S.153 IPC | Expression 'Malignantly' Or 'Wantonly' Giving Provocation With Intent To Cause Riot Indicates Higher Degree Of Malice: Kerala High Court

The Kerala High Court recently explained the scope and extent of Section 153 of the Indian Penal Code, 1860 which refers to the offence done malignantly or wantonly to give provocation to the extent of causing a riot.

The Single Judge Bench of Justice Bechu Kurian Thomas elucidated that the presence of the two expressions, 'malignantly' or 'wantonly' in the provision indicates that there ought to be a higher degree of malice or evil that is projected or evident in the act alleged.

The bench was dealing with the case of a 45-yr-old accused of editing the words in a board kept in honour of deceased former Home Minister of Kerala, Kodiyeri Balakrishnan, and defaming him. Accused was booked under Section 153 IPC and Section 120(o) of the Kerala Police Act, 2011. Through the present petition he sought quashing of FIR.

At the outset, the Court discerned the ingredients of Section 153 IPC as follows: i. the accused did an illegal act; ii. the act was done malignantly or wantonly; and iii. the act was done with the intention to provoke or knowing that it will provoke a person to cause the offence of rioting.

Thus, taking note that the edited word merely referred to a food article and could not be said to be defamatory in any manner, the Court observed:

"If the act done by the accused is not ex facie illegal, however wanton or deplorable or undesirable or done with malice, unless the act by itself is an offence, it cannot be held to satisfy the penal provisions of Section 153 IPC. The word 'വട' ('Vada') is not a defamatory term and the use of the said term in the context cannot be said to be defamatory. The word 'വട' in the Malayalam language merely refers to a food article and cannot be termed as a defaming word even in combination with other words. Therefore the act alleged cannot be termed to be illegal". 

It was argued by the counsels for petitioner-accused that the offences alleged are not made out and the FIR itself was an abuse of the process of the court. It was contended that even if the allegations in the FIR were to be admitted, it would not make out an offence done malignantly or wantonly or anything which is illegal or to give provocation to the extent of causing a riot and hence the prosecution was liable to be quashed. 

The Public Prosecutor Noushad K.A. argued that the Court ought not to interfere at this stage since the matter was under investigation. It was also urged that the FIR revealed that the edited statement by the petitioner accused clearly amounted to defamation, and the inherent power of the Court under Section 482 Cr.P.C. ought not to be invoked. 

The Court thus found that apart from requiring a higher degree of malice or evil that is projected or evident in the act alleged, Section 153 IPC also requires the act done to be illegal, both of which could not be found in the instant case. 

It added that in order to "bring home the guilt of the offence under Section 153 IPC, it is necessary that the act gives provocation to a person and also provoke or is likely to provoke a rioting. Though, for the offence to be attracted, actual rioting need not occur". It found that the alleged act of the accused herein would not cause a provocation, which could result in rioting, and thus the offence under Section 153 would not lie against the petitioner-accused. 

As to the question whether the offence under Section 120(o) of the Police Act would be attracted in the present case, the Court ascertained that the essential ingredient of the provision was whether a person causes nuisance of himself to any other person through a means of communication. 

Holding that the offence under Section 120(o) of the Police Act was also not made out, the Court observed that, "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 context, it is necessary to observe as mentioned earlier that the word 'വട' is not a defamatory word, nor is it a word which has a tendency to cause a nuisance". 

The Court went on to add that even if the allegations in the crime were to be admitted, the same would not make out an offence either under Section 153 IPC or under Section 120(o) of the Police Act.

"Consequently the registration of the crime is an abuse of the process of the court. Hence, FIR No. 942/2022 of Paravoor Police Station is quashed," the Court held. 

The petitioner was represented by Advocates V. John Sebastian Ralph, Roshan Shah S., Vishnumaya M.B., and Shifna Muhammed Shukkur. 

Case Title: Sanjeev S. v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 220 

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