Crl.M.C.No.3479 of 2009 and Crl.M.C.No.4282 of 2010 (High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932** **Crl.MC.No. 3479 of 2009()** **-------------------------** **(C.C.668/09 OF JUDICIAL 1ST CLASS MAGISTRATE COURT-III, NEYYATTINKARA) -------** ## **PETITIONER/ACCUSED 1 TO 3 AND 5 TO 15.** **---------------------------------------------------------------** **1. S.V.SHIBU, S/O.SATHYARAJ, VIMALA BHAVAN, PUNAKODE, CHEMBUR DESOM, KIZHAROOR VILLAGE.** **2. C.POULOSE, S/O.CHELLAYYAN, LUCY BHAVAN, PUNAKODE, CHEMBUR DESOM, KIZHAROOR VILLAGE.** **3. R.STEWART JOHN, S/O.RAJAYYAN, UDAYA BHAVAN, UDAYANKAVU KIZHAKKUMKARA, CHEMBUR DESOM.** **4. J.CHRISTUDAS, S/O.JESAYYAN, ASHISHAM, PUNAKODE, CHEMBUR DESOM.** **5. BAIJU JOSEPH, S/O.SAHAYADAS, LIGIN NIVAS, PUNAKODE, CHEMBUR DESOM.** **6. C.SATHYANESAN, S/O.CHELLAYYAN, KRIPA HOUSE, VALIYAVILAPURAM, KOZHAROOR VILLAGE.** **7. JAPAL SINGH, S/O.NAGAMANI, BEULA MANDIRAM, VALIYAVAZHI, CHILAMBARA DESOM, KIZHAROOR VILLAGE.** **8. PEARSON, S/O.WILSON, GRACE BHAVAN, PUTHUVAL, CHEMBUR DESOM, KIZHAROOR VILLAGE.** **9. JOHN VINCENT, S/O.CHELLAYYAN,** - **J.L.TENT, KATTODE, CHEMBUR DESOM, KIZHAROOR VILLAGE.** **Crl.MC.No. 3479 of 2009() -----------------------------------** **10. J.STEPHEN CHRISTOPHER, S/O.JESSAYYAN, LEGI BHAVAN, THERIYIL, CHEMBUR DESOM, KIZHAROOR VILLAGE.** **11. GODWIN, S/O.YESUDASAN, THUTHIKKAT HOUSE, CHEMBUR DESOM, KIZHAROOR VILLAGE.** **12. BIBIN KUMAR @ REJI, S/O.BOBAN BAI, POTTAKUZHI HOUSE, CHEMBUR DESOM, KIZHAROOR VILLAGE.** **13. CRYSTAL VALSALAM, S/O.VALSALAM, BETHEL, PUNAKODE, CHEMBUR DESOM.** **14. SELVAN SINGH, S/O.NAGAMANI, BEULA MANDIRAM, VALIYAVZHI, KIZHAROOR VILLAGE.** **BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENTS/STATE AND COMPLAINANT** **-------------------------------------------------------------** **1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. SASIDHARN,** **S/O.CHELLAN NADAR, ANITHA BHVAN, PLAMPAZHINHI, OTTASEKHARAMANGALAM VILLAGE, NEYYATTINKARA.** **BY PUBLIC PROSECUTOR, SMT.M.K.PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/01/2011, ALONG WITH CRL.MC.4282/2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VK** ## **THOMAS P JOSEPH, J.** **----------------------------------------** **Crl.M.C.Nos.3479 of 2009 and 4282 of 2010** **--------------------------------------Dated this 25[th] day of January, 2011** ## **ORDER** These petitions being connected, are disposed of by a common order. referring to the parties as in Crl.M.C.No.3479 of 2009 for convenience. The alleged incident occurred in the compound of CSI Church, Arayankode on 20.01.2009 at about 11.30a.m. Respondent No.2 (in Crl.M.C.No.3479 of 2009) is alleged to have criminally intimidated the Parish Priest and used obscene words at him on the said day, time and place. Petitioners in Crl.M.C.No.3479 of 2009 preferred a complaint against respondent No.2 to the local police alleging that respondent No.2 committed the said offences. Based on the complaint the police registered Crime No.219 of 2009 against respondent No.2 for offences punishable under Secs. 447, 323, 294(b) and 506(2) of the Indian Penal Code. After investigation, the police submitted final report in the said case alleging that respondent No.2 committed offences punishable under Secs. 294(b) and 506(2) of the Penal Code. Learned Judicial First Class Magistrate, Neyyattinkara took cognizance for the said offences and filed C.C.No.752 of 2009. In the meantime, respondent No.2 (in Crl.M.C.Nos.3479 of 2009 and 4282 of 2010 -: 2 :- Crl.M.C.No.3479 of 2010) has filed a private complaint against petitioners in the court of learned Judicial First Class MagistrateII, Neyyattinakra alleging offences punishable under Sec.500 of the Indian Penal Code. His case is that petitioners with intend to lower his reputation as a member of the society made frivolous complaint against him to the police. Learned Magistrate after enquiry under the Code of Criminal Procedure (for short, "the Code”) has taken cognizance for the said offence and filed C.C.No.668 of 2009 against petitioners. Petitioners seek to quash proceedings against them in C.C.No.668 of 2009 contending that even if the entire allegations are accepted that does not amount to the offence punishable under Sec.500 of the Penal Code. It is contended that a copy of the petition allegedly preferred by petitioners to the police is not appended to the complaint and hence the complaint is not maintainable. Respondent No.2 has filed Crl.M.C.No.4282 of 2010 contending that the final report, cognizance taken and the proceedings against him in C.C.No.752 of 2009 are invalid and that no offence as alleged has been made. 2. I have heard learned counsel on both sides and the learned Public Prosecutor. Learned counsel for petitioner (Crl.M.C.No.3479 of 2010) apart from the above said contentions also stated that the witnesses examined by respondent No.2 in Crl.M.C.Nos.3479 of 2009 and 4282 of 2010 -: 3 :- the preliminary enquiry did not say that in their estimation reputation of respondent No.2 was lowered in which case no offence punishable under Sec.499 of the Penal Code is made out. Learned counsel for respondent No.2 while contending that the complaint is maintainable, would contend that the final report against respondent No.2 in Crime No.219 of 2010 and proceedings in C.C.No.752 of 2009 cannot be sustained for the reason that neither of the offences punishable under Secs.294(b) and 506(2) of the IPC is made out. Learned counsel contended that the alleged obscene words are not stated either in the final report or in the statement of any of the witnesses for prosecution. Since the alleged incident occurred in the compound of the Church that place cannot be said to be a 'public place' as understood in under Sec. 294(b) of the Penal Code. Contention is that the words allegedly spoken by respondent No.2 is not sufficient to attract that offence. 3. I shall refer to the arguments addressed by learned counsel for petitioners in Crl.M.C.No.3479 of 2010. It is true that a copy of the petition allegedly preferred by petitioners to the police is not appended to the complaint. But I find from Annexure-I, complaint that the gist of allegations in the petition is extracted in the said complaint. That is sufficient compliance of Crl.M.C.Nos.3479 of 2009 and 4282 of 2010 -: 4 :- the requirement. 4. Then the next argument is that the statement of witnesses do not say that in their estimation reputation of petitioner is lowered. Statement of witnesses recorded by the Magistrate has to be taken along with the averments in the complaint for taking cognizance. There are sufficient averments in the complaint and along with the statement of witnesses in my view are sufficient to take cognizance for offences punishable under Sec.500 of the Penal Code. Hence challenge to cognizance taken by the learned Judicial First Class Magistrate-III, Neyyattinkara in C.C.No.668 of 2009 has to fail. 5. So far as the argument of respondent No.2 (petitioner in Crl.M.C.No.4282 of 2010) is concerned, it is not necessary to attract Sec.294(b) of the Code that obscene words are uttered at a public place. It is sufficient that uttering of obscene words near a public place. I am not going into the question whether the compound where the alleged incident occurred is by itself a public place. Even as per the records in C.C.No.752 of 2009 the Church compound is situated adjoining the public road and as per Sec.294(b) it is sufficient that obscene words are uttered at or near the public place. Hence prima facie the argument cannot stand. Crl.M.C.Nos.3479 of 2009 and 4282 of 2010 -: 5 :- 6. It is then argued that so far as alleged obscene words are not stated either in the final report or statement of witnesses, cognizance taken for that offence cannot stand. Learned Public Prosecutor after perusal of case diary has stated that the statement of witnesses do not mention the words allegedly spoken by respondent No.2 (petitioner in Crl.M.C.No.4282 of 2010). What exactly is “obscene” words has been held in **P.T Chacko Vs. Nainan Chacko (1967 KLT 799)** and **CHACKO GEORGE v. STATE OF KERALA (1968 KLT 219)** . It is held 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. Hence to be a “obscene” the word allegedly uttered by respondent No.2 must pass the above test. Unfortunately, as stated above words allegedly uttered by respondent No.2 does not find place in the records of the final report in Crime No.219 of 2010. In such a situation, evidence cannot be allowed to improve the case at the time of trial. Such a situation was considered by this court in **Preethimon v. State of Kerala** ( **2008(2) KLT 666** ). There, a vague or general statement in the FIR that the accused showered obscene words was held not sufficient to constitute offence under S.294(b). Crl.M.C.Nos.3479 of 2009 and 4282 of 2010 -: 6 :- 7. So far as offence punishable under Sec.506(2) of the Code is concerned I have gone through the records and find that there are sufficient allegations to support that offence. Resultantly these petitions are disposed of in the following lines. (i) Crl.M.C.No.4282 of 2010 is allowed in part. The final report in Crime No.219 of 2009 of Arayankode Police Station and cognizance taken in C.C.No.752 of 2009 of the court of learned Judicial First Class Magistrate, Neyyattinkara to the extent if concerned offence punishable under Sec.294(b) of the Penal Code are quashed. (ii) Crl.M.C.No.3479 of 2009 is dismissed. Petitioners therein are granted three weeks' time from this day to appear in the court concerned and seek regular bail. The coercive steps issued against petitioners will stand in abeyance during the said period of three weeks. ## **(THOMAS P JOSEPH, JUDGE)** Sbna/- /True Copy/ P.A to Judge