Allowed

Shahanas v. State of Kerala

Kerala HC10 Jun 2024Crl.Rev.Pet/764/2017

Case brief

AI extract

What is this about?

Accused challenged dismissal of his discharge petition for alleged sexual gestures degrading women's dignity on a public road. Holding the final report stated only legal ingredients without specific overt acts, the High Court allowed discharge under Section 239 CrPC.

What did the court decide?

Petitioner discharged under Section 239 CrPC; impugned order dismissing discharge petition set aside.

Shahanas 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 P.G. AJITHKUMAR

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MONDAY, THE 10^TH DAY OF JUNE 2024 / 20TH JYAISHTA, 1946

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CRL.REV.PET NO. 764 OF 2017

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AGAINST THE ORDER DATED 17.06.2017 IN CMP 1159 OF 2017 IN CC NO.683 OF 2016 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS -I, MAVELIKKARA

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REVISION PETITIONER/ACCUSED:

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SHAHANAS

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AGED 19 YEARS, S/O RAJAN,SHAHANAS MANZIL, CHERUVALLOR MURI,CHERIYANADU VILLAGE, MAVELIKKARA, ALAPPUZHA.

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BY ADVS. SRI.M.V.THAMBAN SRI.ARUN BOSE SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN

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RESPONDENT/COMPAINANT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN.682031REPRESENTING THE SUB INSPECTOR OF POLICE,MAVELIKKARA POLICE STATION, ALAPPUZHA DISTRICT.

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SMT.SEENA C., PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.R.P.No.764 of 2017

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P.G. AJITHKUMAR, J.

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----------------------------------------------------------Crl.R.P.No.764 of 2017

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----------------------------------------------------------Dated this the 10^th day of June, 2024

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O R D E R

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The petitioner is the accused in C.C.No.683 of 2016 pending on the files of the Judicial Magistrate of First Class-I, Mavelikkara. He is indicted for the offence punishable under Section 119(a) of the Kerala Police Act, 2011. He filed C.M.P.No.1159 of 2017 seeking discharge. The learned Magistrate as per the order dated 17.06.2017 dismissed that petition holding that the materials furnished by the prosecution made out a grave suspicion, which is sufficient to frame a charge. It was also observed that true picture of the allegations levelled against the petitioner could come out only on recording evidence. The petitioner challenges the said order in this revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code).

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2. Heard the learned counsel for the petitioner and

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the learned Public Prosecutor.

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Crl.R.P.No.764 of 2017

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The allegation leveled against the petitioner in the final report is that at about 04:20 p.m., on 26.07.2016, he performed sexual gestures at the public road near Kochalummoodu Junction, Mavelikkara which was in the nature of degrading the dignity of women.

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The learned counsel for the petitioner would submit that with the aid of the statements of the detecting officer and a constable on printed forms the final report was filed and for that reason itself the prosecution should fail. It is further submitted that no specific overt act has been stated, so as to constitute the alleged offence. Yet another contention raised by the learned counsel is that no women has complained against the alleged act and when no women whose dignity was degraded is cited as a witness, no prosecution is legally possible against the petitioner.

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The learned Public Prosecutor would submit that it is not the requirement of law that more number of witnesses are cited to prove a fact. Considering the allegations, evidence of the Sub Inspector and the Police Constable is

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Crl.R.P.No.764 of 2017

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enough to prove the charge. When the alleged offending act was committed at a public place, not intending any particular woman, lack of citing a woman as a witness does not fail the prosecution. Accordingly, the learned Public Prosecutor would submit that the impugned order does not suffer from any infirmity.

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The suo motu report of the Sub Inspector based on which the crime was registered, is in a printed form. However, the 2 nd witness cited in the final report was given a statement which contained the assertions in terms of the allegations in the final report. It is not in a printed form. Therefore, the contention of the learned counsel for the petitioner in this regard, which is based on the law laid down by this Court in Premchand v. State of Kerala [2015 (1) KLT 32] cannot be accepted in this case.

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The allegations in the final report is that the petitioner performed sexual gestures which would degrade the dignity of a woman at a public place. What are the gestures done or shown by the petitioner has not been stated in the

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Crl.R.P.No.764 of 2017

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charge or in the statements of the witnesses. Without stating specifically about the offending acts said to have been committed by the petitioner, no trial on a charge for the offence under Section 119(a) of the Police Act could be had. What is stated in the final report and the statements of the witnesses is only the legal requirements to constitute the offence. Beyond that no overt act of the accused has been stated, without which, a proper trial can be duly undertaken. This Court in Arun v.

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State of Kerala [2019 SCC OnLine Ker 1623] held that the prosecution materials should disclose obscene or sexual gesture or act performed by the offender, which was necessary as the petitioner could not be made guessing what was the specific allegation against him. In the absence of such specific overtacts, the court quashed the first information report.

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Viewed so, the allegations levelled against the petitioner in the final report and the materials produced therewith do not make out sufficient ground for presuming that the petitioner had committed an offence punishable under Section 119(a) of the Police Act.

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Crl.R.P.No.764 of 2017

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9 . In Priyanka Mishra v State of Uttar Pradesh

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[2023 SCC OnLine SC 978] the Apex Court held that persons are to be protected against vexatious and unwarranted criminal prosecution, and from unnecessarily being put through the rigours of an eventual trial.

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The Apex Court in Vishnu Kumar Shukla v. State

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of Uttar Pradesh [2023 LiveLaw (SC) 1019] held that the protection against vexatious and unwanted prosecution and from being unnecessarily dragged through a trial by melting a criminal proceeding into oblivion in the deserving cases is a duty cast on the High Courts.

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11. Accordingly, I am of the view that the learned Magistrate went wrong in dismissing CMP No.1159 of 2017. The petitioner is entitled for a discharge. Hence, this petition is allowed. The petitioner is discharged under Section 239 of the Code.

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dxy/dkr

Shahanas v. State of Kerala

Case brief

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Shahanas v. State of Kerala

Case brief

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