Robin vs State of Kerala

K. Ramakrishnan, J.—This criminal miscellaneous case was filed by the original 3rd accused in Crime No. 109/2014 of Valiyathura police station to quash the proceedings as against him under Section 482 of the Code of Criminal Procedure (hereinafter called ''the Code'').

It is alleged in the petition that, the petitioner has been arrayed as 3rd accused in Crime No. 109/2014 of Valiyathura police station, registered alleging commission of offences under Sections 143, 147, 148, 341, 323, 324, 294(b), 427 and Section 153A read with Section 149 of the Indian Penal Code. The petitioner is working as a printing helper in Kerala Books and Publication Society, a Government of Kerala undertaking. He has been falsely implicated in the case due to the political revelry. The ingredients of offence made against the petitioner are not sufficient to attract the offence against the petitioner as well. The case was originally registered on the basis of the statement given by the de facto -complainant, alleging that, the accused have committed robbery by snatching away a silver chain worth 1,500/- and cash of 25,500/-, thereby they have committed the offence punishable under Section 395 of Indian Penal Code. During investigation, it was revealed that, such an offence has not been committed, and that section was deleted and Section 143, 147, 148, 323, 324, 294(b), 427, 153A read with Section 149 of the Indian Penal Code were added and 15 accused persons were implicated in the case. In fact, even though the de facto complainant had no such case, a new case has been foisted by the investigating officer, so as to wrongly implicate the petitioner in the case. Originally one Manoj was shown as 3rd accused and subsequently the present petitioner was added as 6th accused as Robin @ Manoj and it was a case of mistaken identity alone. Further the ingredients of Section 153A of Indian Penal code have not been made out as well. So proceeding with the case as against the petitioner is nothing but an abuse of process of court. So he has no other remedy, except to approach this court, seeking the following reliefs:

i. Quash Annexure-A1 FIR and all further proceedings in Crime No. 109/2014 of Valiyathura police station as far it stands against the petitioner;

ii. Stay all further proceedings in Crime No. 109/2014 of Valiyathura police station, pending consideration and disposal of the present petition;

iii. Pass such other orders as may be deemed fit, necessary and just in the peculiar facts and circumstances of this case.

The 3rd respondent/investigating officer filed a statement contending as follows:

"As per the first information statement given by the de facto -complainant/2nd respondent, originally Annexure-A first information report was registered as Crime No. 109/2013 under Section 395 of the Indian Penal Code, against six named persons, showing the petitioner as 3rd accused describing him as Manoj. The allegation was that on 27.01.2014, the accused persons assembled near Valiyathura St. Xavier''s Junction and committed robbery of silver chain and money from the complainant, after inflicting injuries on him and thereby they have committed the above said offence. The statement was recorded by the Assistant Sub Inspector of Police, Shri. Prasad of Valiyathura police station. The 2nd respondent was admitted in general hospital Thiruvananthapuram. Since grave offence has been committed, the case diary file was sent to Inspector of Police, Poonthura, along with an express report for further investigation and consequently the Inspector of Police, Poonthura, conducted investigation in the matter. During investigation, it was revealed that, offence under Section 395 of the Indian Penal Code was not committed and offences under Section 143, 147, 148, 149, 341, 323, 324, 294(b), 427 and Section 153A of the Indian Penal Code were committed. So the penal Sections were altered by incorporating the above said offences and deleting the earlier offence under Section 395 of the Indian Penal Code and it is also revealed that, nearly 15 persons were involved in the incident and so the number of accused persons was increased to 15 and a report to that effect was filed. The accused Nos. 1 to 5 were arrested and they were remanded to custody. When they were produced before the Chief Judicial Magistrate Court, Thiruvananthapuram, by the learned magistrate remanded them to custody and after some days, they were released on bail. The background of the incident was that, when some cultural programme was going on under the auspicious of St. Xavier''s Arts and Sports Club, there was some incident happened between the christian community people of that locality and the de facto -complainant and his friends, who belong to the muslim community intervened and at that time with a view to create hatredness among the two community people, the accused persons attacked the de facto -complainant by asking "ninakku karyam ariyanamoda metha thayoli" and it was on that basis, some communal riot in that area happened and so Section 153A of the Indian Penal Code was added. Further there was some incidents happened in continuation of this incident between the christian community people and muslim community people and series of crimes were registered against the people of both communities. So the allegation that no offence committed as alleged is not correct. The allegation that, the petitioner has not involved in the crime is also not correct. So he prayed for dismissal of the application.

2nd respondent appeared and filed an affidavit stating that, while he was coming back along with his friend on the fateful night and some group of people kicked him, who were watching the programme organized by St. Xavier''s Arts Club, as part of their annual ceremony. Six persons by name Jinu, Sajan, Rajesh S/o. Mullan Vijayan, Saji and Stephen attacked him and they abused him and in the mille, he lost his silver chain and cash of 25,500/-, which later recovered from the scene of occurrence itself. The present petitioner has not involved and he had not given his name as well. He was wrongly added as 3rd accused in the case and he has no grievance against the petitioner and he is not opposing the petition for quashing the proceedings as well.

Heard both sides.

The learned counsel for the petitioner submitted, originally the case was registered for the offence under Section 395 of the Indian Penal Code, on the basis of the statement given by the 2nd respondent as de facto -complainant, against six named persons and at that time there was no allegation that, any abusive words were spoken by any of the accused persons creating ill-will or hatredness between two communities, so as to affect the harmony between those community people. It was later Section 395 of Indian Penal Code was deleted and offences under Section 143, 147, 148, 341, 323, 324, 427, 153A read with Section 149 of the Indian Penal were added and 15 accused persons were incorporated. Though one Manoj was originally shown as 3rd accused, subsequently, that Manoj was identified to be the petitioner and he was arrayed as 6th accused by showing his name as Robin @ Manoj and he was arrested and later released on bail. Further now, the de facto-complainant had filed an affidavit stating that, he has not mentioned the name of the present petitioner and the present petitioner was not the person and that can be taken as an admission on the part of the de facto -complainant regarding the innocence of the petitioner and the proceedings can be quashed against him. Further, there is no allegations to attract Section 153A of the Indian Penal code have been made out, as the first information statement does not contain any such allegation. So he prayed for allowing the application.

The learned counsel for the 2nd respondent/defacto-complainant submitted that, he had no grievance against the petitioner and according to the de facto -complainant the present petitioner has not involved and he has not given the name of the petitioner to the police and he had filed an affidavit stating that fact also.

The application was opposed by the Government Pleader on the ground that, it is true that, earlier the case was registered alleging commission of the offence under Section 395 of the Indian Penal Code alone, but later during investigation it was revealed that, the real incident was something else and so on the basis of the evidence collected, the offence was changed and offences including Section 153A of the Indian Penal Code were added. It was also revealed that, it was intended to be a communal riot between two community people and pursuant to this incident, certain other communal riots were committed by people belonging to both the communities and several crimes were registered in respect of the same of the same police station. So this incident had resulted in communal hatredness between two community people and so Section 153A of the Indian Penal Code has been added. So under the circumstances, it is not a fit case to quash the proceedings at this stage.

It is an admitted fact that on the basis of the statement given by the 2nd respondent, originally Annexure-A1 first information report was registered against six named persons, namely, Jinu, Sajan, Manoj, Rajesh S/o. Mullan Vijayan, Saji and Stephen, alleging offences under Section 395 of the Indian Penal Code as Crime No. 109/2014 of Valiyathura police station. The statement was recorded by the Assistant Sub Inspector of police one Prasad on 27.01.2014 from General Hospital, Thiruvananthapuram, where the 2nd respondent was admitted after the incident. As per the first information statement, it was mentioned by the 2nd respondent that, on 27.01.2014 at 12.15 a.m., while he along with Shins and brother Anuz were going to their house after closing their shop with an amount of 25,500/- in his pocket and when they reached near St. Xavier''s church, near the junction, they saw some persons standing there and when he reached that place, Jinu pushed him and when he fell down and asked why he had pushed him, he shouted at him and said "pidichu thalliyal nee enthu cheyyumeda thallayoli" and others also have beaten him with hands and brick and took away the amount of 25,500/- from his pocket and also a silver chain worth 1,500/- and they left the place. After registering the first information report, it is seen that the investigation was conducted by the Inspector of Police Poonthura, and while he questioned the witnesses, including the de facto -complainant, it was revealed that, the real incident was not happened as stated in the first information statement. But it was something else and 15 persons involved in the incident and in fact there was some quarrel going on between the accused persons, who belongs to christian community and on seeing them, when the de facto -complainant intervened and enquired about the same, the first accused asked him "metha thayolikalkku evide entha karyam" and thereafter beaten him and when other two persons intervened and they were also beaten by them and later it was revealed that the accused persons belong to christian community and the de facto -complainant and his friends belong to muslim community and with a view to create hatrednesses between two community people that the accused had committed this act. In continuation of this incident, some other incidents also happened in the same locality between these two community people and several crimes were registered in respect of the same, which is seen from the statement filed by the investigating officer. So it is revealed in the investigation that, in fact the offence under Section 395 of the Indian Penal Code was not committed as the amount or chain alleged to have been taken were recovered from the place of occurrence itself after sometime and it was not taken by the assailants and so Section 395 of the Indian Penal Code was deleted and Section 143, 147, 148, 341, 324, 323, 427, 153A read with Section 149 of the Indian Penal Code were incorporated and 15 accused persons were arrayed as accused in this case. Subsequently the investigation was handed over to the Sub Inspector of Police himself and he was conducting the investigation now. It is true that, earlier one Manjoj was shown as 3rd accused and later his rank was shown as 6th accused, stating his name as Robin @ Manoj, who is the petitioner herein and he was later arrested and remanded to custody and then released on bail. Some of the witnesses questioned also stated the same thing and they have disclosed the name of the present petitioner, as the person involved in the incident along with others.

Section 153A of the Indian Penal Code reads as follows:

[153A. Promoting enmity between different groups on grounds of religion, race, place or birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.-(1) Whoever-shall be punished with imprisonment which may extend to three years, or with fine, or with both.

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 racial, language or regional groups or castes or communities, or

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]

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 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,]

Offence committed in place of worship, etc.-

(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]

The counsel for the petitioner relied on the decision reported in (2000 KHC 2503) Mohd. Khalid Hussain v. State, in which it was mentioned that, in order to attract Section 153A of Indian Penal Code, the actual words spoken to by the person must be stated and that must be spoken or some act has been done with an intention to cause hatredness or ill-will between two different religious, racial, language or regional groups, caste or community. In the absence of making such word, no offence under Section 153A of the Indian Penal Code is attracted. That was a case where a suo-moto case was registered by the police officer, who was not an eye witness to the incident, on the basis of certain informations received, in which the actual words spoken by any of the accused were not mentioned, which was said to be the cause of the incident happened between two communities. Further, none of the witnesses also stated about the same and it was under those circumstances, the Andhra Pradesh High Court has quashed the proceedings as the ingredients of Section 153A has not been made out.

In the decision reported in Balwant Singh and another Vs. State of Punjab, , the Hon''ble Supreme court has held that, mere raise of certain slogans by two individuals a couple of times without any other overt act and without any intention to create disorder incite people to violence and people in general were not affected by this slogan and they carried on with their normal activities, in such circumstances, offence under Section 124A or 153A of Indian Penal Code is not attracted.

Further in the decision reported in Gopal Vinayak Godse Vs. The Union of India and Others, , the Bombay High Court has considered the scope of 153A of Indian Penal Code and observed that, "while determining sustainability of a charge under Section 153A that, offending passages in a book read in the context of the book as a whole, promote feeling of enmity or hatredness between classes of India", it is important to remember that:

Under Section 153A, it is not necessary to prove that as a result of the objectionable matter, enmity or hatred was in fact caused between the different classes.

Intention to promote enmity or hatred, apart from what appears from the writing itself, is not necessary ingredient of the offence. It is enough to show that the language of the writing is of nature calculated to promote feelings of enmity or hatred for a person must be presumed to intend the natural consequence of his act.

The matter charged as being within the mischief of Section 153A must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.

For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time.

If the writing is calculated to promote feelings of enmity or hatred, it is no offence to a charge under Section 153A that the writing contains a truthful account of past events or is otherwise supported by good authority. If a writer is disloyal to history, it might be easier to prove that history was distorted in order to achieve a particular end e.g. to promote feelings of enmity or hatred between different classes or communities. But adherence to the strict path of history is not by itself a complete defence to a charge under Section 153A. In fact, greater the truth, greater the impact of the writing on the minds of its readers, if the writing is otherwise calculated to produce mischief.

Same view has been reiterated in the decision reported in Babu Rao Patel Vs. State (Delhi Administration), , wherein it has been held that Section 153A(i)(a) is not permissible on the grounds of religion only, but takes in promotion of such feelings on other grounds as well, such as race, place of birth, residence, language, caste or community. The same view has been reiterated in the decision reported in Satya Ranjan Bakshi Vs. Emperor, . In that decision, it has been held that, in the words used naturally, clearly and indisputably is the tendency to incite one community against another, then the intention to do it should be inferred.

So it is clear from the above decisions that, it is not the consequence of the act or words spoken by the accused, which is relevant, but what other people will think about words spoken and the likelihood of hatredness or ill-feeling that may emerge in the minds of other people is relevant for the purpose of considering the fact, whether the ingredients of Section 153A of the Indian Penal Code has been made out or not. In this case, it is clear from the materials collected by the investigating officer by questioning CWs 1 to 3, subsequently will go to show that, the incident had not happened as mentioned in the first information statement given by the de facto -complainant, but the real thing happened in a different way and accordingly correct penal provisions have been incorporated.

Further It is seen from the statement filed by the investigating officer that, on account of this incident, there was an ill-feeling created among the people of two communities namely, christian community and muslim community of that locality and series of fights between them have occurred and cases have been registered. That also will go to show the act of the accused had incited or created an ill-feeling, which affected the harmony between two community people. So there is a prima-facie evidence to show that, the offence under Section 153A has been attracted, but the evidence collected is sufficient for conviction or not is a matter to be evaluated by the trial judge and not while considering the proceedings under Section 482 of the Code of Criminal Procedure.

Regarding the involvement of the petitioner also, the witnesses questioned by the investigating officer have stated about the involvement of the petitioner along with other persons who formed the unlawful assembly for the purpose of committing the offences. Merely because the de facto -complainant had filed an affidavit before this court alone is not sufficient at this stage to come to the conclusion that the petitioner has been falsely implicated in the case as the investigation is still in progress and it is easy to get the affidavit of the de facto -complainant, if he is prevailed upon by the accused to give such a statement in order to escape from the consequences, which this court cannot consider in preference to the evidence collected by the investigating officer, without putting him for cross examination, to find out the real truth behind the statement given by him, which also has to be done by the trial court and not by this court, while considering the question of quashing the case, invoking the power under Section 482 of the Code of Criminal Procedure.

So under the circumstances, and also on the basis of the materials available on the case diary file collected by the investigating officer by questioning the witnesses, this court feels that, it is not a fit case to invoke Section 482 of the ''Code'' to quash the proceedings as against the petitioner, invoking the power under Section 482 of the Code. So the petitioner is not entitled to get the relief claimed at this stage and the petition is liable to be dismissed and I do so.

In the result, the petition is dismissed.