IMPORTANT POINT
An act cannot be deemed illegal under Section 153 IPC if it involves the removal of an illegally displayed poster without intent to provoke rioting.

ORDER :

BECHU KURIAN THOMAS, J.

Amidst the large number of tourists that flock to Kerala - “God’s own country”, petitioner was unfortunate to have faced the traumatic incident of being arrested alleging the commission of an offence under Section 153 of the Indian Penal Code, 1860. Further, after obtaining bail in the said crime, while she was about to leave the country, she was detained at the Kochi International Airport pursuant to a lookout notice issued at the behest of the police that too, for a bailable offence. In the meantime, the final report was filed and cognizance has been taken by the Judicial First Class Magistrate's Court, Mattanchery as C.C. No.462/2024. Petitioner challenges the said criminal proceedings through this petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

2. The incident that led to the registration of Crime No.390/2024 of Fort Kochi Police Station against the petitioner revolves around two banners kept at Fort Kochi - a tourist destination in Kerala. The two posters kept by some unknown organization contained the slogan “SILENCE IS VIOLENCE, STAND UP FOR HUMANITY”. Perturbed by the two posters, petitioner, a lady of Jewish descent but an Australian citizen and her friend, after being unsuccessful in their attempt to get it removed through the tourism office, felt it necessary to remove them. The banners apparently generated in her mind, impressions about the ongoing war between Palestine and Israel. Petitioner thereafter, allegedly tore the two banners. The 3rd respondent who is purported to be the Area Secretary of the Students Islamic Organization (SIO), a student wing of the Jamaat-e-Islami, filed a complaint alleging that the posters put up in front of the boat jetty at Fort Kochi were destroyed by two tourists inappropriately, and requested the Police to register a crime.

3. Pursuant to the above complaint, FIR No.390/2024 of Fort Kochi Police Station was registered, and a final report was filed, alleging an offence punishable under Section 153 IPC. Subsequently, the Judicial First Class Magistrate, Mattancheri, took cognizance of the offence as C.C.No.462/2024. The petitioner, who is the sole accused in the above crime, seeks to quash the said proceedings.

4. Sri.Blaze K Jose, the learned counsel for the petitioner, contended that, the uncontroverted allegations in the final report do not make out the offence alleged and therefore the prosecution is liable to be quashed. The learned counsel further submitted that the two posters that were allegedly destroyed by the petitioner were admittedly not legally permissible posters and hence even if it is assumed that they were destroyed by the petitioner, the same could not have been termed to be a malignant or wanton act which was illegal. The learned counsel submitted that as a tourist, the petitioner had to undergo tremendous anguish pursuant to the registration of the crime and its continuance will be further disquieting.

5. Though notice to the 3rd respondent was sent by special messenger which was served on him on 21.08.2024. Till date, none has chosen to appear on his behalf.

6. Smt.Sreeja.V, the learned Public Prosecutor, contended that the allegations are required to be tested in a trial and therefore, resort to the inherent powers of this Court ought not to be permitted.

7. While considering the rival contentions, it is necessary to bear in mind the provisions of Section 153 of IPC, which is extracted as below:

“S.153 - “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 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