IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

SATURDAY, THE 16TH DAY OF NOVEMBER 2019 / 25TH KARTHIKA,

1941

Crl.MC.No.7153 OF 2019(D)

CRIME NO.122/2019 OF KADAMPUZHA POLICE STATION , Malappuram

PETITIONER/ACCUSED NO.1:

SAJIDH.D

AGED 32 YEARS

S/O. JAMAL MOHAMMED, MARAKKARA, KADAMPUZHA P.O,

MALAPPURAM.

BY ADVS.

SRI.S.SREEKUMAR (SR.)

SRI.P.MARTIN JOSE

SRI.P.PRIJITH

SRI.THOMAS P.KURUVILLA

RESPONDENT:

THE STATE OF KERALA

REP. BY PUBLIC PROSECUTOR, HIGH COURT OF

KERALA, ERNAKULAM, PIN-682 031

SRI.C.S.HRITHWIK SR.PP

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION

ON 16.11.2019, THE COURT ON THE SAME DAY PASSED THE

FOLLOWING:

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“CR”

R.NARAYANA PISHARADI, J

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Crl.M.C.No.7153 of 2019

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Dated this the 16^th day of November, 2019

O R D E R

The petitioner is the first accused in the case registered as

Crime No.122/2019 of the Kadampuzha police station.

2. The offences alleged against the petitioner are

punishable under Section 153 I.P.C and Section 120(o) of the

Kerala Police Act, 2011.

3. The facts of the prosecution case are as follows: The

newspapers had reported that two children, who belonged to

socially backward class, were beaten to death by a violent mob

at a place in the State of Madhya Pradesh, for defecating in open

public place. The second accused in the case wrote about this

incident, which is said to be a poem, and he posted the same in

his facebook account. The petitioner shared the above facebook

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post with others. The de facto complainant made a complaint

(Annexure-III) to the Sub Inspector of Kadampuzha police

station regarding the above mentioned facebook post. He alleged

that the words used in the facebook post are insulting to Hindu

religion and they caused very much pain to him who professes

and practises the Hindu religion. On the basis of that complaint,

Annexure-IV first information report (FIR) was registered against

the petitioner and the second accused for the offences mentioned

above.

4. The petitioner has prayed for quashing Annexure-IV FIR

and all proceedings based on it on the ground that the

allegations contained therein do not constitute the ingredients of

the offences alleged against him.

5. Heard learned counsel for the petitioner and the learned

Public Prosecutor.

6. Section 153 of the Indian Penal Code reads as follows :

"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

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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 which may extend to six

months, or with fine, or with both."

7. The ingredients to constitute an offence under Section

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.

8. The word "illegal" is defined in Section 43 of the Indian

Penal Code as follows:

"The word "illegal" is applicable to everything which

is an offence or which is prohibited by law, or which

furnishes ground for a civil action.”

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9. The expression “malignantly" implies an act done with

malice. The expression "wantonly