were arrayed as
accused persons on the allegation that they sat

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on the tarred portion of the road in front of

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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.

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In the absence of any witnesses who were

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CRL.MC No. 144 OF 2019 11

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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

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attracted.

¶83

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

¶84

Preetha K.K. and Others v. State of Kerala and
Anr. [2016(2)KLT 482], to attract offence under

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CRL.MC No. 144 OF 2019 12

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Section 283, there should be clear and cogent

¶87

materials disclosing that obstruction was caused

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to any person in any public way. A mere
allegation alone is not sufficient. In this

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case, apart from official witnesses, none of the

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persons whom the petitioners allegedly
obstructed were cited as a witness by the
prosecution. Therefore, I am of the view that,

¶91

the materials produced along with Annexure-A1
are not sufficient to establish the offence
under Section 283 IPC.

¶92

10. The remaining offences are under

¶93

Sections 143,147 r/w. Section 149 of IPC.

¶94

Section 143 IPC deals with punishment for being

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a member of an unlawful assembly. The term

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‘unlawful assembly’ is defined under Section 141
of IPC, which reads as follows:

¶97

“141. Unlawful assembly

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An assembly of five or more persons is
designated as “unlawful assembly”, if the
common object of the persons composing that
assembly is_

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First- To overawe by criminal force, or

¶100

CRL.MC No. 144 OF 2019 13

¶101

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

¶102

Second- To resist the execution of any law,
or of any legal process; or

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Third-To commit any mischief or criminal
trespass, or other offence; or

¶104

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

¶105

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.

¶106

Explanation: An assembly which was not
unlawfulwhenitassembled,may
subsequently become an unlawful assembly.”

¶107

On careful scrutiny of the nature of the
allegations raised against the petitioners, it

¶108

can be seen that the acts allegedly committed by

¶109

the petitioners would not fall under any of the

¶110

five categories mentioned in Section 141 of IPC.

¶111

The main allegation is that the petitioners have
committed criminal trespass into and obstructed

¶112

the functioning of the institution of the
Muthoot Group. I have already found that there

¶113

CRL.MC No. 144 OF 2019 14

¶114

are no sufficient materials to substantiate the

¶115

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

¶116

follows:

¶117

“350. Criminal force:

¶118

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.”

¶119

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

¶120

CRL.MC No. 144 OF 2019 15

¶121

materials. As far as the act of raising slogans

¶122

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

¶123

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

¶124

force is not established, and the assembly of

¶125

the petitioners were not with a common object of

¶126

committing an act coming within the five
instances referred to under Section 141 IPC,

¶127

such assembly of the petitioners cannot be
treated as an unlawful. Therefore, the offence
under Section 143 of IPC would not be attracted.

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CRL.MC No. 144 OF 2019 16

¶129

11. What remains is the offence under

¶130

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

¶131

petitioners herein.

¶132

 12. The view taken by me in this regard is

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CRL.MC No. 144 OF 2019 17

¶134

fortified by various decisions rendered by this

¶135

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].

¶136

13. Thus, from all the materials placed on

¶137

record, it can be seen that none of the offences
alleged against the petitioners is attracted and
therefore, the prosecution against them on the

¶138

basis of Annexure-A1 is a clear abuse of process
of law.

¶139

In such circumstances, this Crl.M.C. is

¶140

allowed, Annexure-A1 F.I.R and final report

¶141

submitted in Crime No.2517/2016 and all further

¶142

proceedings pursuant to it, including the
proceedings in C.C.No.1235/2017 on the file of
the Judicial First Class Magistrate Court-II,

¶143

Ernakulam are hereby quashed.

¶144

 Sd/-

¶145

 ZIYAD RAHMAN A.A.
 JUDGE

¶146

pkk

¶147

CRL.MC No. 144 OF 2019 18

¶148

APPENDIX OF CRL.MC 144/2019

¶149

PETITIONER’S ANNEXURES
ANNEXURE-A1A TRUE COPY OF THE FIR AND CHARGE SHEET
FILED BY THE INVESTIGATION OFFICER BEFORE
THE JUDICIAL FIRST CLASS MAGISTRATE COURT-
II, ERNAKULAM.

C.J. Thomas, v. State of Kerala

Case brief

What is this about?

What did the court decide?

C.J. Thomas, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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