JITHIN Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioner herein was given summons from the Court of the Judicial First Class Magistrate-II, Hosdurg under S. 120(d) of the Kerala Police Act in a petty case filed by the police, as S.T.C. No. 3314/2013. On coming to know that a warrant is pending, the revision petitioner filed C.M.P. No. 1407/2014 to drop the proceedings on two grounds. The first ground is that the police is incompetent to submit a final report in a non cognizable case, and the second ground is that the allegation against the petitioner will not constitute the offence punishable under S. 120(d) of the Kerala Police Act. That application was dismissed by the learned Magistrate by Order dated 26.2.2014. The said Order is under challenge in this Revision Petition. On hearing the learned counsel for the revision petitioner and on a perusal of the case records I find that the said prosecution cannot proceed under the law. The allegation against the revision petitioner is that without the permission of the K.S.E.B. he exhibited a flex board on an electric post at Nileshwar. Just hanging a poster or flex board on an electric post will not constitute the offence punishable under S. 120(d) of the Kerala Police Act. For a prosecution under the said section there must be a definite allegation that any wall, building or other structure was seen defaced in any manner, without the prior permission of the custodian of the property. Here it is not known whether the K.S.E.B. has made any complaint, or how the police could find out that it was without the permission of the K.S.E.B. The expression 'other structures' must be read along with the words 'walls and buildings'. In Manuel v. State of Kerala, 2012 4 KerLT 708 this Court held that affixing a poster on a wall will not constitute the offence punishable under S. 120(d) of the Kerala Police Act. I find that the prosecution against the revision petitioner under S. 120(d) of the Kerala Police Act, is unsustainable, and the prosecution can be dropped.

(2.) There is no final report in this case, as meant under S. 173 Cr.P.C. What is filed by the police is only a petty case complaint. This is not a case of final report filed by the police after investigation on an F.I.R. Anyway, I find that the allegations will not constitute the offence under S. 120(d) of the Police Act. I am inclined to pass orders closing the proceedings against the revision petitioner.