P. Jayesh v. Sub Inspector Of Police, Thrissur East Police Station
2020-11-02
ALEXANDER THOMAS
body2020
DigiLaw.ai
ORDER : The prayer in the aforecaptioned Crl. Miscellaneous case filed under Sec.482 of the Cr.P.C is as follows : “................ to quash Annexure-A final report submitted in Crime No:345/2018 of Thrissur East Police Station, Thrissur City taken on to the files of the Judicial First Class Magistrate Court as C.C No:1647/2018 and allow this Memorandum of Criminal Miscellaneous Case in the interest of justice.” 2. Heard Sri.K.M.Sathyanatha Menon, learned counsel appearing for the petitioner (sole accused), Sri.B.Jayasurya, learned Public Prosecutor appearing for respondent Nos.1 & 2 (Station House Officer & State of Kerala). Notice has been sent to contesting respondent No.3 (lady de facto complainant) through the Inspector of Police of the area concerned, in her address as shown in the impugned criminal proceedings and it is now reported that the addressee is not in place, as she is at Dubai. 3. The petitioner herein has been arrayed as the sole accused in the instant First Information Report in Crime No.345/2018 of Thrissur East Police Station, for offence punishable under Sec.120(o) of the Kerala Police Act, 2011, on the basis of the petition filed by the lady de facto complainant (3rd respondent). The police after investigation has filed the impugned Annexure-A final report/charge sheet in the said Crime No.345/2018 of Thrissur East Police Station, which has now led to the pendency of calendar case C.C.No.1647/2018 on the file of the Judicial First Class Magistrate’s Court-I, Thrissur. 4. The gist of the prosecution case is that earlier the petitioner was the tenant in a building owned by the 3rd respondent and that on 12.02.2018 at about 1 p.m., he after taking the screenshot of the photos of the 3rd respondent and her family members in their Facebook profile, had posted in the Facebook account of the petitioner a posting that the 3rd respondent after letting out her property without agreement and after taking advance from the petitioner, had refused to give back the advance, when the petitioner had sought for maintenance and that the people should be beware of the 3rd respondent, etc. The abovesaid incident is said to have happened in the context of the tenant-landlord disputes between the petitioner and the 3rd respondent. The sole offence alleged against the petitioner is the one as per Sec.120(o) of the Kerala Police Act.
The abovesaid incident is said to have happened in the context of the tenant-landlord disputes between the petitioner and the 3rd respondent. The sole offence alleged against the petitioner is the one as per Sec.120(o) of the Kerala Police Act. Sec.125(3) of the Kerala Police Act, 2011 would mandate that all offences other than Secs.116, 117, 118 & 119 of the Kerala Police Act enumerated in Sec.125(1) shall be non-cognizable and bailable. In other words, an offence in the nature of Sec.120(o) of the Kerala Police Act is a non-cognizable and bailable offence. Sec.155(2) of the Cr.P.C would mandate that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. Sec.120(o) of the Kerala Police Act would stipulate that if any person causing, through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing message, e-mail or through a messenger; shall, on conviction, be punishable with imprisonment, which may extend to one year or with fine, which may extend to Five Thousand rupees or with both. Indisputably, the offence as per Sec.120(o) of the Kerala Police Act is a non-cognizable offence going by the mandate of Sec.125(2) of the said Act. Hence, police can investigate such an offence only after securing orders of the Magistrate having the power to try such case or commit the case for trial, going by the mandate of Sec.155(2) of the Code of Criminal Procedure, 1973. 5. The learned Public Prosecutor has made available the proceedings of the police, in which the learned Magistrate is said to have granted permission/sanction for conducting investigation by registering FIR. A reading of the said proceedings would show that the learned Magistrate has acted rather mechanically in granting such sanction and has not applied his judicial mind. Admittedly, it appears that the petitioner was a tenant in the building owned by the 3rd respondent and there were tenant-landlord disputes between them.
A reading of the said proceedings would show that the learned Magistrate has acted rather mechanically in granting such sanction and has not applied his judicial mind. Admittedly, it appears that the petitioner was a tenant in the building owned by the 3rd respondent and there were tenant-landlord disputes between them. It is in that context that the petitioner is alleged to have put the Facebook photos of the 3 rd respondent and her family members in his Facebook posting by alleging that the 3rd respondent has let out her building without any agreement and after taking advance from him and when he demanded for repairs, the same was not acceded to and his advance amount was also not returned and that therefore, one should be wary of the conduct of the 3rd respondent as a landlord of the building in question. The said posting is alleged to have been made by the petitioner admittedly, in the context of the landlord-tenant disputes between the parties. Now-a-days with the exposure of social media in our public life, all imagined, perceived or real complaints or grievances are voiced by various persons in social media. It is the fate of our information age that the parties, who are used to social media, take recourse to the same for airing their imagined or real grievances. Some of the disputes between the parties may be petty and it is only better for the legal system to ignore the same with the value it deserves. The respondents do not have any case that there were no landlord-tenant disputes between the parties. If all such opinions or views expressed in social media, including Facebook posting are to be taken very seriously, then there may not be any end to differentiate between the serious and the silly or petty cases. Some of the cases may have to be ignored with the disdain it deserves, as far as the police investigation machinery is concerned. Indisputably, the offence alleged as per Sec.120(o) of the Kerala Police Act, 2011 is a non-cognizable offence going by the mandate of Sec.125(3) of the said Act.
Some of the cases may have to be ignored with the disdain it deserves, as far as the police investigation machinery is concerned. Indisputably, the offence alleged as per Sec.120(o) of the Kerala Police Act, 2011 is a non-cognizable offence going by the mandate of Sec.125(3) of the said Act. The Code of Criminal Procedure, 1973 would place an embargo on the police to investigate such a case, as in the instant one by the mandate of Sec.155 of the Cr.P.C and Sec.155(2) would specifically mandate that no police officer shall investigate a non-cognizable case without the order of a Magistrate, who has the power to try such a case or commit the case for trial. In a case like this, the police could have easily instructed the 3rd respondent that it is for her to seek appropriate remedies, in the manner known to law and not to burden the police investigating machinery, which is already overloaded with very serious cases. If at all, the police had thought it fit to make a request to the learned Magistrate, then the learned Judicial Magistrate should have judicially applied his mind and found out, as to whether it is a fit case for granting sanction or permission to the police to conduct investigation into such a non-cognizable case. 6. Sec.2(l) of the Cr.P.C would define a “non-cognizable offence” to mean an offence for which, and “non-cognizable case” means a case, in which a police officer has no authority to arrest without warrant. Sec.2(c) of the Cr.P.C would define “cognizable offence” to mean an offence for which and “cognizable” case means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. Therefore, in a case like this, especially pertaining to the landlord-tenant disputes between the rival parties, the learned Magistrate should have seriously applied his judicial mind to the crucial aspects of the case and found out whether it is a fit case to grant sanction or permission for conduct of investigation by the police, as envisaged in Sec.155(2) of the Cr.P.C. The records placed for the perusal of this Court would disclose that the learned Magistrate has not made any application of mind and mechanically sanctioned by a non-speaking order. 7.
7. Going through the materials in this case, this Court is of the considered view that the learned Magistrate has committed a serious error in having granted permission or sanction in the facts and circumstances of the case, so as to empower the police to investigate the present case, which has predominantly emanated out of the landlord-tenant disputes between the rival parties. The disputes projected in the case appear to be rather non-serious and petty in nature and the same should have been ignored for the value it deserves. If cases of this nature are routinely investigated by the police after getting permission of the Magistrate, who acts rather mechanically, then it would amount to overburdening the police investigation machinery, which is already overloaded with very many cases. Those crucial aspects of the matter have not been properly taken into account by the learned Magistrate. If such private disputes between a landlord and the tenant, as in the instant case are the subject matter of police investigation and criminal prosecution and that too at the instance of the State machinery, then the consequences would be not so desirable to say the least. Therefore, this Court is of the considered view that the action on the part of the learned Magistrate in having granted sanction or permission to the police to investigate the allegations sought for commission of the non-cognizable offence in this case as per Sec.120(o) of the Kerala Police Act and the further action in having charge sheeted the case, would deserve interdiction at the hands of this Court. It is now apprised to this Court that the petitioner had vacated the premises of the 3rd respondent long ago and further it appears that the 3rd respondent is now in Dubai. These cases may emanate at the heat of the moment and after some calm situation, the parties itself might realize the folly in indulging such petty disputes. At any rate, burdening the police investigation machinery and the State prosecution agency, with such cases is not the right and proper approach. 8.
These cases may emanate at the heat of the moment and after some calm situation, the parties itself might realize the folly in indulging such petty disputes. At any rate, burdening the police investigation machinery and the State prosecution agency, with such cases is not the right and proper approach. 8. In that view of the matter, this Court is of the considered view that the impugned criminal proceedings would deserve interdiction at the hands of this Court by exercise of the inherent extraordinary powers conferred under Sec.482 of the Cr.P.C. Accordingly, it is ordered that the impugned Annexure-A final report/charge sheet filed in Crime No.345/2018 of Thrissur East Police Station, which has now led to the pendency of calendar case C.C.No.1647/2018 on the file of the Judicial First Class Magistrate’s Court-I, Thrissur as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused, will stand quashed and set aside. 9. The petitioner will produce certified copies of this order before the Investigation Officer concerned as well as before the Judicial First Class Magistrate’s Court-I, Thrissur, who is dealing with C.C.No.1647/2018, for necessary information. With these observations and directions, the above Crl.M.C will stand disposed of.