Crl.MC.No.3360/2019 (James Jose v. State of Kerala)

CR ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 17TH DAY OF MAY 2019 / 27TH VAISAKHA, 1941** ## **Crl.MC.No. 3360 of 2019** **AGAINST THE FINAL REPORT IN CC 1602/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ERNAKULAM IN CRIME NO.2840/2017 OF ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **JAMES JOSE, AGED 56 YEARS, S/O. JOSEPH.K.C., KATTEKAYAM HOUSE, 14TH CROSS ROAD, PANAMPILLY NAGAR, ERNAKULAM VILLAGE 682 036.** **BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SMT.SUZANNE KURIAN SRI.ENOCH DAVID SIMON JOEL SRI.GEORGE A.CHERIAN SRI.LEO LUKOSE SRI.PAUL JACOB (P) SRI.RONY JOSE** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (THROUGH THE SUB INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION, KOCHI CITY).** **ADV. SMT. KK SHEEBA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.3360/2019** **2** ## **O R D E R** The petitioner challenges Annexure A2, final report filed against him alleging offences punishable under Sections 294(b) and 506(1) of the Indian Penal Code and Section 120(o) of the Kerala Police Act. 2. The case of the petitioner is as follows: The de facto complainant, who was an employee in the company run by the petitioner, could not perform well in the company and therefore, is having no other option than terminating him from service after complying with all the legal requirements. However, it led to an animosity towards the petitioner. He started filing fictitious complaints against the petitioner and the petitioner's company. As a result of the animosity, an FIR was lodged against the petitioner by the de facto complainant on 04.10.2017 alleging that the petitioner called the de facto complainant over the mobile phone on 30.09.2017 and verbally abused him and also intimidated and threatened him. Accordingly, Annexure A1 FIR in Crime was registered under Sections 294(b) and 506(i) of IPC and **Crl.MC.No.3360/2019** **3** Section 120(o) of the Kerala Police Act. On the strength of Annexure A1, the Police filed a final report before the Judicial First Class Magistrate Court-II, Ernakulam. 3. Section 294(b) of IPC reads thus: “294. Obscene acts and songs.-- Whoever, to the annoyance of others--(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.” 4. In order to secure a conviction, the provisions of Section 294 of IPC require two particulars to be proved by the prosecution, namely (i) the offender has done any obscene act in any public place or has sung, recited or uttered any obscene song or word in or near any public place; and (ii) has so caused annoyance to others. If the act is not obscene, or is not done in any public place, or the song recited or uttered in or near any public place or that it causes no annoyance to others, no offence is committed. 5. The learned counsel for the petitioner contended that Annexure A2 final report is an abuse of process of court and proceeding with the same would be a waste of precious judicial time as the same is bound to end up in an acquittal, **Crl.MC.No.3360/2019** **4** that the final report would show that the allegations are inherently false and too trivial for a prosecution to be lodged, and that none of the ingredients of the offences alleged are present in the final report. The de facto complainant died on 17.02.2019. According to the learned counsel, the proceedings initiated against the petitioner is unsustainable. He has relied on the decision in **Preethimon v** _**.**_ **State of Kerala (2008 (2) KLT 666)** , wherein it is held that a vague or general statement in the FIR that the accused uttered obscene words is not enough to constitute an offence under Section 294(b) of the IPC and that it is necessary to state the words uttered by the accused. 6. On a perusal of Annexure A2, it would reveal that none of the ingredients under Section 294(b) of the Indian Penal Code is attracted. The vague allegation or general statement that there was utterance of obscene words in the FIR is not enough to constitute an offence under Section 294(b) of the Indian Penal Code. In order to attract Section 294(b) IPC, the place of occurrence should be a “public place” or near a “public place”. The allegation against the petitioner is **Crl.MC.No.3360/2019** **5** that he has threatened the victim and uttered obscene words by using mobile phone and that will not tantamount to prove that he called obscene words in a public place or near a public place. So, the ingredients as contemplated under Section 294(b) of the IPC is not attracted. The same view has been reiterated in _**Pawan Kumar v. State of Haryana**_ [(1996) 4 SCC 17]. The learned counsel has also relied on the decisions in _**Dhanisha v. Rakhi N. Raj**_ [2012(2) KLT 55] and _**P.T. Chacko v. Nainan Chacko**_ [1967 KLT 799]. 7. As far as the offences under Section 506(1) of the IPC and 120 (o) of the Police Act are concerned, they are noncognizable offences. As per Section 155(2) of the Cr.P.C., no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. 8. In the instant case knowingly the FIR was registered for offences under Sections 506(1) and 120(o) of the Kerala Police Act and investigation was completed and charge sheet was laid. Then, I am constrained to hold that the investigation was hit by Section 155(2) of the Cr.P.C., it is **Crl.MC.No.3360/2019** **6** necessarily mean that, no Police Officer could investigate with the offence in question nor submit a report on which the question of taking cognizance would have arisen. As per proviso to section 2(d) of the Cr.P.C., police is initiated to submit, after investigation, a report relating to non-cognizable offences in which case such report is to be treated as a complaint of the Police Officer concerned. But that explanation is not applicable in this case as if relates to a case where the Police initiated investigation into a cognizable offence. The Police has filed a charge sheet against the petitioner under Sections 294(b) and 506(1) of the IPC and Section 120(o) of the KP Act. The police ought to have followed the procedure contemplated under Section 155 of the Cr.P.C.. However, the police have registered the case and laid charge sheet. Now the question is whether the Act of investigating officer is legally sustainable. As has already been held, Section 294(b) is not attracted. The offences under Section 506(1) of the IPC and 120(o) of the KP Act are non-cognizable offences and the charge sheet filed against the petitioner by the police is without the order of a Magistrate having power to try such **Crl.MC.No.3360/2019** **7** case or commit the case for trial. The investigation without permission of the Magistrate is hit by Section 155(2) of Cr.P.C.. Hence the proceeding against the accused herein to be quashed. In the result this Criminal MC is allowed and all further proceedings in CC.No.1602 of 2018 on the file of the Judicial First Class Magistrate's Court-II, Ernakulam is hereby quashed. **Sd/-** **ANNIE JOHN, JUDGE** YKB **Crl.MC.No.3360/2019** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO. 2840/2017 ON THE FILES OF ERNAKULAM CENTRAL POLICE STATION.** **ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT IN CC. 1602/2018 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ERNAKULAM.** ## **RESPONDENT'S/S EXHIBITS:** ## **NIL** ## **//TRUE COPY//** YKB **PA TO JUDGE**