Ajay Ashok and Vishnu v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 ``` ``` CRL.MC NO. 5208 OF 2022 ``` ``` CRIME NO.509/2018 OF Cantonment Police Station, Thiruvananthapuram [CC NO.768/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS - ``` ## `III,THIRUVANANTHAPURAM` ## `PETITIONERS/A1 AND A2` ``` 1AJAY ASHOK AGED 29 YEARS S/O. ASHOK KUMAR, ARA-39 A, T.C.91/2304, KARIKKAKOM WARD, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM DISTRICT., PIN - 695029 2VISHNU AGED 24 YEARS S/O. RAJASEKHAR, AMBIKA SADANAM, CHUVADUTHANGI, MUDAPURAM DESOM, KEEZHUVILAM VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT., PIN – 695104 ``` ``` BY ADV SHAJIN S.HAMEED ``` ## `RESPONDENT/S:` ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM., PIN – 682031 SMT. SREEJA V., SR.PP ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.01.2024, THE COURT ON 15.01.2024 PASSED THE FOLLOWING: ``` CRL.MC No.5208/2022 2 ## **O R D E R** The petitioners are accused Nos.1 and 2 in C.C.No.768/2018 on the file of the Judicial First Class Magistrate Court-III, Thiruvananthapuram. 2. Initially, the crime was registered against the petitioners by the Museum Police Station as Crime No.414/2018, alleging offences punishable under sections 294(b) and 279 r/w. Section 34 of the Indian Penal Code (IPC), Section 117(e) of the Kerala Police Act and under Sections 129, 115 and 177 of the Motor Vehicles Act. After registration of the said crime, FIR and the connected records were transmitted to the Cantonment Police Station as it was found that the place of occurrence was within the jurisdiction of the said police station. 3. Accordingly, the said FIR was re-registered by the Cantonment Police as Crime No.509/2018 for the offences referred to above. After completing the investigation, Annexure-D final report was submitted by the Police before the Judicial First Class Magistrate CourtIII, Thiruvananthapuram and the cognizance thereon was taken as C.C.No.768/2018. 4. The allegations raised against the petitioners are as follows: On 13.04.2018 at 12.35 a.m., while the defacto complainant, a CRL.MC No.5208/2022 3 police officer, was checking the vehicles at the Bakery Junction, Thiruvananthapuram, as part of his official duties, he found the accused persons travelling on a motorcycle towards Palayam. They were riding the motorcycle at excessive speed without wearing helmets. They were asked to stop the vehicle and to produce the records for verification. Thereupon, it was found that, there was no pollution certificate. Therefore, they were asked to pay a fine for not wearing helmets and the other irregularities found. However, the 1[st] accused, the person who was riding the motorcycle, hurled abuses and quarrelled with the Sub Inspector of Police by uttering abusive words. They also refused to pay a fine, and thereby, they obstructed the official duty of the defacto complainant. The crime was registered in such circumstances. This Crl.M.C. was filed by the petitioners for quashing all further proceedings pursuant to the Annexure-D final report submitted against them. 5. Heard Sri. Shajin S.Hameed, the learned counsel appearing for the petitioners and Smt. Sreeja V., the learned Senior Public Prosecutor for the State. 6. The learned counsel for the petitioners submits that, they are innocent of all the allegations and that they were falsely implicated in this case because, the petitioners did not heed to the demand of the defacto complainant to pay the amount demanded by him. It was CRL.MC No.5208/2022 4 further contended that none of the offences would be attracted even if all the allegations against the petitioners were accepted for its face value. 7. The learned Public Prosecutor, on the other hand, opposes the contentions raised by the petitioners by pointing out that the contentions raised by the petitioners are matters to be considered during the course of the trial, being questions of fact. Therefore, the dismissal of the Crl.M.C. was sought. 8. I have carefully gone through the records. The first contention raised by the learned counsel for the petitioners is concerning the offence under section 294(b) of IPC. As per the allegations, when the petitioners were asked to stop the vehicle by the defacto complainant, the person who was riding the motorcycle threatened the defacto complainant and humiliated him by using abusive words. The words used/extracted in the FIS are as follows: “fine അടയ്ക്കാൻസൗകര്യമില്ലെടാമൈരേ നിനകകവല്ലതുംചെയ്യാനുണ്ടെ ങ്കിൽ പോയിചെയ്യടാമൈരേ " The specific contentions raised by the learned counsel for the petitioners is that the said words would not attract the offence under section 294(b) of IPC. The learned counsel for the petitioners also places reliance upon the decisions rendered by this Court in CRL.MC No.5208/2022 5 **Latheef v. State of Kerala [2014(2)KLT 987]** , **Sajan C.K. v. State of Kerala and Another [2019(2)KLD 172] and Sangeetha Lakshmana v. State of Kerala [2008(2)KLT 745].** 9. The position of law in this regard is well settled as per a series of the decisions rendered by this Court. In **P.T.Chacko v. Nainan Chacko [1967 KLT 799]** , it was held by this Court that the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences. The said decision was followed in **Sangeetha Lakshmana’s case** (supra), wherein it was held that, in order to satisfy the test of ‘obscenity’, the words spoken must be capable of arousing sexually impure thoughts in the minds of hearers. In the said case, the impact of calling a person ‘rascal’ was considered, and it was held that the said word would not attract the offence under Section 294(b)IPC. In **Latheef’s** case (supra), this Court took a similar view after following **P.T.Chacko and Sangeetha Lakshmana’s** cases (supra), and it was held that, every abusive word or every humiliating word by itself cannot be said to be obscene as defined under the IPC. It was observed that, even though the term ‘obscenity’ is not defined under section 294 of the IPC, the meaning given to the said term in section 292 of the IPC, has to be adopted while deciding the question CRL.MC No.5208/2022 6 relating to the offence under section 294(b)of the IPC. Therefore, unless the words used were of such nature that it is capable of arousing sexually impure thoughts in the minds of hearers, the offence would not be attracted. 10. In **Sajan C.K.’** s case (supra), a similar question came up for consideration where the word used was referring to the female sexual organ. Even though these decisions were followed and the proceedings were quashed, the quashing of the proceedings was not solely on the said question alone. The sequence of events which led to the incident was taken into consideration, and after an overall consideration of the materials therein, this Court came to the finding that the proceedings thereon were a clear abuse of the process of law and, therefore, interference was warranted under section 482 Cr. PC. 11. Regarding the facts of this case, it is to be noted that the words used by the accused are clearly mentioned in the FIS itself, and the same is reiterated by the witnesses in their statements recorded under section 161 Cr.PC. The only question that arises here, as far as the offence under section 294(b) is concerned, is whether the said words would attract the said offence. As held in the decisions referred to above, mere abusive nature of the words used is not sufficient, but the words must be of such nature that it must have the effect of CRL.MC No.5208/2022 7 depraving persons and defiling morals by sex appeal or lustful desires. In **Sangeetha Lakshmana’s** case (supra), this Court clearly observed that, in order to satisfy the test of obscenity, the words uttered must be capable of arousing sexually impure thoughts in the minds of the hearers. In this case, evidently, the word used was referring to the male sex organ, and whether such words were capable of arousing sexually impure thoughts in the minds of its hearers is a matter of evidence, mainly because, prima facie, it is a word referring to a sexual organ. To be precise, the feeling the said word evoked in the mind of the hearer, the defacto complainant, is a matter to be examined during the course of the trial, as the word prima facie refers to the sexual organ. As regards the decision referred to by the petitioners, i.e. **Latheef’s** case and **Sangeetha Lakshmana’s** case (supra), the words used did not refer to any sexual organs. In **Sajan C.K’s** case (supra), even though the words used referred to a sexual organ, the decision to quash the proceedings was not solely based on the said contention but considering the sequence of events which led to the incident as well. Hence, the said decision cannot be relied on in this case. Therefore, I am of the view that, in the light of the above observation, the contention of the petitioners cannot be accepted at this stage, and it is a matter to be examined during the course of trial. CRL.MC No.5208/2022 8 12. The next contention raised by the petitioners is with respect to the offence under section 279 of IPC. It was contended that, there was no allegation in the final report that the accused persons drove the motorcycle in a public way in a rash or negligent manner so as to endanger human life, or in such a manner likely to cause hurt or injury to any other person. Hence, the offence would not be attracted. However, on carefully going through the contents of the FIR and the final report, it can be seen that there is a specific allegation that, at the relevant time, the petitioners were riding the motorcycle at excessive speed and in a dangerous manner. Even though the expressions “to endanger human life”, or “likely to cause hurt or injury to any other person” are not specifically mentioned in the final report, mere omission of the said words alone cannot be taken as a ground to quash the proceedings by holding that, the offence would not be attracted. To decide the said question, the contents of the FIR and the final report have to be read as a whole. When doing such an exercise, it can be seen that the expression used in the said records would convey an idea that is in tune with the contents of the offence under section 279 IPC. Therefore, I do not find any scope for interference in the said proceedings on that ground at this juncture, and this is also a matter to be decided during the trial. CRL.MC No.5208/2022 9 13. Another contention raised by the learned counsel for the petitioners is that the offence under section 117(e) of the Kerala Police Act would not be attracted. It was contended that, in order to make out the said offence, there should be materials to show that the accused persons, with the manifest intention to prevent the police officer from discharging from his official duty, caused obstruction, threat or assault. In this case, it is specifically mentioned in the final report, as well as the statements of the witnesses, that the accused persons have threatened and abused the defacto complainant and thereby obstructed their official duties. Therefore, I find that when the contents of the final report are considered as a whole, there are ample materials to make out the offence under section 117(e). Here also, the said aspect is something which is to be established during the course of the trial. 14. Thus, after considering all the relevant aspects, I am of the view that, the contentions raised by the petitioners are not legally sustainable and under no circumstances, the same would justify the invocation of the inherent powers of this Court under Section 482 Cr.PC. In such circumstances, I do not find any merit in the Crl. M.C., and accordingly, it is dismissed. However, it is clarified that all the observations made by this Court in this order were with the sole intention of finding out whether there is any scope for interference CRL.MC No.5208/2022 10 under section 482 Cr.PC. It is clarified that, under no circumstances the observations of this Court shall cause any prejudice to the petitioners. The trial court shall consider the contentions raised by the petitioners untrammeled by any of the observations made in this order. **Sd/ZIYAD RAHMAN A.A. JUDGE** pkk CRL.MC No.5208/2022 11 ## **APPENDIX OF CRL.MC 5208/2022** PETITIONERS’ ANNEXURES ANNEXURE-A PHOTOCOPY OF THE FIR IN CRIME NO.414/2018 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM DISTRICT. ANNEXURE-B PHOTOCOPY OF THE FIR IN CRIME NO.509/2018 OF CANTONMENT POLICE STATION, THIRUVANANTHAPURAM DISTRICT. ANNEXURE-C PHOTOCOPY OF THE REPORT SUBMITTED BY THE SUB INSPECTOR OF POLICE, CANTONMENT POLICE STATION BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE COURT-III, THIRUVANANTHAPURAM. ANNEXURE-D CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.509/2018 OF CANTONMENT POLICE STATION.