IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 Crl.MC.No. 1990 of 2007() ------------------------- CC.105/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... PETITIONER(S): ACCUSED NO.1 TO 4: --------------------------------------------------------- 1. KUNJIRAMAN, S/O KUNJAMBU, PADAVIL HOUSE, EVERI AMSOM, THERANDI,THALIPARAMBA, KANNUR. 2. NARAYANAN, S/O KUNJAMBU,PADAVIL HOUSE, EVERI AMSOM, THERANDI, THALIPARAMBA, KANNUR. 3. PADMANABHAN, S/O KUNJAMBU, PADAVIL HOUSE, EVERI AMSOM, THERANDI, THALIPARAMBA, KANNUR. 4. PHALGUNAN, S/O KUNJAMBU, PADAVIL HOUSE, EVERI AMSOM, THERANDI, THALIPARAMBA, KANNUR. BY ADVS. MR.SUNIL NAIR PALAKKAT, MR.K.N.ABHILASH. RESPONDENTS/STATE & DEFACTO COMPLAINANT: ------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, KERALA HIGH COURT, ERNAKULAM. 2. CHEVIKKUTTY, S/O LATE KUNJAMBU, KUVERIKKARATHI VEEDU, ERAVI AMSOM, THERANDI, THALIPARAMBA, KANNUR. R1 BY PUBLIC PROSECUTOR MR. K.S.SIVAKUMAR R2 BY ADV.MR.MILLU DANDAPANI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1990 OF 2007 ------------------------------------------ Dated 15th February 2010 O R D E R Petitioners are the accused in C.C.105/2007 on the file of Judicial First Class Magistrate, Taliparamba, taken cognizance for the offence under Section 354 of Indian Penal Code on Annexure-A3 final report. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A3 final report and the cognizance taken thereon contending that the ingredients of the offence under Section 354 of Indian Penal Code is not attracted and therefore, continuation of the proceedings is only an abuse of process of the court. Second respondent is the de facto complainant. Crmc 1990/07 2 2. Learned counsel appearing for the petitioner, second respondent and learned Public Prosecutor were heard. 3. Annexure-A1 FI statement of second respondent, was recorded by Assistant Sub Inspector of Police based on which crime No.781/2006 of Taliparamba police station was registered for the offence under Sections 447 and 354 read with Section 34 of Indian Penal Code. Subsequently after investigation Annexure- A2 report was filed deleting the offence under Section 447 of Indian Penal Code and after investigation the offence alleged against petitioners is only under Section 354 of Indian Penal Code. 4. Section 354 of Indian Penal Code provides that whoever assaults or uses criminal force to any woman, intending Crmc 1990/07 3 to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment for a term which may extend to two years or with fine or with both. Therefore, in order to attract an offence under Section 354 petitioners must use criminal force to the second respondent “intending to outrage or knowing it to be likely that they will thereby outrage her modesty”. Annexure-A1 FI statement does not show that there was an intention on the part of the petitioners to outrage the modesty of the second respondent or that they did act with the knowledge that they were thereby outraging her modesty. 5. What is alleged in the FI statement is that there was a civil litigation pending between the parties for Crmc 1990/07 4 about six years and ultimately the civil court decision was in favour of the second respondent and consequently second respondent started rubber tapping and at that time all the petitioners came there uttering that they will show the second respondent, the law and proclaiming so, first petitioner caught hold of the hands of the second respondent and pulled her and caused her to fall on the ground. When hearing her cry, Dineshan, her son and others ran towards her, petitioners left the place. She was taken to the hospital. But there is no allegation in the FI statement that first petitioner either caught hold of her hands or made her fall on the ground, with an intention to outrage her modesty or with knowledge that he would thereby outrage her modesty. Crmc 1990/07 5 Learned Public Prosecutor submitted that statement of the witnesses recorded under Section 161 also do not show that there was an intention to outrage the modesty of the second respondent. In such circumstances, even if there was an incident whereunder first petitioner caught the hands of the second respondent and made her fall on the ground, it will not attract an offence under Section 354 of Indian Penal Code. At best, it could be said that he has used criminal force and made the petitioner fall. Even if, an offence under Section 323 of Indian Penal Code is thus attracted, learned Magistrate could not have taken cognizance of the said offence on the final report filed under Section 173(2) of Code of Criminal Procedure as cognizance could be taken on such an offence only on a Crmc 1990/07 6 complaint as defined under Section 2(d) of the Code. In such circumstances, continuation of the proceedings is only an abuse of process of the court. Petition is allowed. C.C.105/2007 on the file of Judicial First Class Magistrate, Taliparamba is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.