IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 Crl.MC.No. 2887 of 2009() ------------------------- CC.509/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER(S): ACCUSED ---------------------- 1. S.K.SAJEEV, S/O DR. KARUNAKARAN, FLAT BO.8B, JM PARADISE APARTMENTS, PALARIVATTOM, COCHIN-25. 2. REKHA SAJEEV, W/O S.K.SAJEEV, S/O DR.KARUNAKARAN, FLAT NO.8B, JM PARADISE APARTMENTS, PALARIVATTOM, COCHIN-25. BY ADV. SRI.P.SANJAY SMT.A.PARVATHI MENON SRI.BIJU MEENATTOOR SRI.M.MUHAMMED SHAFI SRI.RAJAN KUDUMBATHIL SRI.GLEN ANTONY RESPONDENT(S): COMPLAINANT:- --------------- STATE OF KERALA , REP. BY SUB INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.M.C.No. 2887 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 7th day of December, 2009 O R D E R As per Annexure-A1 order in W.P.(C) No.37874 of 2003, a Division Bench of this Court directed to render police protection to first petitioner and members of his family. Crime No.559 of 2003 of Ernakulam Town North Police Station was registered against petitioners alleging offences punishable under section 353 read with section 34 IPC, on the basis of the First Information Statement of the Police Constable attached to the Ernakulam Town North Police Station to the effect that as ordered by the High Court to provide police protection to the petitioners, he came to the flat wherein petitioners were residing on 7-12-2003 and after reaching the apartment of the first petitioner, he pressed the calling bell and second petitioner, the wife of first petitioner, along with a small child came out and when the Police Constable asked her whether first petitioner is there, she stated that he is not there and the policeman asked for a chair. Then she disclosed that without permission of first petitioner, it cannot be given. At the request of the Police Constable, she contacted second petitioner over the cell and handed over the cell phone to the Police Constable. When he Crl.M.C.2887/09 2 disclosed to the first petitioner that he came there to give police protection, first petitioner asked him to go outside and wait in vulgar language. It is also alleged that second petitioner also asked him to go downstairs and by such conduct, the Police Constable could not render the protection, as ordered by the High Court, and thereby petitioners caused obstruction to his official work and due to this, he suffered mental pain and petitioners thereby committed the offence punishable under section 353 read with section 34 IPC. This petition is filed under section 482 Cr.P.C. to quash the cognizance taken for the offence under section 353 read with section 34 IPC on Annexure-A2 final report. 2. Heard learned counsel appearing for petitioner and learned Public Prosecutor appearing for the respondent. 3. Annexure-A2 final report and Annexure-A1 F.I.S. only disclose that when the Police Constable went to the apartment of the petitioners in the flat to render police protection to them as ordered by this Court in W.P.C37874 of 2003 on 7-12-2003, at about 9.30 A.M., petitioners did not provide him with sufficient accommodation and directed him to wait out side and the language used by them was bad and it would amount to obstruction in discharging his official duty. As rightly submitted by the learned counsel appearing for petitioners, there is no case against petitioners Crl.M.C.2887/09 3 that they either assaulted or used criminal force to deter the Police Constable from discharging his official duty. To attract “assault” as defined under section 351 IPC, petitioners would either make any gesture or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that they made that gesture as preparation to use criminal force to that person. “Criminal force" is defined under section 350 IPC to attract which petitioners should intentionally use force, without that person's consent, in order to commit the said offence. In the absence of any evidence that petitioners either assaulted or used criminal force, an offence under section 353 IPC is not attracted. Even if they are to be tried, there is no likelihood of a successful prosecution. In such circumstances, continuation of the prosecution is only an abuse of process of the court. 4. Hence, the petition is allowed. C.C.No.509 of 2004 on the file of Judicial Magistrate of First Class-I, Ernakulam is quashed. M.SASIDHARAN NAMBIAR, JUDGE. mn. Crl.M.C.2887/09 4