ORDER : In C.C. No.203 of 2012 Additional Chief Judicial Magistrate, Thiruvananthapuram ordered issuance of summons to the petitioners under Section 204 Cr.P.C. which is challenged in these petitions. The criminal law was set in motion by the second respondent, who filed Annexure-I complaint before the learned Magistrate alleging commission of the offences under Sections 86(1) and 86(2) of the Kerala Prisons And Correctional Services (Management) Act, 2010 (hereinafter referred to as 'the Act'). Crl.M.C. No.1236 of 2018 2. Petitioner is the first accused. In one case the Supreme Court convicted him, who is a former Minister, of an offence under the Prevention of Corruption Act and sentenced him to undergo imprisonment for a certain term. He was lodged in Central Prison, Poojappura (Thiruvananthapuram). From there he was shifted to a private hospital at Thiruvananthapuram for treatment of certain illness on 5.8.2011. It is stated in the complaint that on 29.11.2011 at the hospital a reporter of a television channel called him on his mobile phone; the second accused handed over the mobile phone to him, who talked to the reporter on the phone; the jail authorities received complaints in connection with this incident; they took action against the petitioner only for the offence under Section 81 of the Act though the facts reveal commission of the offences under Sections 86(1) and 86(2) of the Act also. 3. The learned Additional Chief Judicial Magistrate took cognizance of the offences mentioned in the complaint and conducted enquiry and issued process to 204 persons though there are only two named accused in the complaint, the first of whom being the petitioner. In this Crl.M.C. the order taking cognizance is challenged on the following grounds : (i) only the jail authorities can initiate proceedings against the petitioner (ii) the petitioner did not use mobile phone as alleged in the complaint, and (iii) the facts of the case do not constitute any offence. 4. Heard the learned Senior Counsel and others for the petitioners, and the learned Public Prosecutor. 5. By the impugned order the learned Additional Chief Judicial Magistrate has found that there are sufficient grounds to proceed against the 204 accused including the petitioner for the offences under Sections 86(1) and 86(2) of the Act. 6. Sub-section 3 of section 86 of the Act provides that the offences under sub-sections 1 and 2 are cognizable. 5. By the impugned order the learned Additional Chief Judicial Magistrate has found that there are sufficient grounds to proceed against the 204 accused including the petitioner for the offences under Sections 86(1) and 86(2) of the Act. 6. Sub-section 3 of section 86 of the Act provides that the offences under sub-sections 1 and 2 are cognizable. The Act does not provide that cognizance of the said offences can be taken only on the complaint of prison officers. The first ground urged in the Crl.M.C. is devoid of merit. 7. Another ground on the basis of which the impugned order is sought to be set aside is that the allegation in the complaint that the petitioner used mobile phone to talk to a media reporter is not true. The truth of this allegation, which is a question of fact, cannot be decided in this proceedings. 8. The only ground which deserves notice of the court is that the facts of the case do not reveal commission of the offence under sub-section 1 or sub-section 2 of Section 86 of the Act. 9. Section 86 of the Act runs as follows: “86. Punishment in certain cases.-(1) Whoever, in contravention of any provisions of the Act, brings or removes or attempts by any means whatever to bring or remove, into or from any prison, or supplies or attempts to supply to any prisoner outside the limits of a prison, any prohibited article, and any officer or member of staff of a prison who, contrary to any rule, knowingly suffers any such article to be brought into or removed from any prison, to be possessed by any prisoner, or to be supplied to any prisoner outside the limits of a prison, and whoever, contrary to any rule, communicates or attempts to communicate with any prisoner, and whoever abets any offence made punishable by this section, shall, on conviction before a Magistrate, be liable to imprisonment for a term not exceeding twelve months, or to fine not exceeding ten thousand rupees or with both. (2) Whoever, being a prisoner or a visitor, or a prison official, is found in possession of an electronic communication or other equipment inside the prison against the provisions of the Act or rules, or found to be manipulating, damaging or destroying any equipment, electronic or otherwise, in the prison, shall on conviction, before a Magistrate, be liable to imprisonment for a term not exceeding two years or fine not exceeding ten thousand rupees or with both. (3) The offences mentioned in sub-sections (1) and (2) above, shall be cognizable and non-bailable.” 10. Section 2(xxxiii) of the Act defines prison : “Prison means any jail or place used permanently or temporarily under the general or special order of the Government for the detention of prisoners and includes all lands and buildings appurtenant thereto”. (The rest of the definition being not relevant is omitted). 11. It is not disputed before me that the hospital where the petitioner had been lodged was a prison for the purpose of the Act because of the special order passed by the Government. 12. Section 86(1) becomes applicable in three situations. (1) When, a person, in contravention of any provisions of the Act, brings or removes, or attempts by any means whatever to bring or remove, into or from any prison, or supplies or attempts to supply to any prisoner outside the limits of a prison, any prohibited article. (2) When any officer or member of staff of a prison who, contrary to any rule, knowingly suffers any prohibited article to be brought into or removed from any prison, to be possessed by any prisoner, or to be supplied to any prisoner outside the limits of a prison and (3) When a person contrary to any rule communicates or attempts to communicate with any prisoner. 13. There is no allegation in the complaint that it was the petitioner who brought the mobile phone allegedly used by him in the premises of the hospital where the occurrence allegedly took place. So the first situation is not attracted. The second situation arises only if the offender is an officer or member of staff of a prison. Obviously, this is not applicable to the petitioner because he is neither an officer nor member of staff of a prison. So the first situation is not attracted. The second situation arises only if the offender is an officer or member of staff of a prison. Obviously, this is not applicable to the petitioner because he is neither an officer nor member of staff of a prison. The third situation also has not arisen in this case because it is applicable only when the offender is a person other than a prisoner. The facts of the case thus do not attract Section 86(1) of the Act. 14. The only question that requires consideration now is whether the facts alleged in the compliant constitute the offence under sub-section (2) of Section 86 of the Act. This sub-section has two limbs. The first limb makes possession of an electronic communication or other equipment inside the prison against the provisions of the Act or Rules. The offender may be a prisoner or visitor or prison official. The second limb is concerned with manipulating, damaging or destroying any equipment electronic or otherwise in the prison. There is no allegation that the petitioner has done any of these acts. So the second limb is not attracted. 15. The first limb of sub-section (2) of Section 86 is attracted only if the petitioner was found in possession of an electronic communication or other equipment. The specific allegation against him is that he talked to a TV channel reporter on a mobile phone which was handed over to him by the second accused. The subscriber of the phone was the petitioner, the number being 9447155555. It is the definite case of the second respondent/complainant that the mobile phone was in the possession of the second accused. He only allowed the petitioner to use it when a call came on the phone from a reporter of a TV channel. Possession is a relationship between a person and a thing. It shall pass the test of control. Using a mobile phone is different from possessing a mobile phone. The facts alleged in the complaint are not sufficient to hold that the petitioner was in possession of the mobile phone. 16. I have perused the sworn statement of the second respondent/complainant. His sworn statement is perfunctory in nature. Admittedly, he has no direct knowledge about the possession of the mobile phone by the petitioner during the relevant period. The facts alleged in the complaint are not sufficient to hold that the petitioner was in possession of the mobile phone. 16. I have perused the sworn statement of the second respondent/complainant. His sworn statement is perfunctory in nature. Admittedly, he has no direct knowledge about the possession of the mobile phone by the petitioner during the relevant period. What is mentioned in the sworn statement is that the second respondent/complainant saw in the media the petitioner talking to a news reporter on a mobile phone. This is no reason to hold that the latter was in possession of the mobile phone at the relevant time. The sworn statement of the second respondent further discloses that in a letter sent by the Additional Director General of Prisons there is a mention that complaint had been received that the petitioner used mobile phone unauthorisedly in prison. This is not sufficient to hold that the petitioner was in possession of a mobile phone. The other relevant statement in the sworn statement is that the second respondent learnt that the petitioner had called others and others called him during his imprisonment. This also does not lead to the conclusion that the petitioner was in possession of a mobile phone. 17. Even if it is assumed that the petitioner used the mobile phone, it cannot be held that he was in its possession. Thus, one of the essential elements to attract the offence under Section 86(2) of the Act is missing in this case. The learned Additional Chief Judicial Magistrate went wrong in taking cognizance of the offence under Section 86(2) of the Act and issuing process to the petitioner. Crl.M.C. Nos.1571 & 1243 of 2018 18. Petitioners in Crl.M.C. No.1571 of 2018 are accused 85 and 98, and the petitioner in Crl.M.C. No.1243 of 2018 is accused No.92 in C.C. No.203 of 2012 on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram. 19. The complaint of the second respondent shows that there are several accused in the case. But only the names of 1st and 2nd accused are disclosed. 19. The complaint of the second respondent shows that there are several accused in the case. But only the names of 1st and 2nd accused are disclosed. The other accused are shown as persons whose involvement will be revealed in the enquiry which may be conducted by the court under Section 202 Cr.P.C. The learned Chief Judicial Magistrate after recording the sworn statement of the second respondent, sent for the details of the calls made from and calls made to the mobile phone No.9447155555, whose subscriber is the first accused (petitioner in Crl.M.C. No.1236/2018). 20. The impugned order does not disclose why the petitioners in these Crl.M.Cs are made accused. The endorsement made in the proceedings sheet by the learned Magistrate on 6.3.2012, which is the date of the impugned order, runs thus : “Incorporate the name and address of the persons shown in the memo into the cause title of the complaint.” (sic) This does not make any sense. What can be gathered from the records of the lower court is that the call details of the mobile phone of the first accused collected from the telephone company revealed that there were several incoming and outgoing calls during the relevant period. 21. For the sole reason that neither the complaint nor the impugned order shows the reason for arraigning the petitioners as accused, the impugned order is liable to be set aside. 22. Anyone could have made a call to the phone, the subscriber of which was the first accused even though the first accused was not in physical possession of the mobile phone. So also any person other than the first accused could have made a call from the said mobile phone during the imprisonment of the first accused. There is no material to show that it was they who made the calls during the imprisonment of the first accused. Even if it is assumed that the first accused called the petitioners on his mobile phone during the relevant period, the petitioners cannot be said to have committed any offence. 23. For the reasons stated above, I am of the view that the learned Magistrate was not at all justified in issuing process to the petitioners. 24. This case reminds me of the saying that a little knowledge is more dangerous than little knowledge. The learned Magistrate should have dismissed the complaint in limine. 23. For the reasons stated above, I am of the view that the learned Magistrate was not at all justified in issuing process to the petitioners. 24. This case reminds me of the saying that a little knowledge is more dangerous than little knowledge. The learned Magistrate should have dismissed the complaint in limine. The tendency to rush to the court with a complaint by persons who do not have any material with them to support the allegation should be nipped in the bud. Unfortunately, the learned Magistrate was more loyal than the king. In the result, these Crl.M.Cs are allowed. The proceedings in C.C. No.203 of 2012 on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram are quashed so far as the petitioners are concerned.