The court concluded that sharing a Facebook post does not constitute offences under IPC Section 153 or Kerala Police Act Section 120(o).

O R D E R

The accused in C.C. No.594 of 2019 pending before the Judicial Magistrate of the First Class – I, Kottayam is the petitioner. He seeks to quash Annexure - II final report and all further proceedings in C.C.No.594 of 2019. The offences alleged against the petitioner in the said case are punishable under Section 153 of the Indian Penal Code , 1860 and 120(o) of the Kerala Police Act , 2011.

2. Annexure-I is the FIR in Crime No.1201 of 2019 of Kottayam East Police Station. That crime was registered on the basis of a complaint by the 2^nd respondent. The allegation was that the petitioner shared a Facebook posting which depicts a rendered nude picture and a comment which have the effect of ridiculing the Prime Minister of India and thereby to cause provocation which may result in rioting. The Sub Inspector of Police, Kottayam East Police Station after investigation made Annexure-II final report alleging commission of the aforementioned offences by the petitioner.

3. Despite receipt of notice, the 2^nd respondent did not choose to appear before the court.

4. Heard the learned counsel for the appellant and the learned Senior Public Prosecutor.

5. The Facebook posting dated 15.04.2019 which was allegedly shared by the petitioner through his account was produced along with the final report. It is a caricatured nude picture of a child with face of the Prime Minister and a comment seems to have been made by one Sri.Kamalnath, “മ ോദി നി്ᨪറു ധരി്ᨪോൻ പഠി്ᨪു്രതിനു ുമേ നനഹ്രുവുും ഇ്മിരോഗോ്യിയുും

ഉ്ᩂോ്ᨪിയതോണ് ഇᩌ᪚യൻ സൈനയനെ”. The comment is to the effect that Sri.Nehru and Smt.Indira Gandhi created the Indian army even before Sri.Modi started wearing shorts. The allegation is that the petitioner shared the posting and not that he created the same.

6. This court in Sajidh D v. State of Kerala [2019 (4)

KLT 808] explained the ingredients of the offence under Section 153 of the IPC . Paragraph No.7 of the judgment reads:

“7. The ingredients to constitute an offence under S.153 I.P.C are the following: (1) An act shall be done which is illegal (2) Such illegal act shall be done malignantly or wantonly (3) The act done shall cause provocation to some person (4) The act giving provocation should have been done (a) intending that the provocation will cause the offence of rioting to be committed or (b) knowing it to be likely that such provocation will cause the offence of rioting to be committed.”

7. It was further observed that the Facebook post in question may hurt the sentiments of people who belonged to a particular Section. But when the accused shared only the posting through his Facebook account the same would not amount to an offence under Section 153 of the IPC . In the light of the said proposition of law, the petitioner herein is not liable to be prosecuted for the offence under of the .

8. This Court inSanjeev S. v. State of Kerala [2023 (3) KHC 324] considered the scope of Section 120 (o) of the Kerala Police Act . 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 be punished on conviction. The essential ingredients of the offence under Section 120 (0) of Police Act is that a person causes nuisance of himself to any other person through a means of communication. The allegations in the FIR do not indicate that petitioner caused a nuisance of himself by posting a modified word in the WhatsApp group. In this