Crl.M.C.No.4644 of 2016

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 23RD DAY OF MAY 2019 / 2ND JYAISHTA, 1941** **Crl.MC.No. 4644 of 2016** **AGAINST THE ORDER/JUDGMENT IN CC NO.524/2015 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, MUVATTUPUZHA** **CRIME NO. 629/2015 OF MUVATTUPUZHA POLICE STATION, ERNAKULAM** ## **PETITIONER/1ST ACCUSED:** **C.K. SAJAN, S/O KURUVILA, AGED 43 YEARS, CHOONDAYIL, MEKKADAMBUKARA, VALAKOM, ERNAKULAM DISTRICT 682 316. BY ADV. SRI.PAUL K.VARGHESE** ## **RESPONDENTS/DE FACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN 682 031. 2 K.J. BABY, S/O JOSEPH, AGED 65 YEARS, KAKKANAD HOUSE, MEKKADAMBUKARA, VALAKOM, ERNAKULAM DISTRICT 682 816.** **SRI. M. S. BREEZ SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 4644 of 2016** 2 ## **ORDER** The petitioner claims to be a practicing lawyer. He has been arrayed as the 1[st] accused in C.C. No.524 of 2015 on the file of Judicial First Class Magistrate Court, Muvattupuzha. He has approached this Court seeking to quash the pending criminal proceedings. 2. Sans the details, the relevant facts need to be adverted to for considering the prayer sought for. The 2[nd] respondent is the owner of a one room building situated at Mekkadambu Panchayat. For leasing it out to a mobile phone operator, he had to carry out certain modifications. On 11.03.2015 at about 3.20 p.m, while he was overseeing the work that was being carried on, the petitioner reached the spot. He is alleged to have picked up an altercation and abused him. He then spewed out the following sentence” “...ഞാൻ പെ ണ്ണൂകേ സ്സിൽ പ്രതിയാണെ ന പലരോടും പറഞ്ഞിട എന്തായിടാ. നിനക എന്തുചെ യ്യാൻ പറ്റൂമെടാ , ഞാൻ പൂറിമോനെ വേ ണ്ടീവന്നാൽ നിന്റെ മോളേയും ചെ യ്യുമെടാ...” 3. The petitioner then took out his mobile phone and was found talking to some one. After sometime, one Rajesh arrived at the **Crl.MC.No. 4644 of 2016** 3 spot. He had a conversation with the petitioner and thereafter, he approached the de facto complainant. Rajesh then attempted to deflate the tyres of the vehicle of the 2[nd] respondent. When this was questioned, he was abused and the aforesaid Rajesh is alleged to have fisted the de facto complainant on his face. When the neighbours rushed to the spot, the 2[nd] accused is alleged to have left the place in his bike. The 2[nd] respondent states that he was removed to the hospital and had to undergo treatment. Stating these allegations, information was furnished on the strength of which, the subject crime was registered. 4. The learned counsel appearing for the petitioner submitted that as against the petitioner, the only allegation is that he had committed the offence under Section 294(b) of the IPC. According to the learned counsel, in the light of the principles laid down by a Division Bench of this Court in **Dhanisha v. Rakhi N. Raj and Another** [2012 (2) KHC 111] and that of a learned Single Judge in **Latheef v. State of Kerala** [2014 (2) KHC 604], the proceedings as against the petitioner are liable to be quashed. He would urge that in order to attract the offence under Section 294(b), the alleged words must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons and **Crl.MC.No. 4644 of 2016** 4 defiling morals by sex appeal or lustful desires. According to the learned counsel, the alleged words uttered by the petitioner, without adding or subtracting anything, will not attract the offence alleged. 5. Though notice was served on the 2[nd] respondent, he did not care to enter appearance. 6. Heard the learned Senior Public Prosecutor and I have perused the records. 7. In **Dhanisha** (supra), a Division Bench of this Court after cataloging the long line of precedents had occasion to observe that the matter charged as obscene under Section 294(b) of the IPC should tend to deprave and corrupt those whose minds are open to immoral influence arousing lustful desire or must tend to sexually impure thoughts. It was held that there is nothing in Section 294 of the IPC to hold that the word “obscene” should have a different meaning than that is made applicable to Section 292 of the IPC. In **Latheef** (supra), a learned Single Judge of this Court had occasion to observe as follows in paragraph No. 5 of the report: “Abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined under the law. Of course there is **Crl.MC.No. 4644 of 2016** 5 no doubt that the words alleged to have been used by the revision petitioner are in fact abusive and humiliating. But to make it obscene, punishable under S.294(b) IPC it must satisfy the definition of obscenity. S.294 IPC does not define obscenity. Being a continuation of the subject dealt with under S.292 IPC the definition of obscenity under 292(1) IPC can be applied in a prosecution under S.294 IPC also. To make punishable, the alleged words must be in a sense lascivious, or it must appeal to the prurient interest, or will deprave and corrupt persons. In P. T. Chacko v. Nainan Chacko reported in 1967 KHC 231: 1967 KLT 799 this Court 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.” In Sangeetha Lakshmana v. State of Kerala reported in 2008 (1) KHC 812: 2008 (2) KLT 745: 2008 (1) KLD 339 this Court held thus, “in order to satisfy the test of obscenity, the words alleged to have been uttered must be capable of arousing sexually impure thoughts in the minds of its hearers.” Thus it is quite clear that, to make obscene the alleged words must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons, and defiling morals by sex appeal or lustful desires. ………...” 8. In the case on hand, from the prosecution charge, the allegation attributed to the petitioner is that he had committed the **Crl.MC.No. 4644 of 2016** 6 offence under Section 294(b) of the IPC. The de facto complainant was assaulted by the 2[nd] accused after he had come to the spot later in point of time. As held in **Latheef** (supra), abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined under the law. To make the words obscene punishable under Section 294(b) of the IPC, it must satisfy the definition of obscenity. To satisfy the test of obscenity, the words alleged to have been uttered must be capable of arousing sexually impure thoughts in the minds of its hearers. Furthermore, the sequence of allegations in the final report clearly show that the petitioner herein, who is a lawyer by profession, was roped in when he questioned the act of the de facto complainant in putting up constructions without securing permission from the local authority. 9. In **Preeti Gupta and Another v. State of Jharkhand and another** [2010 (7) SCC 667], the Hon’ble Supreme Court while summarizing the principles, where inherent power can and should be exercised to quash the criminal proceedings, had occasion to observe as follows in paragraph Nos. 18 and 19 of the report. “18. This Court had occasion to examine the legal position in a large number of cases. In R. P. Kapur v. State of Punjab, 1960 KHC 689: AIR 1960 SC 866: 1960 **Crl.MC.No. 4644 of 2016** 7 (3) SCR 388: 1960 CriLJ 1239, this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings: (i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 19. This Court in State of Karnataka v. L. Muniswamy and Others, 1977 KHC 581: 1977 (2) SCC 699: 1977 SCC (Cri) 404: AIR 1977 SC 1489: 1977 (3) SCR 113: 1977 CriLJ 1125 observed that the wholesome power under S.482 CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the Court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of **Crl.MC.No. 4644 of 2016** 8 this Court and other Courts.” 10. Having considered the facts and circumstances, the nature of allegations against the petitioner and the sequence of events, it appears that the initiation of criminal proceedings against him is with intent to vex and spite him. A criminal proceeding ought not be permitted to degenerate into a weapon of harassment or persecution. In that view of the matter, I am inclined to hold that the continuance of proceedings against the petitioner is a clear abuse of process and the same is liable to be quashed. In the result, this petition is allowed. Annexure-III charge and all further proceedings pursuant thereto against the petitioner now pending as C.C. No.524 of 2015 on the file of the Judicial Magistrate of First Class, Muvattupuzha are quashed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** **//TRUE COPY// P.A. TO JUDGE** avs **Crl.MC.No. 4644 of 2016** 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I A TRUE COPY OF THE FIR NO 629/15 OF MUVATTUPUZHA POLICE STATION DATED 11-032015** **ANNEXURE II A TRUE COPY OF THE STATEMENT GIVEN BY THE 2ND RESPONDENT BEFORE THE POLICE DATED 1203-2015** **ANNEXURE III A TRUE COPY OF THE CHARGE IN CRIME NO 629/15 OF THE MUVATTUPUZHA POLICE STATION DATED 31-03-2015.** ## **RESPONDENT'S/S EXHIBITS:** **NIL** **avs //TRUE COPY// P.A TO JUDGE**