Important Points:
• Complaint had been received that the petitioner used mobile phone unauthorisedly in prison-This is not sufficient to hold that the petitioner was in possession of a mobile phone- The petitioner had called others and others called him during his imprisonment-This also does not lead to the conclusion that the petitioner was in possession of a mobile phone.
• The petitioner used the mobile phone, it cannot be held that he was in its possession-One of the essential elements to attract the offence under Section 86(2) of the Act is missing in this case- The learned Additional Chief Judicial Magistrate went wrong in taking cognizance of the offence under Section 86(2) of the Act and issuing process to the petitioner.

In C.C. No.203 of 2012 Additional Chief Judicial Magistrate, Thiruvananthapuram ordered issuance of summons to the petitioners under Section 204 Cr.P.C. which is challenged in these petitions. The criminal law was set in motion by the second respondent, who filed Annexure-I complaint before the learned Magistrate alleging commission of the offences under Sections 86(1) and 86(2) of the Kerala Prisons And Correctional Services (Management) Act, 2010 (hereinafter referred to as 'the Act').

Crl.M.C. No.1236 of 2018

2. Petitioner is the first accused. In one case the Supreme Court convicted him, who is a former Minister, of an offence under the Prevention of Corruption Act and sentenced him to undergo imprisonment for a certain term. He was lodged in Central Prison, Poojappura (Thiruvananthapuram). From there he was shifted to a private hospital at Thiruvananthapuram for treatment of certain illness on 5.8.2011. It is stated in the complaint that on 29.11.2011 at the hospital a reporter of a television channel called him on his mobile phone; the second accused handed over the mobile phone to him, who talked to the reporter on the phone; the jail authorities received complaints in connection with this incident; they took action against the petitioner only for the offence under Section 81 of the Act though the facts reveal commission of the offences under Sections 86(1) and 86(2) of the Act also.

3. The learned Additional Chief Judicial Magistrate took cognizance of the offences mentioned in the complaint and conducted enquiry and issued process to 204 persons though there are only two named accused in the complaint, the first of whom being the petitioner. In this Crl.M.C. the order taking cognizance is challenged on the following grounds :

(i) only the jail authorities can initiate proceedings against the petitioner

(ii) the petitioner did not use mobile phone as alleged in the complaint, and

(iii) the facts of the case do not constitute any offence.

4. Heard the learned Senior Counsel and others for the petitioners, and the learned Public Prosecutor.

5. By the impugned order the learned Additional Chief Judicial Magistrate has found that there are sufficient grounds to proceed against the 204 accused including the petitioner for the offences under Sections 86(1) and 86(2) of the Act.

6. Sub-section 3 of section 86 of the Act provides that the offences under sub-sections 1 and 2 are cognizable. The Act does not provide that cognizance of the said offences can be taken only on the complaint of prison officers. The first ground urged in the Crl.M.C. is devoid of merit.

7. Another ground on the basis of which the impugned order is sought to be set aside is that the allegation in the complaint that the petitioner used mobile phone to talk to a media reporter is not true. The truth of this allegation, which is a question of fact, cannot be decided in this proceedings.

8. The only ground which deserves notice of the court is that the facts of the case do not reveal commission of the offence under sub-section 1 or sub-section 2 of Section 86 of the Act.

9. Section 86 of the Act runs as follows:

“86. Punishment in certain cases.-(1) Whoever, in contravention of any provisions of the Act, brings or removes or attempts by any means whatever to bring or remove, into or from any prison, or supplies or attempts to supply to any prisoner outside the limits of a prison, any prohibited article, and any officer or member of staff of a prison who, contrary to any rule, knowingly suffers any such article to be brought into or removed from any prison, to be possessed by any prisoner, or to be supplied to any prisoner outside the limits of a prison, and whoever, contrary to any rule, communicates or attempts to communicate with any prisoner, and whoever abets any offence made punishable by this section, shall, on conviction before a Magistrate, be liable to imprisonment for a term not exceeding twelve months, or to fine not exceeding ten thousand rupees or w