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2021 DIGILAW 1153 (KER)

Syamkumar, S/o. Sasidharan Pillai v. State Of Kerala

2021-12-16

K.HARIPAL

body2021
ORDER : This is a petition filed under Section 482 of the Criminal Procedure Code seeking to quash the entire proceedings in crime 401/2020 of Kunnikode police station, Kollam Rural, which was registered on 22.03.2020 alleging offence under Section 118(a) of the Kerala Police Act, hereinafter referred to as the Act. It is a crime registered suo motu by the Grade Sub Inspector Ramesh Kumar alleging that the petitioner had, on 21.3.2020 after 20:50 hours, made a Facebook post in his personal account stating that there is a medicinal preparation for defending the corona virus and thus he made false rumours through social media and made attempts to derail the functioning of the health service and thus committed offence under Section 118(a) of the Act. Thereafter the Investigating Officer sent a report to the court deleting Section 118(a) but adding Sections 118(b) and 120(o) of the Act. The petitioner has approached this Court for quashing the proceedings contending that the offence under Sections 118(b) and 120(o) of the Act will not be attracted, that he had never made such a post as a medicine for Covid but it is an immunity booster only, that some dicoction is made using herbs etc. Such immunity boosters are in use in Tamil Nadu; Ministry of Ayush also has acknowledged such immunity boosters and the post advised people, in case of fever, to seek medical assistance. Moreover, referring to Annexure-A7 he said that not only in the social media, such items are appearing in Kerala Kaumudi newspaper also and there is absolutely no meaning in proceeding against him alleging offence under Sections 118(b) and 120(o) of the Act. 2. The subject matter of the crime is a post made by the petitioner who is named in the FIR as the accused in his personal Facebook account with the following statement: That Tamil Nadu could effectively defend spread of corona virus to a great extent; on detailed study it came out that, that Government had encouraged distribution of 'Astrident juice nilavemb kiriyath kashayam', which was very effective. Such a preparation can be prepared simply at home with the given nine herbs by making in a powder form and then making it as a dicoction. Names of the herbs are also given in the post. Such a preparation can be prepared simply at home with the given nine herbs by making in a powder form and then making it as a dicoction. Names of the herbs are also given in the post. Beneath the post it is stated that if one who takes the dicoction feels fever or other discomforts, he should consult a doctor. Annexure-A5 is a news item appeared in Outlook, where he stated that Tamil Nadu has decided to distribute 'Kabasura Kudineer mix' through Government agencies. Annexure-A5(2) is another publication by the Indian Institute of Information Technology and Management, Kerala has developed a semantic search engine to enable researchers to get deeper insights into scientific studies, especially when the need to find an early solution to the Covid-19 crisis resulted in a large set of complex and scientific information. It is stated that the search engine will guide the researchers to the right information very fast. This makes easy the contextual search of information from the vast domain of scientific literature. A good initiative in the fight against Covid times, as such Ayurveda tools can help extract the contextual insights from research articles, said Saji Gopinath, CEO, Kerala Startup Mission and Director of Indian Institute of Management Kerala Mission. 3. Section 18(b) of the Act says that any person who knowingly spreads rumours or gives false alarm to mislead the police, fire brigade or any other essential service is guilty under Section 118. Similarly, Section 120(o) of the Police Act says 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, email or through a messenger is guilty of Section 120 of the Act. As rightly pointed out by the learned counsel for the petitioner, it is not understood as to how offences under Sections 118(b) and 120(o) of the Act would be attracted in the given circumstances. The petitioner has not denied having made such a post through his personal Facebook account. It is the settled proposition of law that in order to attract such an offence there should be elementary ingredients of the provisions. 4. The petitioner has not denied having made such a post through his personal Facebook account. It is the settled proposition of law that in order to attract such an offence there should be elementary ingredients of the provisions. 4. The Hon'ble Supreme Court has issued the following guidelines for exercise of inherent power to quash the FIR or complaint during the stage of investigation: (1) When the allegations made in the FIR or complaint are taken at their face value and accepted in their entirety do not prima facie constitute any offence; (2) When the allegations in the FIR and other materials if any accompanying the FIR do not disclose cognizable offence justifying the investigation by the police; (3) When uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not make out a case against the accused; (4) When the allegations in the FIR constitute only non cognizable offence; (5) When the allegations made in the FIR or complaint are so absurd or inherently improbable on the basis of which no prudent person can proceed against the accused. Other guidelines are also issued and for the present purpose the above are sufficient. In order to attract an offence under Section 118(b) of the Act there must be an act by the accused who had knowingly spread rumours or gave false alarm to mislead the police, fire brigade or any other essential service. It is not known as to what was the rumour which was spread by the petitioner. Similarly, in order to attract Section 120(o) of the Act he must have caused through any means of communication a nuisance of himself or any person by repeated undesirable or anonymous call, letter, writing, message, email or through a messenger. It does not require much research that here also there is absolutely no nexus between the act alleged against the petitioner and the offence imputed by the police. 5. The petitioner does not deny the posting of such a message in his Facebook account. As already noticed, he never prescribed such a medicine; he only quoted Tamil Nadu example, where such an Ayurvedic preparation that is Astrident juice used to be given to the public through Government media which was found to be very effective. 5. The petitioner does not deny the posting of such a message in his Facebook account. As already noticed, he never prescribed such a medicine; he only quoted Tamil Nadu example, where such an Ayurvedic preparation that is Astrident juice used to be given to the public through Government media which was found to be very effective. He has also stated that such a preparation made of herbs will boost up personal immunity and has never said that it is a medicine or it is a panacea for the Covid. In other words, the police has jumped into the conclusion as though he had made claim that it is a medicine for Covid-19. A plain reading of Annexure-A4 will never suggest that any medicine was suggested by the petitioner. It is also suggested that such a preparation would only boost up one's immunity level and if any discomfort is developed, he has to consult a doctor. 6. I have no doubt that elements of offences under Sections 118(b) and 120(o) of the Act are not made out. It is a completely misguided and mischievous attempt to prosecute a person who had made a post in the Facebook account to share some innocuous and harmless information which came to his knowledge. Ours is the birth place of Ayurvedic system of treatment. Ayurveda is unique and this system of treatment has obtained universal recognition. Similarly, such simple tips transferred through generations cannot be pooh-poohed by us. In my view, his bonafides cannot be suspected at all. He only stated that it would only boost up the immunity power of a person and successful attempts made by Tamil Nadu Government have been cited as illustration. As rightly pointed out by the learned counsel for the petitioner, such success story from Tamil Nadu has received wide appreciation from the Ministry of Ayush and also similar posts have appeared in social media through other sources as well in as the print media. Therefore, it is not known as to what was the provocation in singling out the petitioner and proceeding against him. 7. I was wondering whether is it a case that officials in Kunnikode police station are under-employed with no sufficient work to do. But the crime number would show that by March itself the number has crossed 400. That means, there must be sufficient cases at their disposal. 7. I was wondering whether is it a case that officials in Kunnikode police station are under-employed with no sufficient work to do. But the crime number would show that by March itself the number has crossed 400. That means, there must be sufficient cases at their disposal. It is not known whether they are up-to-date and final reports are laid promptly in all cases registered by them. I hope, officials at higher levels should discourage such exercises indulged in futility. Time and energy of the officials should be utilised for ventures beneficial to the society. Anyhow, it is absolutely a wasteful exercise and no offence has been made out against the petitioner. Even if the entire contents in the said post are taken into account, that will not attract any offence alleged against the petitioner and therefore I have no hesitation in quashing the proceedings. All further proceedings initiated against the petitioner pursuant to registration of crime No.401/2020 of Kunnikode police station are quashed. The Crl.M.C. is allowed as above.