Quashed

Ami T.R. v. State of Kerala

Kerala HC9 Apr 2024Crl.MC/3575/2021

Case brief

AI extract

What is this about?

A petitioner prosecuted for distributing protest notices against custodial deaths sought quashing of trial under Section 153 and allied IPC provisions. The court held a call to peaceful protest is not an illegal or provocative act, found ingredients of the offences absent, and quashed all proceedings.

What did the court decide?

All proceedings against the petitioner in C.C.No.1299/2020 were quashed.

Ami T.R. Vs State of Kerala — Quashing and FIR | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 9TH DAY OF APRIL 2024 / 20TH CHAITHRA, 1946

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CRL.MC NO. 3575 OF 2021

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CRIME NO.410/2018 OF VARAPPUZHA POLICE STATION, ERNAKULAM
IN CC NO.1299 OF 2020 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT- III, NORTH PARAVUR

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PETITIONER/6th ACCUSED:

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AMI T.R.
AGED 26 YEARS
D/O.ROOPASH T.R.,
SHINA MANZIL, VALAPAD,
THRISSUR DISTRICT - 680 567.

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BY ADV C.P.PEETHAMBARAN

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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BY ADV.
T.R. RANJITH

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
09.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.No.3575 of 2021

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BECHU KURIAN THOMAS, J.

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Crl.M.C.No.3575 of 2021

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Dated this the 9^th day of April, 2024

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ORDER

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Petitioner challenges the proceedings in C.C.No.1299/2020 on the files of the Judicial First Class Magistrate Court-III, North Paravoor, arising out of Crime No.410/2018 of Varapuzha Police Station.

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According to the prosecution, the accused had, on 10.06.2018, formed themselves into an unlawful assembly in the name of ‘Vidyarthi Yuvajana Koottayma’ and distributed notices and pasted posters wantonly, with the intention to provoke and cause riot against the police and the Government of Kerala, and thereby committed the offences under Sections 153, 143 and 147 r/w Section 149 of the Indian Penal Code, 1860.

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Sri. C.P.Peethambaran, learned counsel for the petitioner, contended that even if the allegations in the final report are admitted, the same would not constitute any offence under Section 153 IPC or the other offences alleged. It was further submitted that the mere distribution of posters, criticising the police force or the Government cannot constitute the offence alleged. It was submitted that the posters that the petitioner allegedly distributed did not indicate anything that would cause

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Crl.M.C.No.3575 of 2021

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provocation of the offence of rioting, and therefore, the proceedings are instituted for extraneous reasons and without any basis, warranting interference by this Court under Section 482 of the Cr.P.C.

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Sri. T.R.Renjith, the learned Public Prosecutor, on the other hand, contended that a reading of Annexure A3 notice, especially the second last paragraph of the said notice, indicates that there was a call for rioting by inviting the public to step onto the road and react violently. It was further submitted that the jurisdiction under Section 482 Cr.P.C cannot be invoked in a case of this nature.

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The Investigating Officer has also filed a Statement pointing out that the petitioner is the daughter of a Maoist leader, and that the notice was circulated to provoke the people with the intention of causing riots and organizing them against the Government of Kerala. It was also submitted that if the FIR is quashed, it will convey a negative message to the law-abiding persons.

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I have considered the rival contentions and have also perused the Case Diary made available to the court by the learned Public Prosecutor.

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The right to freedom of speech and expression inheres in every citizen of the country as per Article 19(1)(a) of the Constitution of India. The said right can be subject only to reasonable restrictions under Article 19(2) of the Constitution of India. Freedom of speech is the bulwark of every democracy. The freedom of speech guaranteed under Article

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Crl.M.C.No.3575 of 2021

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199(1)(a) is essential for the proper functioning of our democratic governance as well. Criticizing the Government or the police force of a State cannot be said to be an illegal act.

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A perusal of Annexure-A3 indicates that the notice points out to the custodial deaths that are allegedly happening after the present Government took over and further alleges that there are criminals inside the police force. In the second last paragraph of the said notice, it is mentioned that the citizens must protest in the exercise of their rights under the Constitution, and if the public does not react, the next person to be killed would be another member of the public and to retaliate against the atrocities committed by the police, the public must step onto the streets. It was further stated that a campaign is proposed to be commenced from June 10 and cooperation and participation of everyone was solicited.

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The prosecution alleges the aforesaid notice to be a call for rioting as contemplated under Section 153 IPC. However, the aforesaid statutory provision requires the following ingredients to be satisfied, as observed by this Court in Sanjeev S. v. State of Kerala , [(2023) 2 KLT 767],

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(i) The accused did an illegal act.

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(ii) The act was done malignantly or wantonly.

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(iii) The act was done with the intention to provoke or knowing that it will provoke a person to cause the offence of rioting.

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Crl.M.C.No.3575 of 2021

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Thus, a person must malignantly or wantonly do an act which is illegal, and the said illegal act must provoke a person to commit the offence of rioting or would cause the commission of the offence of rioting. The provision further requires that the act alleged to be done must be illegal. The term illegal is defined in Section 43 of IPC to mean everything which is an offence or which is prohibited by law, or which furnishes a ground for a civil action. In the instant case, there is nothing to indicate from the final report about any illegal act having been committed by the petitioner. Distribution of a pamphlet or a notice or pasting a poster as a means of criticism or as a means of protest do come within the protective umbrella of Article 19(1)(a) of the Constitution of India, as long as it does not infringe upon any law that imposes restrictions on the basis of the sovereignty and integrity of the country, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

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A mere call to participate in a protest campaign or to protest against certain measures or acts allegedly causing prejudice to a person cannot amount to an illegal act or an act intended to provoke a person to cause or commit rioting. The language of Section 153 of IPC cannot be stretched or extended to cover every innocent call to protest. This is evident from the terms malignantly or wantonly used in the statutory provision.

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Crl.M.C.No.3575 of 2021

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As observed by this Court in Sanjeev’s case (supra), the two expressions 'malignantly' or 'wantonly' used in S.153 IPC indicate that there must be a higher degree of malice or evil that is projected or evident in the act alleged. In the instant case even such a higher degree of evil is evident from the posters or notices.

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. 13. A reading of the notice and the final report indicate that the petitioner is alleged to have objected against the two years of governance of the State Government and calls upon people not to be inhibited in protesting. The said statement, even if assumed to have been published or distributed by the petitioner, the same cannot amount to the offences alleged.

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Hence the ingredients of the offence are absent from the allegations in the final report and the proceeding against the petitioner in C.C.No.1299/2020 on the files of the Judicial First Class Magistrate Court-III, North Paravoor, is an abuse of the process of the court.

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Accordingly, all proceedings against the petitioner in

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C.C.No.1299/2020 on the files of the Judicial First Class Magistrate Court-III, North Paravoor, shall stand quashed.

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Sd/-

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BECHU KURIAN THOMAS JUDGE

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Jka/09.04.24.

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Crl.M.C.No.3575 of 2021

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APPENDIX OF CRL.MC 3575/2021

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PETITIONER’S ANNEXURES

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Annexure A1CERTIFIED COPY OF THE FIR DATED 10/6/2018
IN CRIME NO.410/2018 OF VARAPUZHA POLICE
STATION.
Annexure A2TRUE COPY OF THE JUDGMENT DATED 9/7/2018
IN WP(C) NO.14402/2018.
Annexure A3TRUE COPY OF THE NOTICE DISTRIBUTED IN
CONNECTION WITH THE DEATH OF SREEJITH.
Annexure A4CERTIFIED COPY OF THE FINAL REPORT DATED
30/7/2019 IN C.C.NO.1299/2020 PENDING THE
FILES OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT III, NORTH PARAVOOR.

Ami T.R. v. State of Kerala

Case brief

What is this about?

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Ami T.R. v. State of Kerala

Case brief

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