Point of Law: Section 120(o) of Kerala Police Act, 2011 Penalty for causing nuisance and violation of public order.

ORDER :

This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity).

2. The petitioner herein is the accused in Crime No. 263/2017 of Edakkara Police Station now pending before the Judicial Magistrate of First Class Court, Nilambur as S.T. No.677/2017. The above case is charge sheeted against the petitioner alleging offences punishable under Section 120(o) of the Kerala Police Act. The case was registered based on a complaint filed by the 2nd respondent. Annexure-A1 is the complaint. Annexure-A3 is the F.I.R. Annexure-A4 is the First Information Statement. Annexure-A5 is the Facebook post.

3. The 2nd respondent is an Orthodox Christian Priest of the Indian Orthodox Church. The main allegation in the complaint lodged by the 2nd respondent is that on 08.08.2017, about 35 priests from Malankara Orthodox Church conducted a Hunger Strike before the Head of the Orthodox Church in the Main centre, Kottayam holding a Banner. But, it is stated that with an intention to insult, the rival priest replaced the banner and defamed him before the fellow priests and public at large. Based on Annexure-A1 to A5, the Judicial Magistrate of First Class Court, Nilambur, passed Annexure-A6 order granting permission to register the case. Annexure-A7 is the memorandum of evidence produced along with the charge sheet. Annexure-A8 is the final report. According to the petitioner, the offence under Section 120(o) of the Kerala Police Act, is not attracted, even if the entire allegations in the final report are accepted. Hence, this Crl. M.C. is filed.

4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

5. The short point to be decided is whether Section 120(o) of the Kerala Police Act, 2011 is attracted in this case. It will be better to extract Section 120(o) of the Kerala Police Act, 2011.

“Section 120: Penalty for causing nuisance and violation of public order

If any person,---

(o) causing, through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, email or through a messenger,

shall, on conviction, be punishable with imprisonment which may extend to one year or with fine which may extend to five thousand rupees or with both.”

6. The ingredients of an offence under Section 120(o) of the Kerala Police Act, 2011 are:

i. A person causing a nuisance of himself to another person;

ii. Causing such nuisance shall be through any means of communication;

iii. Act causing nuisance may be done by the repeated or undesirable or anonymous call, letter, writing, message, e-mail or through a messenger;

7. In other words, a person causing nuisance of himself to any other person through any means of communication, is the essential ingredient of an offence punishable under Section 120(o) of the Kerala Police Act, 2011.

8. The Annexure-A1 is the complaint filed by the 2nd respondent. The contents of Annexure-A1 complaint is extracted here under;

9. The main allegation in the complaint is that a photo was posted on Facebook with a wrong banner manipulated by the accused. Annexure-A8 is the final report. It will be better to extract the contents of Annexure-A8 also;

10. In Sajidh D. v. State of Kerala [2019 (4) KLT 808], this Court observed that, the act of the petitioner -sharing the Facebook post -cannot be considered as a responsible act done by him. This Court in Sanjeev S. v. State of Kerala [2023 (3) KHC 324] considered the scope of Section 120(o) of the Kerala Police Act, 2011 once again. It will be better to extract the relevant portion of the above judgment;

“12. The remaining question is whether S.120(o) of the Police Act, is attracted in the present case. The Section reads as ‘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