Shafeek Rahman Vs State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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MONDAY, THE 26TH DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944

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CRL.MC NO. 2654 OF 2022

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[ AGAINST LP 249/2018 (C.C.NO.437/2016)OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-1,VADAKARA ARISING OUT OF CRIME NO.1517/2013 OF
VADAKARA POLICE STATION, KOZHIKODE ]

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PETITIONER/ACCUSED:

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SHAFEEK RAHMAN,AGED 26 YEARS
S/O ABDUL KAREEM,
ADUKKOTH HOUSE, THEKKE ACHAN KANDIYIL
THAROPOYIL P.O,PONMERI VIA, AYANCHERI,
KOZHIKODE DISTRICT, PIN - 673541
BY ADVS.
M.MUHAMMED SHAFI
T.RASINI

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RESPONDENTS/STATE AND DEFACTO COMPLAINANT:

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1STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
PIN - 682031
2VENU K.,AGED 51 YEARS,S/O PADMANABHAN NAIR,
MEETHALE VAYALIL HOUSE,
NADUVATHUR P.O, KOYILANDY,
KOZHIKODE DISTRICT, PIN - 673620
3PRAMOD O.K,AGED 52 YEARS,S/O BALAKRISHNAN NAIR,
OZHAKKIRIKANDI HOUSE,
THIRUVALLUR P.O, VADAKARA,
KOZHIKODE DISTRICT, PIN - 673541
4THE TRUSTEE BOARD COMMITTEE
MAHA SIVA TEMPLE, THIRUVALLOOR P.O
[IMPLEADED AS PER ORDER DATED 24.8.2022 IN CRL.M.A.
NO.2/2022]
FOR R1 BY ADV. VIPIN NARAYAN, PUBLIC PROSECUTOR
FOR R2 AND R3 BY MUHAMMED GAZALI VALIYAKATH MOOTHEDATH

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
24.08.2022, THE COURT ON 26.09.2022 PASSED THE FOLLOWING:

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CRL.MC No.2654 of 2022 2

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O R D E R

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The petitioner is the sole accused in Crime

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No.1517/2013whichisnowpendingas
L.P.No.249/2018 before the Judicial First Class

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Magistrate Court, Vadakara. The aforesaid case was
registered for the offences punishable under
Sections 277 and 153A of the Indian Penal Code
(IPC).

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2.The prosecution case is that, on 17.10.2013
at 16.00 hours, the petitioner along with the 2nd
accused in furtherance of their common intention
to create communal enmity among Hindus and Muslims
in the locality, deposited slaughter waste in a

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pond belonging to the Thiruvallur Maha Siva
Temple. Annexure-A1 is the final report submitted
by the Police. This Crl.M.C. is filed for quashing

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CRL.MC No.2654 of 2022 3

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all further proceedings pursuant thereto.

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3.Heard Sri. Muhammed Shafi, the learned

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counsel for the petitioner, Sri. Vipin Narayan,
the learned Public Prosecutor for the State and

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Sri. Muhammed Gazali Valiyakath Moothedath, the

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learned counsel for respondents 2 and 3.

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4.The prayer for quashing the proceedings is

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sought on the ground that, the dispute between the

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parties is settled. The 2nd respondent is the

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defacto complainant and the 3rd respondent is the
Chairman of the Trustee Board of the Thiruvallur

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Maha Siva temple. Both the said respondents have

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sworn affidavits as Annexures A2 and A3,

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confirming that a settlement is arrived between
the parties and they have no objection in quashing

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the proceedings against the petitioner. In

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addition to the above, Annexure-A4 affidavit was

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also sworn by the 3rd respondent, wherein it is

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CRL.MC No.2654 of 2022 4

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affirmed by the 3rd respondent that, the Trustee

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Board of the temple had entrusted him to convey
the matter of settlement on behalf of the Trustee

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Board. It is also specifically mentioned in the
aforesaid affidavit that, the incident happened
due to an inadvertent mistake and ignorance on the
part of the accused about the locality. The

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relevant portion of Annexure-A4 affidavit sworn by
the 3rd respondent is as follows:

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“2.Myself as the 3rd respondent had already
sworn to an affidavit in the above case on
16.04.2022 deposing about the settlement of the
above case considering the various aspects
involved therein. The Trustee Board of the Temple
had entrusted me to convey the matter of
settlement on behalf of the Trust Board also since
the Trustee Board was not a party earlier in this
proceedings.

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3.It is humbly submitted that in fact the
incident was happened due to an inadvertent
mistake and ignorance about the locality. It is
later realized by the Trustee Board that there was
no intention on the part of the petitioner to
create communal enmity or unrest in the locality.
There were no instances of any communal disharmony
happened in the locality prior to the incident of
thereafter.

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4.Further, it was reliably understood that the
petitioner have no criminal antecedents.
Thereafter the entire dispute has been settled

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CRL.MC No.2654 of 2022 5

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between the parties through mediation. In the
above circumstances the Temple Trustee Board have
no surviving grievance against the petitioner
herein. The Trustee Board Committee have no
objection in quashing the proceedings against the
petitioner in the above case. It is further
submitted that the respondents are ready and
willing to depose about the settlement before any
Court or law or any other lawful authority.”

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Section 153A of IPC, which reads as follows:

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“153A. Promoting enmity between different groups
on ground of religion, race, place of birth,
residence, language, etc., and doing acts
prejudicial to maintenance of harmony.--
(1) Whoever--

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(a) by words, either spoken or written, or by
signs or by visible representations or otherwise,
promotes or attempts to promote, on grounds of
religion, race, place of birth, residence,
language, caste or community or any other ground
whatsoever, disharmony or feelings of enmity,
hatred or ill-will between different religious,
racials, language or regional groups or castes or
communities, or

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(b) commits any act which is prejudicial to the
maintenance of harmony between different
religious, racial, language or regional groups or
castes or communities, and which disturbs or is
likely to disturb the public tranquility, or

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(c) organizes any exercise, movement, drill or
other similar activity intending that the
participants in such activity shall use or be
trained to use criminal force or violence or
knowing it to be likely that the participants in
such activity will use or be trained to use
criminal force or violence, or participates in

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CRL.MC No.2654 of 2022 6

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such activity intending to use or be trained to
use criminal force or violence or knowing it to be
likely that the participants in such activity will
use or be trained to use criminal force or
violence, against any religious, racial, language
or regional group or caste or community and such
activity for any reason whatsoever causes or is
likely to cause fear or alarm or a feeling of
insecurity amongst members of such religious,
racial, language or regional group or caste or
community,]

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shall be punished with imprisonment which may
extend to three years, or with fine, or with
both.”

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Considering the nature of the offence, under
normal circumstances, an offence under Section
153A of IPC cannot be quashed based on settlement
between the parties. This is because, under no
circumstances the aforesaid offence can be treated

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as an offence committed in connection with a
private dispute. It contemplates an offence which
is committed against society as a whole.
Therefore, I am of the view that it cannot be

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settled merely on the basis of settlement. In such
circumstances, the crucial question that arises

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here is whether this is a fit case in which powers

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CRL.MC No.2654 of 2022 7

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of this Court under Section 482 Cr.PC can be
invoked.

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6.The contention of the learned counsel for

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the petitioner is that the petitioner deposited
slaughter waste in the place mentioned above
without knowing that it was a pond belonging to
the temple. The learned counsel brought my
attention to the contents of scene mahazar, which
forms part of Annexure-A1 final report. The
relevant portion of the same is extracted

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hereunder:

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"�� 

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2013 �� 18- Ɔ o �� 11:00 �� PS Crime No. 1517/13 U/S 277, 153A r/w 34 IPC ��

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�� Dr. �� � � � �� .

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�� 30 �� 2 �� 25 ��

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CRL.MC No.2654 of 2022 8

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�� . �� , �� , �� . �� . �� 70 �� , �� 150 �� . �� 30 �� , �� 40 �� , �� 50 �� 75 �� . ��

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1 �� , �� 34/13 ,S/o �� , �� , 9496900641

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2 �� , �� 19/13 ,S/o �� , 9744027671

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Submitted By Jeevan George Sub Inspector Vatakara.”

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I have carefully gone through the contents of the

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same. It is seen therefrom that, the pond was in a

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CRL.MC No.2654 of 2022 9 dilapidated condition and covered with shrubs. According to the petitioner, while disposing of the waste in a sack in that place, he was not aware that it was a pond. It was done under the impression that it was an abandoned area. When carefully scrutinizing the description of the aforesaid area as contained in the scene mahazar, the possibility of such an impression being created in the mind of the petitioner cannot be ruled out. One of the crucial ingredients to attract the offence under Section 153A IPC is to

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do something as contemplated in the said provision
to promote enmity between different groups on the

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grounds of religion, race, place of birth,
residence, language etc. In this case, as rightly
pointed out by the learned counsel for the
petitioner that, the pond was in a dilapidated
condition covered with shrubs and there was no

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indication that it was a pond belonging to the

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CRL.MC No.2654 of 2022 10

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temple. The temple is situated a little far away

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from the pond. Therefore, it cannot be assumed
that the petitioner had done the said act with the

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knowledge that it was a pond belonging to the

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temple and with the intention to promote enmity

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between the two religions. The 2ndand 3rd

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respondents, in their affidavits have clearly

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mentioned that the petitioner had committed the
act of disposing of the waste in that area without

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knowing that it was a pond belonging to the
temple. They realized that the petitioner had no
intention to promote enmity between the religions.

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Further, no law and order situation had arisen
consequent to the incident, as the temple authorities,
as well as the other believers, realized that, it was
only a mistake committed by the petitioner without
knowing that it was a temple’s pond.

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7.Moreover, at the time of the commission of

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the offence, the petitioner was just aged 18 years

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CRL.MC No.2654 of 2022 11

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and was a plus-two student. In connection with the

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incident, he was arrested by the Police and was
granted bail after 12 days of incarceration.

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8.After taking into account all the relevant
aspects mentioned above, I am of the view that,

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since it is evident that the petitioner disposed
of the waste in the pond without the knowledge
that it was a pond belonging to the temple and

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without any intention to cause any communal
disharmony, the offence under Section 153A would
not get attracted. Moreover, respondents 2 and 3,

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at whose instance the prosecution was launched,
have also clearly stated before the court in the
form of an affidavit that the petitioner has done

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the aforesaid act without any dishonest intention

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to cause any disharmony among the people.

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Therefore, even if the petitioner was put to trial
for the offence under Section 153A, the chances of

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successful prosecution in this case are very

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CRL.MC No.2654 of 2022 12

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bleak. Moreover, the petitioner is a young person

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with a long life ahead. Being accused of an
offence of this nature would cause serious
prejudice to him in his career and life. Since
I am convinced that the offence under Section 153A

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is not attracted as against the petitioner herein
based on the materials placed on record, it is

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only proper that the prosecution against the
petitioner for the offence under Section 153A be
quashed. This view is taken by me considering the
peculiar nature of the case and also taking note
of the specific assertions made by 2nd and 3rd

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respondents through the affidavits submitted
before this Court. The learned counsel appearing

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for the 2nd and 3rd respondents also confirmed the
aforesaid assertions in the Court as well.

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9.The remaining offence is under Section 277
of IPC. The aforesaid offence pertains to an act

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by which a person voluntarily corrupts or fouls

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CRL.MC No.2654 of 2022 13 the water of any public spring or reservoir so as to render it less fit for the purpose for which it

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is ordinarily used. As far as the aforesaid
offence is concerned, there are materials
indicating the commission of the crime, prima
facie. Even according to the petitioner, he had
deposited the waste as alleged by the prosecution.
Therefore, there are materials indicating the
commission of an offence under Section 277 of IPC.
The settlement between the parties cannot be
treated as a ground for quashing the prosecution
under Section 277 of IPC. Therefore, even while
I am inclined to interfere in the prosecution
against the petitioner for the offence under

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Section 153A, I am of the view that, the
prosecution under Section 277 of IPC cannot be

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quashed and the prosecution for the said offence
can be continued.

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In the result, this Crl.M.C. is disposed of

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CRL.MC No.2654 of 2022 14 quashing Annexure-A1 final report submitted in Crime No.1517/2013 of Vadakara Police Station, Kozhikode and all further proceedings thereon as regards the offence under Section 153A of IPC. The prosecution can be continued for the offence punishable under Section 277 IPC. It is revealed from the records that, the case is included in the Long Pending Register as LP No.249/2018 and therefore, the petitioner is directed to surrender before the learned Magistrate to face trial for the offence under Section 277 of IPC. It is

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ordered that he shall surrender before the trial
court within a period of one month from the date
of receipt of a copy of the judgment. Upon such

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surrender, it shall be open for the petitioner to
either plead guilty or contest the matter. It is
further ordered that, in case of such surrender,
his prayer for pleading guilty or an application
for bail, if any submitted, as the case may be,

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CRL.MC No.2654 of 2022 15

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shall be considered by the learned Magistrate on

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the date of surrender itself.

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 Sd/-

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 ZIYAD RAHMAN A.A.
JUDGE

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pkk

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CRL.MC No.2654 of 2022 16

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APPENDIX OF CRL.MC 2654/2022

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PETITIONER’S ANNEXURES:

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ANNEXURE A1FINAL REPORT SUBMITTED BY THE POLICE IN CRIME
NO.1517/2013 OF VADAKARA POLICE STATION,
KOZHIKODE

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ANNEXURE A2THE AFFIDAVIT SWORN BY THE 2ND RESPONDENT
DATED 16-04-2022
ANNEXURE A3THE AFFIDAVIT SWORN BY THE 3RD RESPONDENT
DATED 16.4.2022
ANNEXURE A4THE AFFIDAVIT SWORN BY THE 3RD RESPONDENT ON
BEHALF OF THE 4TH RESPONDENT DATED 8-8-2022

Shafeek Rahman v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shafeek Rahman 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

Statutes considered

Parties & counsel

Coram

Case details

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