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2024 Supreme(Ker) 1577
IN THE HIGH COURT OF KERALA AT ERNAKULAM
G. GIRISH, J.
Jamal, S/o. Sainudheen – Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor, High Court Of Kerala – Respondent
CRL.MC No. 2022 Of 2019
Decided On : 17-12-2024
For the Petitioner: S. Rajeev, Sri. K.K. Dheerendrakrishnan, Sri. V. Vinay, Sri. D. Feroze, Sri. K. Anand.
For the Respondent: Sri. Sangeetharaj N.R. Public Prosecutor
IMPORTANT POINT
Public servants' comments criticizing government policies do not constitute offences under IPC Sections 166 and 167 without intent to cause injury or responsibility for document preparation.
Headnote:
(A) Indian Penal Code - Sections 166 and 167 - Quashing of proceedings against a public servant for posting sarcastic comments on a government appeal - The court found no intention to cause injury to the Government, and the comments did not exhort others against contributing to the Flood Relief Fund. (Paras 6, 7, 10)
(B) Public Servant - Definition and duties - The court clarified that the accused, being an Outlet Manager, did not have the responsibility for preparing or translating documents, hence Section 167 IPC was not applicable. (Paras 8, 10)
Facts of the case:
The accused posted comments in a Whatsapp group criticizing government expenditure while responding to the Chief Minister's appeal for salary donations for flood relief.
Findings of Court:
The offences under Sections 166 and 167 IPC were not attracted as there was no intent to harm the Government or responsibility for document preparation.
Issues: Whether the comments constituted disobedience of law with intent to cause injury to the Government and applicability of Sections 166 and 167 IPC.
Ratio Decidendi: The court ruled that the term 'person' in IPC does not include the Government, and the comments did not incite avoidance of salary donations.
Result: Petition allowed, proceedings quashed.
ORDER :
(G. Girish, J.)
The accused in C.C.No.1468/2018 on the files of the Judicial First Class Magistrate Court, Kasaragod has filed this petition under Section 482 Cr.P.C to quash the proceedings in the said case.
2. The prosecution case is that the accused, while being the Outlet Manager of a SupplyCo shop at Kasaragod, posted on 27.08.2018, sarcastic comments in a Whatsapp group of the SupplyCo Employees of Kasaragod, against the appeal of the Chief Minister of Kerala to the Government servants to donate a month’s salary to the Flood Relief Fund, with the intention of causing injury to the Government, and thereby committed the offence punishable under Sections 166 and 167 of the Indian Penal Code.
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala. Perused the case diary file of the crime.
4. The controversial comment has been posted by the petitioner after extracting the picture of the Chief Minister of Kerala and the appeal made by him that all Malayalees may give a month’s salary for their land. The comments start from the caption that Malayalees will happily donate their monthly salary for the State but you have to reduce the expenditure. Thereafter, six instances of expenditure incurred by the Government are pointed out, which according to the author of that post, amount to defalcation. The above post concludes with the remark that the Chief Minister has to show role model and thereafter make advices.
5. Section 166 of the Indian Penal Code is extracted hereunder for the sake of convenience and easy reference:
“166. Public servant disobeying law, with intent to cause injury to any person.—Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.”
The essential ingredients constituting the above offence are as follows:
(i) The offender shall be a public servant at the time of commission of the offence.
(ii) The offender knowingly disobeyed any direction of the law as to the way in which he is to behave himself as a public servant.
(iii) The above disobedience was with the intention to cause injury to any person, or with the knowledge that it is likely to cause injury to any person.
6. As far as the present case is concerned, there is no dispute as to the fact that the petitioner comes within the definition of a public servant since he being an employee of the Civil Supplies Corporation of the Government of Kerala. The next aspect to be looked into is whether he disobeyed any direction of the law as to the way in which he is to conduct himself as a public servant. On that point, it is argued by the learned Public Prosecutor that the code of conduct applicable to the Government employees proscribes open criticism of the policy and decision of the Government, and hence the petitioner had knowingly disobeyed the above direction of law. It is true that the service discipline to be followed by every Government employee requires such Government servant to avoid open and public criticism of the policies and decisions of the Government. In that sense it could be said that the petitioner had disobeyed the direction of law as to the way in which he is to conduct himself as a public servant. However, there is absolutely no material available on record to show that the above disobedience on the part of the petitioner was with the intention to cause injury to any person, or with the knowledge that such disobedience is likely to cause injury to any person. As per the averment in the final report, the petitioner committed the aforesaid disobedience with the intention to cause harm to the Government. However, it is not possible to say that the word ‘'70erson’ embodied
