No prosecution can proceed under Sections 500 IPC and 120(o) Kerala Police Act as allegations lack requisite legal merit; obscenity not established under Section 67 IT Act.

ORDER

This Criminal Miscellaneous Case is filed to quash the proceedings in C.C.No.251/2018 on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram. The case was charge sheeted alleging offences punishable under Sections 500 of the Indian Penal Code , Section 120 (o) of the Kerala Police Act and Section 67 of the Information Technology Act . The case was registered on the basis of a complaint filed by the 2^nd respondent before the Assistant Commissioner of Police, Thiruvananthapuram. The case was registered by the Museum Police Station.

2. The 2^nd respondent filed a complaint alleging that the accused misused the Cyber media by putting false news in his Facebook account with the intention of defaming the complainant. Annexure-I is the final report. The learned Magistrate took cognizance based on the final report and issued summons to the accused. According to the petitioner, even if the entire allegations are accepted, no offence is made out. Hence, this Criminal Miscellaneous Case.

3. Heard counsel for the petitioner, Public Prosecutor and the counsel appearing for the 2^nd respondent.

4. According to the petitioner, the allegation contained in the final report relates to the unauthorized reclamation of wet lands at Mullakkal village made by former Minister Sri. Thomas Chandy to facilitate walking space and road access to the tourist resort owned by M/s. Water World Tourism Company. The Revenue Divisional Officer and Village Officer found that the reclamation of land was made unauthorizedly is the submission. Earlier, there was no road access to the resort, the only access to the resort was Punnamada Lake is the further submission. It is submitted that the report of the Revenue Divisional Officer regarding unauthorized reclamation of paddy land by Sri. Thomas Chandy, who was the former Minister was interfered by the 2^nd respondent and submitted a report to the effect that there is no reclamation of paddy land made by the owners of Lake Resort. It is also the submission of the petitioner that, it was found by the 2^nd respondent that there is no reason to order for the restoration of reclaimed land. Later, by the report dated 01.06.2018, the District Collector found that the wet land were illegally reclaimed and order restoration of the wet land, after demolishing the structures made thereon. According to the petitioner, this news is published by him. According to the petitioner, even if the entire allegations are accepted, no offence is made out.

5. The Public Prosecutor submitted that the contentions raised by the petitioner are all matters of evidence and the petitioner may be directed to face trial. The counsel appearing for the 2^nd respondent also supported the contentions of the Public Prosecutor.

6. This Court considered the contentions of the petitioner and the respondents. One of the offence alleged is under Section 500 IPC . The police filed final report alleging offence under and the learned Magistrate took cognizance based on the final report submitted by the police. Section 199 (1) Cr.P.C says that, no Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code , 1860 except on a complaint made by some person aggrieved by the offence. Admittedly, the offence under will come in Chapter XXI of the . In such circumstances, the police cannot file a final report against the petitioner alleging offence under because of the bar in Section 199 (1) of the Cr.P.C. Therefore, taking cognizance based on a final report filed by the police under is illegal and barred under Section 199 (1) Cr.P.C.

7. The next contention raised by the petitioner is that the offence under Section 120 (o) of the Kerala Polic