Petition under Section 482 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”).
2. Petitioner is the accused in Cr.No.70 of 2011 of Railway Police Station, Ernakulam charged with offences punishable under Section 290 of the Indian Penal Code (in short, “IPC”) and Section 118(a) of the Kerala Police Act, 2011(in short, “the Act”).
3. Allegations borne out from the final report (Annexure-B) are as follows: The petitioner on 29.08.2011 travelled in Janasathabdhi Express train from Thrissur to Thiruvananthapuram. It is the allegation that he entrained from Thrissur in an inebriated condition. When the train reached near Angamaly at 6.20 p.m., the petitioner in a drunken bout lost self- control and tried to throw a laptop, kept near his seat for charging, out of the train. Then co-passengers raised an alarm and there ensued an altercation between the petitioner and other passengers on account of his unruly behaviour. It is, therefore, alleged that he was in an intoxicated state and caused public nuisance. In spite of repeated demands, initially he did not reveal his identity. Later, the Ticket Examiner found out that he is a serving Police Officer in the rank of Deputy Inspector General of Police (DIG).
4. Heard Shri S.Sreekumar, learned Senior Counsel for the petitioner and Ms.Madhu Ben, learned Public Prosecutor.
5. Shri S.Sreekumar contended that neither Annexure-A first information report (FIR) nor Annexure-B final report discloses any offence. The prosecution, therefore, is an abuse of the process of court. According to the learned Senior Counsel, in order to constitute a public nuisance, there should be a common injury, danger or annoyance to the public. Going by the allegations in Annexure-B final report, it can be seen that the petitioner unplugged the laptop from socket and attempted to throw it out from a moving train. It was prevented by co-passengers, which resulted in an altercation and a law and order problem. According to the learned Senior Counsel, these allegations are insufficient to attract an offence under Section 290 IPC. 'Public nuisance' is defined in Section 268 IPC. Learned Senior Counsel submitted that on a reading of the said Section, it could be discerned that the essential ingredient of Section 268 IPC is that the act or omission must cause any common injury, danger or annoyance to the public or to the people in general. It is contended that the case was registered suo motu and not on anyone's complaint.
6. It is further contended that Section 118(a) of the Act is also not attracted. Annexure-C, certificate of drunkenness issued by a Doctor bears testimony in support of the petitioner. It is also urged on behalf of the petitioner that mere smell of alcohol is not sufficient to hold that a person is intoxicated.
7. Per contra, learned Public Prosecutor contended that the statements of the witnesses questioned at the time of investigation would show that the petitioner was completely under the influence of alcohol when he entered the train. Thereafter, when the train reached near Angamaly, he, without any provocation, attempted to throw away a laptop placed on the seat by one of the co-passengers. When this was prevented by other passengers in the train, the petitioner made a commotion in the train. His behaviour in the train caused annoyance and disturbance to the passengers. The contention that the petitioner was not in an intoxicated condition is denied. According to the learned Prosecutor, the petitioner had been in an awfully drunken condition. Still further, the Prosecutor contended that there is no valid reason to terminate the criminal prosecution by invoking power under Section 482 Cr.P.C. as the controversy herein can be resolved only by trying the case.
8. I have carefully perused the case diary produced by the learned Prosecutor. The case unfolded from the case diary statements is that on 29.08.2011, the petitioner travelled in Janasathabdhi Express train from Thrissur to Thiruvananthapuram in C2 coach. He was occupying seat No.47. Statement given by CW1, Dr.Sony Siraj, would show that the petitioner got into the train from Thrissur railway station with the help of two persons. They virtually put him in the seat allotted to him. Thereafter he started sleeping. After some time, another passenger placed a laptop on a nearby vacant seat for charging. When the train reached near Angamaly, the petitioner demanded fellow passengers to remove the laptop. Since all the fellow passengers expressed their disconnect with the laptop, the petitioner became furious. He unplugged the laptop for throwing it out of train. Other passengers immediately reacted, resulting in a pandemonium in the train. It is also borne out from the statements in the case diary that women passengers were also travelling in the compartment at the time of incident. CW5 is the owner of the laptop. Since there was no charging point, where he was sitting in the train, he placed his laptop on a vacant seat close to the seat allotted to the petitioner. This witness also stated that the petitioner in a tipsy mood attempted to throw away his laptop without any provocation. I have perused statements of other witnesses also. All the witnesses have stated emphatically that the petitioner was in a rebellious mood and he behaved in an unruly manner under the influence of alcohol. Therefore, there is force in the contention raised by the learned Prosecutor that the merit of the matter cannot be decided without taking evidence.
9. Learned Senior Counsel relying on Narayanan Nair v. State (AIR 1952 Travancore-Cochin 239) contended that the word 'intoxication' applies only to excessive use of intoxicating liquors or drugs. There is no allegation that the petitioner was in a state of drunkenness, so that he was incapable of knowing the consequences of his action. According to the learned Senior Counsel, the petitioner unplugged the laptop and went in search of the Ticket Examiner for entrusting the same as it was uncomfortably placed. On going through the decision in Narayanan Nair's case (supra), I am of the view that there are distinguishable differences between that case and the case in hand not only in terms of law but also in facts. The Travancore-Cochin High Court was considering Section 9 of the Travancore Prohibition Act. One of the prominent differences is that in Narayanan Nair's case, the High Court was exercising revisional jurisdiction after a full-fledged trial and appeal thereon. In this case, we are at the pre-charge stage. Secondly, the provisions contained in Section 9 of the Travancore Prohibition Act prohibited finding any person in a state of intoxication in any public place and, without a permit, even in any private place. The purport of the Travancore Prohibition Act was prohibition of liquor. What is sought to be prevented by Section 290 IPC and Section 118 (a) of the Act is riotous behaviour of a person under the influence of alcohol, who is incapable of looking after himself. Therefore, the principle in the above decision cannot be straight away applied to the facts in this case.
10. Learned Senior Counsel placed much reliance on Annexure-C, certificate of drunkenness, issued by a Doctor attached to the General Hospital, Ernakulam. According to the learned Senior Counsel, the observations made by the Doctor in the certificate would show that the petitioner was a normal person at the time of examination. Merely because there is an entry in the certificate that he was smelling alcohol, it is no reason to find that the petitioner was in an intoxicated state. Further contention is that other aspects mentioned in the certificate would show that he was completely normal at the time of medical examination. One fact to be noted here is that the alleged tumultuous behaviour by the petitioner in the train happened around 6.15 p.m. on 29.08.2011 and the Doctor examined him at 9.05 p.m. on the same day. Passage of time is a factor to be reckoned in this context. Textbook of 'Medical Jurisprudence and Toxicology' by learned author Shri Modi (24th Edition - page 183) says that in order to ascertain whether a particular individual is drunk or not, a medical practitioner should bear the following points in mind:
“1. The quantity taken is no guide.
2. An aggressive odour of alcohol in the breath, loss of clearness of intellect and control of himself, an unsteady gait, a vacant look, dry and sticky lips, congested eyes, sluggish and dilated pupils, increased pulse rate, an unsteady and thick voice, talking at random and want of perception of the passage of time are the usual signs of drunkenness. However, the smell of an alcoholic drink can persist in the breath for many hours after the alcohol has been excreted from the body, as it is due to non-alcoholic constituents (congeners) in the drink.”
If one looks at Annexure-C, it can be seen that the above said aspects have been enumerated in specific columns. According to the learned author Modi, estimation of alcohol in the blood or urine is very important in medico-legal cases. Learned author further says that various factors concerned in affecting the time of maximum concentration and the quantity of alcohol found in the blood are the weight of the person, the amount and concentration of alcohol taken, whether it was taken slowly at intervals or all in one gulp, the presence or absence of food, its quality and quantity, previous addiction to alcohol and amount of rest or exercise taken. It is important to note in this context that in Annexure-C certificate, it is mentioned that the petitioner was not willing for alcohol estimation test. The contention raised by the petitioner that all other entries, except his unwillingness to undergo alcohol estimation test, should be taken as indicators to find that he was sober at the alleged time and the prosecution is an abuse of the process of court cannot be accepted at this stage.
11. Learned Senior Counsel submitted that the petitioner had been put to great ignominy as the entire print and visual media portrayed him as a problem maker. It is borne out from the case diary statements that some of the passengers from the train itself informed the issue to media and the media men assembled at the South Railway Station, Ernakulam when the train reached there. It is also seen from the case diary statements that when the train was about to be pulled out with the petitioner on board, some passengers made a hue and cry and someone pulled the chain, demanding that the petitioner should be taken out of the train. All these unpleasant things happened on account of the ire of the passengers towards the behaviour of the petitioner. Nobody can be blamed for revealing the unsophisticated, indecorous, undignified and immodest action on the part of a passenger in a train, especially when the person in the mire is a Senior Police Officer, who is a member in a class enjoined with the duty of enforcing law and order. Therefore, he was brought to public glare is not a mitigating factor to exculpate him at this stage without trial.
12. What is required to be proved in an offence under Section 290 IPC is that there was some act or illegal omission, that was done by the accused, that it caused any injury, danger or annoyance and that the said injury, etc. was common to the public or to the people in general, here, in this case, the passengers in the train. The case diary statements would reveal the specific allegation against the petitioner. Similarly offence under Section 118(a) of the Act is also prima facie revealed from the statements of the witnesses questioned at the time of investigation. However, I do not wish to make any final conclusion at this stage of the matter. The guilt or otherwise of the petitioner can be decided only after a trial. I am of the definite view that this is not a fit case to quash the final report by invoking this Court's power under Section 482 Cr.P.C.
In the result, the petition is dismissed.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
cks