Sajid was accused of- section 153 IPC
(Whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to Crl.M.C.No.7153/2019 be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both)
and, Section 120 (o) of the Kerala police act
(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 be punished on conviction.)
and was charged in kadampuzha police station for the same.
A newspaper report said that to children who belong to socially backward class or beaten to death by violent mob in madhya Pradesh for defecating in open public place. Someone wrote about the incident on the Facebook account and posted it. Sajid saw the post and shared it with others. The complainant made a complaint to the sub inspector of Kadamphuza Police Station and that the words used in the Facebook post insulted Hindu religion and it caused very much pain to him who professes and practices the Hindu religion. On the basis of complaint FIR was registered against Sajid and the second accused,who had posted the video for offences under section 153 IPC and section 120 (o) of Kerala Police Act.
In the present case before Kerela High Court, Sajid files a petition to set aside the FIR and all the proceedings based on it on the ground that the allegations contained therein do not constitute the ingredients of the offence alleged against him.
the court stated that ,"
The ingredients to constitute an offence under Section 153 I.P.C are the following: (1) An act shall be done which is illegal (2) Such illegal act shall be done malignantly or wantonly (3) The act done shall cause provocation to some person (4) The act giving provocation should have been done (a) intending that the provocation will cause the offence of rioting to be committed or (b) knowing it to be likely that such provocation will cause the offence of rioting to be committed."
The court also stated that the post was made by the second accused which may hurt sentiments of Hindu religion people and that Sajid did not write it is just shared to others through Facebook he has probably done a wanton act. The court also observed that the complaint does not reveal that the Facebook post shared by Sajid caused riots or any kind of provocation in the public.And therefore shouldnot be convicted u/s153 IPC.
Now,regarding S120(o) of Kerala Police Act,The Court held that,
"the act of the petitioner sharing the facebook post, cannot be considered as a responsible act done by him. But, Annexure-III complaint does not contain any allegation that, by sharing the facebook post, the petitioner caused any Crl.M.C.No.7153/2019 nuisance of himself to the de facto complainant or any other person. The discussion above would show that the ingredients of the offences punishable under Section 153 I.P.C and Section 120(o) of the Kerala Police Act, 2011 have not been made out against the petitioner (Sajid) from Annexure-III complaint. Therefore, the proceedings against the petitioner for the aforesaid offences initiated on the basis of Annexure-III complaint are liable to be quashed. It is to be made clear that Annexure-IV FIR as such cannot be quashed. This Court has only found that the offences alleged against the petitioner in the FIR are not attracted on the basis of Annexure-III complaint. This Court has not considered the question whether any other offence would be attracted by the act allegedly committed by the petitioner or the second accused."
Hence,in conclusion, the petition is allowed in part. And S.153 IPC and 120(o) Kerala Police Act has been set aside.
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