IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 Crl.MC.No. 4122 of 2005(A) ------------------------- ST.533/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER/ACCUSED: ---------------------------------- C.L. ANTO, CHAIRMAN (CONSPI), MAMMIYOOR P.O., GURUVAYOOR. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.SOJAN MICHEAL SRI.M.P.PRABHANANDAN RESPONDENT/COMPLAINANT: -------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. * ADDITIONAL R2 & R3 IMPLEADED. ADDL.R2: THE S.I. OF POLICE, ERNAKULAM SOUTH RAILWAY STATION, ERNAKULAM, KOCHI - 682 016. ADDL.R3: THE INSPECTOR OF POLICE, RAILWAY PROTECTION FORCE, ERNAKULAM SOUTH RAILWAY STATION, ERNAKULAM, KOCHI - 682 016 IMPLEADED AS ADDL. R2 & R3 RESPECTIVELY AS PER ORDER DATED 11.3.2009 IN CRL.M.A. 1205/2009 IN CRL.M.C.4122/2005. ADDL.R3 BY ADV. SRI.JAMES KURIAN, SC, RAILWAYS PUBLIC PROSECUTOR SRI.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No.4122 of 2005. ================== Dated this the 17th day of August, 2009. O R D E R Petitioner is the accused in ST.533/2003 on the file of the Judicial First Class Magistrate-I, Ernakulam. Prosecution case against the petitioner is that on 19.4.2003 at about 11.35 P.M. in front of the information centre of platform No.1 of Ernakulam Junction Railway Station petitioner using abusive language scolded the ticket examiner, as the T.T.E. asked for the railway ticket from T.G.N.Kumar, a friend of the petitioner and petitioner thereby committed offences under section 290 of Indian Penal Code and section 146 of Indian Railways Act. Prosecution case is that T.G.N. Kumar, a friend of the petitioner came to Ernakulam junction Railway platform without a valid ticket. While the railway police and the railway protection force were jointly conducting raid at the Crl.M.C. No.4122 of 2005. 2 railway station platform for detecting ticketless travellers during summer rush, the ticket examiner asked T.G.N. Kumar to show his railway ticket. He refused to show the ticket. Thereafter the T.T.E. directed him to pay the fine. He refused to pay and scolded the T.T.E. using abusive language. He was therefore taken to Ernakulam South Police Station and petty case 613 of 2003 was registered for the offences under section 146, 147 and 145(b) of Indian Railways Act. By that time petitioner got down at the railway station from Guruvayoor-Chennai Express, Finding the fate of his friend, petitioner got infuriated and scolded the T.T.E. using obscene language. Petty case 614/2003 was registered against the petitioner for the offence under section 290 of Indian Penal Code and 146 of Indian Railways Act. The case as against T.G.N. Kumar was taken cognizance by the learned Magistrate as ST.551/2003 and the case as against the petitioner as ST.533/2003. The accused in ST.551/2003 T.G.N. Kumar, filed Crl.M.C. No.4122 of 2005. 3 Crl.M.C.No.3893/2005 under section 482 of Code of Criminal Procedure to quash the case contending that the case is foisted by the police. As per order dated 10.11.2006, this court quashed ST.551/2003 against T.G.N. Kumar applying Section 95 of Indian Penal Code as the offence alleged was found to be trivial in nature. Petitioner filed this petition under Section 482 of Code of Criminal Procedure to quash ST.533/2003. 2. Learned counsel appearing for petitioner and the learned Public Prosecutor were heard. 3. The learned counsel appearing for the petitioner pointed out that as per the allegations in Annexure 3 final report, no offence under section 146 of Indian Railways Act is attracted as ingredients of the offence under section 146 are not alleged. It is argued that the allegation in Annexure 3 report is that due to the enmity of petitioner to the TTE, for asking ticket from his fried T.G.N. Kumar, petitioner using abusive language, scolded the TTE on duty and Crl.M.C. No.4122 of 2005. 4 thereby caused nuisance to the public. There is no allegation in Annexure 3 report that petitioner obstructed any employee of the Railways. 4. Section 146 of Indian Railways Act provides the punishment for obstructing railway employee in his duty. If any person willfully obstructed or prevented any such servant in discharge of his duty, he shall be punishable for the sentence provided thereunder. Therefore to attract an offence under section 146 of Indian Railways Act there should be a case that petitioner willfully obstructed or prevented any railway servant in the discharge of his duty. Even if Annexure 3 report is accepted as such, there is no case that petitioner either prevented or willfully obstructed any railway servant in discharge of his duties. The allegation is only that using obscene words petitioner scolded the TTE. It will not attract an offence under section 146 of the Indian Railways Act as there is no case that petitioner willfully prevented or obstructed the T.T.E. or any Crl.M.C. No.4122 of 2005. 5 other railway servant in discharge of his duties. 5. The only other offence alleged is under section 290 of Indian Penal Code. Section 290 provides punishment for public nuisance in cases not otherwise provided for. Under the section whoever commits a public nuisance not otherwise punishable under the act, shall be punished with fine which may extended to two hundred rupees. Section 268 provides that a person is guilty of public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. 6. As rightly pointed out by the learned counsel appearing for the petitioner, case against TGN Kumar, the accused in ST.551/2003 which was registered as petty case 613/2003, on the allegation that he scolded the TTE in Crl.M.C. No.4122 of 2005. 6 obscene language was quashed by this court in Crl.M.C.3893/2005 finding that the said offence is trivial in nature as provided under Section 95 of Indian Penal Code. 7. Learned counsel appearing for the petitioner relied on the decision of the Apex Court in Mrs.Veeda Menezes, V. Yusuf Khan Haji Ibrahim Khan and another [AIR 1966 SC 1773] where the scope of Section 95 of Indian Penal Code and the trivial character of an offence was considered. On the facts it was found that the injuries caused to the appellant and Robert were trivial. The High Court found that the injury intended to be caused was so slight that a person of ordinary sense and temper would not complain of the harm caused thereby. Their lordships of the Apex court held: (3). Before us it was urged that the High Court had no power to act under S.95, IPC, since by the act of the respondent bodily hurt was intentionally caused. It was argued that S.95 applies only in those cases where the act which causes harm is accidental and not deliberate, and that the expression “harm” in S.95, IPC includes financial loss, loss of reputation, mental worry or even apprehensive of injury, but when physical injury is actually caused to the complainant S.95 cannot be invoked. In our view there is no Crl.M.C. No.4122 of 2005. 7 substance in these contentions. Section 95 provides: “Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.” It is true that the object of framing S.95 was to exclude from the operation of the Penal Code those cases which from the imperfection of language may fall within the letter of the law, but are not within its spirit and are considered, and for the most part dealt with by the Courts, as innocent. It cannot, however, be said that harm caused by doing an act with intent to cause harm or with the knowledge that harm may be caused thereby, will not fall within the terms of S.95. The argument is belied by the plain terms of S.95. The section applies if the act causes harm or is intended to cause harm or is known to be likely to cause harm, provided the harm is so slight that no person of ordinary sense and temper would complain of such harm. (4) The expression “harm” has not been defined in the Indian Penal Code, its dictionary meaning it connotes hurt; injury; damage; impairment; moral wrong or evil. There is no warrant for the contention raised that the expression “harm” in S.95 does not include physical injury. The expression “harm” is used in many Sections of the Indian Penal Code. In Ss.81,87,88,89,91,92,100,104 and 106 the expression can only mean physical injury. In S.93 it means an injurious mental reaction. In S.415 it means injury to a person in body, mind, reputation or property. In Ss.469 and 499 'harm' it is plain from the context, is to be reputation of the aggrieved party. There is nothing in Section 95 which warrants a restricted meaning which counsel for the appellant contends should be attributed to that word. Section 95 is a general exception, and if that expression has in many other sections dealing with general exceptions a wide connotation as inclusive of physical injury, there is no reason to suppose that the Legislature intended to use the expression “harm” in S.95 in a restricted sense. (5) The next question is whether, having regard to the circumstances, the harm caused to the appellant and to her servant Robert was so slight that no person of ordinary sense Crl.M.C. No.4122 of 2005. 8 and temper would complain of such harm. Section 95 is intended to prevent penalisation of negligible wrongs or of offences of trivial character. Whether an act which amounts to an offence is trivial would undoubtedly depend upon the nature of the injury, the position of the parties the knowledge or intention with which the offending act is done, and other related circumstances. There can be no absolute standard or degree of harm which may be regarded as so slight that a person of ordinary sense and temper would not complain of the harm. It cannot be judged solely by the measure of physical or other injury the act causes. A soldier assaulting his colonel, a policeman assaulting his Superintendent, or a pupil beating his teacher, commit offences, the heinousness of which cannot be determined merely by the actual injury suffered by the officer or the teacher, for the assault would be wholly subversive of of discipline. An assault by one child on another, or even by a grown up person on another, which causes injury may still be regarded as so slight, having regard to the way and station of life of the parties, relation between them, situation of life of the parties, relation between them, situation in which the parties are placed, and other circumstances in which harm is caused, that the victim ordinarily may not complain of harm.” 8. The learned counsel also relied on the decision of the Apex Court in Bindeshwari Prasad Singh Vs. Kali Singh [AIR 1977 SCC 57] and submitted that on the facts of that case, it was found that a very petty matter was allowed to have a long and chequered career because Magistrate refused to apply his mind either on the allegations in the complaint or to control the proceedings. Crl.M.C. No.4122 of 2005. 9 9. The learned counsel also relied on the decision of the High Court of Bombay in Philip Rangel Vs. Emperor [AIR 1932 Bombay 193]. The facts of the case as revealed in the judgment show that while a meeting of the share holders of a co-operative bank was in progress, it was proposed that the requisitionists of the said meeting should be expelled from the company. The accused got very angry. While he was leaving the room, he muttered the words “You damn bloody bastards and cads”. Those words although not addressed to the meeting in general, was overheard by some members who were present. The accused was prosecuted for the offence under Section 504 of Indian Penal Code. It was held that if abusive language is used in such circumstances that the court comes to the conclusion that it can not possibly have been intended to be taken literally and cannot have been understood by those to whom it was addressed to have been intended the accused cannot be convicted. Broomfield J following the Full Bench Crl.M.C. No.4122 of 2005. 10 decision of the Calcutta High Court in Gireesh Chunder V. Jatadhari Sadukkan [(1899) 26 Culcutta 653] held that even if there was a technical offence under Section 504 of Indian Penal Code. “it is clearly not a case in which the criminal courts should have been approached”. Holding that in the nature and circumstances of the case,it is covered by the provisions of Section 95 of Indian Penal Code. 10. Reliance was also placed on the decision of the Calcutta High Court in Sadananda Jash Vs. Shibakali Hazra [AIR 1954 Calcutta (288)] Facts of that case show that between the complaint's brother and the accused there was a criminal case over a land dispute and in the course of a conversation in connection with a compromise for arriving at a settlement of the case before the Head Master of the school, an occurrence took place. It is alleged that in the course of the conversation accused told the school master that he is telling a lie. The school master rushed to the Crl.M.C. No.4122 of 2005. 11 criminal court and filed a complaint alleging commission of offence under Section 504 of Indian Penal Code. The learned Magistrate convicted the accused, the District Magistrate in appeal acquitted him. It was challenged before the High Court. Applying the provisions of Section 95 of Indian Penal Code it was held that “there is complete justification for what the learned District Magistrate has done and intercourse in civilized society will come to an end if for words uttered as in the present case a person found himself exposed to all the trouble and worry of a criminal trial”. 11. In Anoop Krishnan Sharma Vs. The State of Maharashtra and another [1992 CRI. L.J. 1861] a learned Single Judge of the High Court of Bombay had occasion to consider the effect of provisions of section 95, on an offence of wrongful restraint under section 342 of Indian Penal Code. On a consideration of the facts it was held that it is a case clearly covered by Section 95 of Indian Penal Crl.M.C. No.4122 of 2005. 12 Code. It was held. “It is not merely the fact that technical requirements of the offences are complied with, but it also will have to be seen as to how serious and to what extent the harm and injury had occurred”. Finding that complainant and others came out of the place within a very short time, it was held that under these circumstances to permit a litigation either in the trial court or High Court or to convict a person on the basis of such minimal harm would be a travesty of justice and hence it is a fit case where Section 95 of the Indian Penal Code has to be applied. 12. As stated earlier the case registered against K.G.N.Kumar, the friend of the petitioner on similar allegations, was quashed by this court finding that Section 95 of Indian Penal Code is to be applied. The case against the petitioner is also that using obscene language, he scolded the TTE on getting agitated over the treatment meeted out to his friend. Even though prosecution has a Crl.M.C. No.4122 of 2005. 13 case that the friend also used obscene language and scolded the TTE, the case charged against that friend now stands quashed. If that be so, provisions of Section 95 of Indian Penal Code is to be applied to the case against the petitioner also, when the allegations are almost identical. It is not in the interest of justice to prosecute the petitioner for such trivial incident. Hence it is to be quashed. Petition is allowed. ST.533/2009 on the file of Judicial First Class Magistrate, Ernakulam is quashed. M.SASIDHARAN NAMBIAR, JUDGE app/-