Sanchayita Lahkar

The High Court of Kerala Single Bench of Justice V.G. Arun held that the petitioner’s conduct, though deplorable, could not attract criminal liability in the absence of a specific legal provision criminalising the act. The court quashed the criminal proceedings initiated against the petitioner, noting that the alleged conduct did not meet the statutory requirements for the offences charged. The court directed that all further proceedings before the Judicial First-Class Magistrate-I, Aluva, be set aside, thereby terminating the prosecution.

The petitioner faced prosecution in connection with Crime No.944 of 2023 registered at Edathala Police Station, Ernakulam, for offences punishable under Sections 153 and 426 of the Indian Penal Code (IPC). The prosecution alleged that on 21 December 2023, at about 4:30 p.m., during preparations for Christmas celebrations at the Bharata Mata School of Legal Studies, the petitioner, then a student of the institution, placed a pair of cooling glasses over the nose and a Christmas wreath around the neck of a statue of Mahatma Gandhi situated within the campus. It was further alleged that the petitioner remarked that Gandhi was long dead. The act was video-recorded and posted in a WhatsApp group of students, leading to discontent and complaints to the college principal.

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As a result of the incident, the petitioner was suspended from college for five days and required to pay a fine of Rs.5,000 to the Kerala State Legal Services Authority. Subsequently, a criminal case was registered, invoking Sections 153 (wantonly giving provocation with intent to cause riot) and 426 (mischief) of the IPC.

Counsel for the petitioner, Adv. S. Rajeev, admitted that the conduct was unjustifiable but argued that it could not result in criminal prosecution. He submitted that for Section 153 to apply, the conduct must be not only malignant or wanton but also illegal, meaning prohibited by law. He pointed out that no central or state law prescribes punishment for defiling statues of Mahatma Gandhi, although a private bill to that effect had been proposed but not passed by Parliament.

Regarding Section 426, counsel argued that the essential ingredient of “mischief” under Section 425 IPC requires intent to cause or knowledge of likely wrongful loss or damage, resulting in destruction, damage, diminution in value, or injurious effect on the property. He submitted that the petitioner’s act caused no such consequences. It was further argued that since Section 426 is a non-cognisable offence, if the Section 153 charge was unsustainable, the entire registration of the case would be invalid under Section 155 CrPC. Reliance was placed on the Supreme Court decision in B.N. John v. State of U.P. and Another [2025 SCC OnLine SC 7].

The petitioner also submitted that the act was not premeditated but done impulsively, and that he had immediately removed the glasses and wreath upon realising his mistake. His counsel sought a lenient view in light of his young age.

The Public Prosecutor, Adv. M.C. Ashi, maintained that whether the act was wanton or malignant and intended to cause damage should be determined based on evidence at trial, and it was inappropriate for the High Court to intervene under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Counsel for the third respondent, Adv. Hashim K.M., contended that the act caused a riotous situation due to widespread discontent among students, thereby attracting Section 153 IPC, and no leniency should be shown in such cases.

Justice V.G. Arun recorded that "the conduct of the petitioner is deplorable and he should have known that the rights and freedom guaranteed by the Constitution ought to be tempered and moulded by the fundamental duties cast upon him." The court noted that Article 51A of the Constitution imposes a duty to respect national ideals, including those embodied by freedom fighters like Mahatma Gandhi.

However, the court stated that "for the alleged act to fall within the ambit of Section 153 of IPC, apart from being malignant or wanton, it should also be illegal." The judgment distinguished between immoral and illegal acts, observing that "illegal acts are behaviours or actions explicitly prohibited by law, enforceable by the State, and subject to legal penalties like fines or imprisonment... even the Prevention of Insults to National Honour Act, 1971 does not contain any provision against defilement of the images/statues of our national leaders."

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Applying the principle of legality, the court observed: "Nullum crimen sine lege, meaning 'no crime without law', is fundamental to criminal law... while the objectionable conduct of the petitioner is undoubtedly immoral, it cannot be termed as illegal in the absence of a law preventing and prescribing punishment for such act."

Regarding Section 426 IPC, the court noted that "the act did not result in any of the situations enumerated in Section 425 of IPC," and thus could not constitute the offence of mischief. The court observed that hurt sentiments do not satisfy the statutory requirements of mischief.

The court allowed the criminal miscellaneous case. It directed that Annexure II final report and all further proceedings in C.C.No.491 of 2024 pending before the Judicial First-Class Magistrate-I, Aluva, be quashed.

Advocates Representing the Parties

For the Petitioner: Adv. S. Rajeev, Adv. V.V. Vinay, Adv. M.S. Aneer, Adv. Dipa V., Adv. Sarath K.P., Adv. Anilkumar C.R., Adv. K.S. Kiran Krishnan

For the Respondents: Adv. Hashim K.M., Adv. Jithin Alexander Sunny, Adv. Mohammed Ashraf, Adv. Aasif Muhammed P.M., Adv. M.C. Ashi (Senior Public Prosecutor)

Case Title: Adv. Adeen Nazar v. State of Kerala & Others

Neutral Citation: 2025: KER:57179

Case Number: Crl.M.C.No.10891 of 2024

Bench: Justice V.G. Arun