Joy and Others v. State of Kerala and Shiby

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 13TH DAY OF MARCH 2019 / 22ND PHALGUNA, 1940** ## **Crl.MC.No. 947 of 2019** **AGAINST THE ORDER/JUDGMENT IN ST 930/2017 of GRAMA NYAYALAYA, VADAVUCODE AT KOLENCHERY** ## **CRIME NO. 1868/2017 OF PUTHENCRUZ POLICE STATION, ERNAKULAM** ## **PETITIONER/S:** - **1 JOY, AGED 64 YEARS S/O.LATE ITTAPIRI, MUKALATH HOUSE, ODAKKALI P.O., ASAMANNOOR VILLGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-683549.** **2 JEO PAUL, AGED 38 YEARS S/O.LATE PAULKUTTY, KAVANAL HOUSE, PUTTUMANOOR KARA, PUTHENCRUZE VILLAGE, PUTTUMANOOR P.O., ERNAKULAM DISTRICT, PIN-682308.** - **3 NAVEEN, AGED 36 YEARS S/O.LATE GEORGE, POLLAYI, PUTTUMANOOR KARA, PUTHENCRUZE VILLAGE, PUTTUMANOOR P.O., ERNAKULAM DISTRICT, PIN-682308.** **4 VALSAN, AGED 56 YEARS S/O.ABRAHAM, POLLAYIL (HOUSE), PUTHENCRUZ VILLAGE, ERNAKULAM DISTRICT, PUTTUMANOOR P.O., PIN-682308.** **BY ADVS. SRI.JOBI.A.THAMPI SMT.M.KABANI DINESH SRI.SHOUKATH HUSAIN** Crl.M.C. No. 947 of 2019 ..2.. ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI-682031.** - **2 SHIBY, AGED 44 YEARS, W/O.SAM, THEKKEPOLLAYIL HOUSE, PUTHENCRUZ VILLAGE, PUTTUMANOOR P.O., ERNAKULAM DISTRICT, PIN NO.682308.** ## **OTHER PRESENT:** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No. 947 of 2019 ..3.. ## **ALEXANDER THOMAS, J.** -------------------------------------------------Crl.M.C. No. 947 of 2019 -------------------------------------------------Dated this the 13[th] day of March, 2019 ## **O R D E R** The petitioners are accused 1 to 4 in ST No.930 of 2017 on the file of the Grama Nyayalaya, Vadavucode, Kolenchery, which is arsing from Annexure I FIR in Crime No. 1868 of 2017 of Puthencruz Police Station. The police, after completing investigation, has filed Annex.3 final report in Crime No. 1868 of 2017 of Puthencruz Police Station, which has led to the institution of ST No. 930 of 2017 on the file of the Grama Nyayalaya, Vadavucode, Kolenchery. A perusal of Annexure I FIR and Annexure 3 final report would make it clear that there is no mention as to the obscene words allegedly used by the petitioners. All what stated is that the petitioners have used abusive words (അസഭ��). 2. It is interesting to note that the offences alleged in Annexure I FIR are those punishable under Sections 323, 324 & 506 of the Indian Penal Code. There is no allegation in Annexure 1 FIR that the petitioners have used obscene words. Further, after the commencement of the investigation, Annexure 3 final report has been filed, wherein the investigating officer has deleted the offences mentioned in Annex.1 Crl.M.C. No. 947 of 2019 ..4.. FIR and has included a new offence under Section 294(b) of the IPC. The only averment raised in the above crime is that the petitioners have used abusive words (അസഭ��). Moreover, it is crystal clear from a mere reading of Annexure 3 final report that the incident, in which the petitioners have used abusive words, has happened in the private property of the second petitioner and therefore, it is not in the public place as conceived in Section 294(b) of the IPC. 3. Petitioners seek quashment of the impugned proceedings on the ground that even if the allegations in Annexure 3 final report are assumed to be correct, still the offence under Section 294(b) of the IPC will not be disclosed. 4. Section 294 of the IPC, which deals with “Obsecene acts and songs”, reads as follows: “Whoever, to the annoyance of others- - (a) does any obscene act in any public place, or - (b) sings, recites or utters any obscene songs, 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.” Clause (a) of Section 294 of the IPC stipulates that whoever, to the annoyance of others, does any obscene act in any public place, shall be punishable with imprisonment for a stipulated period. Clause (b) of Section 294 of the IPC envisages that whoever, to the annoyance of Crl.M.C. No. 947 of 2019 ..5.. others, sings, recites or utters any obscene songs, ballad or words, in or near any public place shall be punishable with imprisonment for a stipulated period. Therefore, the doing of the obscene act or the utterance of the obscene words should have necessarily been taken place in or near any public place. The impugned act is said to have taken place in the private property or private place. Then, however, there is no question of fulfilling the basic factual ingredients in regard to Section 294 of the IPC. Hence, since the allegation in the impugned Annexure 3 final report is that the petitioners have allegedly used obscene words in the private property of the second petitioner, there is no question of commission of the offence under Section 294(b) IPC. 5. That apart, it has been held by this Court in the decision in _**Mukesh M.K.**_ v. _**State of Kerala**_ [2018 (3) KHC 858] that in the absence of mention in the FIR or final report as to what are the words that are indecent or obscene used by the accused, it cannot be said that any offence under Section 294(b) is made out. In the instant case also, the said position squarely applies inasmuch as no specific mention has been made in Annexure 3 final report as to the exact obscene words used by the petitioners and all what is stated is that they have used abusive words in the location concerned, which is in the private property of the second petitioner. Therefore, for this reason also, it is Crl.M.C. No. 947 of 2019 **==> picture [20 x 8] intentionally omitted <==** to be held that no offence under Section 294(b) of the IPC has been made out in the instant case. 6. Further, it has been held by the Apex Court and various High Courts that the abusive words or humiliating words or defamatory words will not as such amount to “obscenity” as defined under the law and even if the words used by the accused are, in fact, abusive or humiliating, it will not necessarily make obscene as punishable under Section 294(b) of the IPC. In order to attract the offence under Section 294(b) of the IPC, the definition of “obscenity” should be satisfied. Section 294 of the IPC does not define “obscenity” but, being a continuation of the subject dealt with under Section 292 of the IPC, the definition of “obscenity” under Section 292(1) of the IPC can be applied in a prosecution under Section 294(b) of the IPC also and therefore, 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. The definition of “obscenity” as referred to in Section 292 of the IPC reads as follows: _“292. Sale, etc., of obscene books, etc.—_ _(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the pruri ent interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it._ Crl.M.C. No. 947 of 2019 ..7.. ## _(2) Whoever—_ _(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or_ _(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowingor having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or_ _(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made,produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or_ _(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or_ _(e) offers or attempts to do any act which is an offence under this section,_ shall be punished on first conviction with im prisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.” It has been held by this Court in _**Latheef**_ v. _**State of Kerala**_ [2014 (2) KLT 987] that to make the words “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 Crl.M.C. No. 947 of 2019 ..8.. defiling morals by sex appeal or lustful desires and that 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 and so, 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. This Court in _**Latheef**_ 's ( _supra_ ) case also relied on the judgment of this Court _**Sangeetha Lakshmana**_ v. _**State of Kerala**_ [2008 (2) KLT 745]. It is profitable to refer to paragraphs 3 to 5 of the judgment in _**Latheef**_ 's ( _supra_ ) case, which read as follows: _“3. The very short point for decision in this revision is whether the words alleged to have been used by the revision petitioner will constitute obscenity as defined under the law. The abusive words alleged to have been used by the revision petitioner herein are “_ പ�ലയ�ട� മ��ന� _....” Of course as regards wrongful restraint and assault the two courts below found the revision petitioner not guilty, and he stands acquitted. As regards the above words alleged to have been used by the petitioner both the courts below found that it is obscene. Of course it stands proved by the evidence of PW1 that the revision petitioner had in fact used such words in the alleged incident. So, much discussion is not required on that aspect. The question for decision in revision is whether those words will amount to obscenity as defined under the law. If the finding is that such words will not amount to obscenity, the revision petitioner will have to be acquitted._ _4. Sub Section (1) of Section 292 IPC provides that for the purposes of sub Section (2), dealing with punishment and sentence for obscenity, “a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious, or appeals to the prurient interest, or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons, who_ Crl.M.C. No. 947 of 2019 ..9.. _are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” Thus sub Section 1 to Section 292 IPC gives a clear idea as to what is meant by obscenity under the law, punishable under Sections 294(2), 293 and 294 IPC._ _5. Abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined under the law. Of course there is 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 Section 294(b) IPC, it must satisfy the definition of obscenity. Section 294 IPC does not define obscenity. Being a continuation of the subject dealt with under Section 292 IPC the definition of obscenity under 292(1) IPC can be applied in a prosecution under Section 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 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(2) KLT 745)** 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. I find that the words alleged to have been used by the revision petitioner in this case are really abusive and humiliating, but those words cannot be said to be obscene. As already stated, every abusive word or every humiliating word cannot, by itself, be said to be obscene as defined under the Indian Penal Code. I find that the conviction against the revision petitioner under Section 294 (b)IPC in this case, on the basis of the above words alleged to have been used by him, is liable to be set aside, and the revision petitioner is entitled to be acquitted.”_ 7. Therefore, it is only to be noted that not even a remotest mention about the accused having used the alleged obscene words at the stage of the FIR as can be seen from Annexure 1 FIR in the above crime. A mere reading of Annexure 3 final report would make it clear that Crl.M.C. No. 947 of 2019 **==> picture [26 x 8] intentionally omitted <==** there is not even the remotest suggestion that the petitioners have uttered any obscene word, which involves some lascivious elements arousing sexual thoughts or feelings, or the words having the effect of depraving persons, and defiling morals by sex appeal or lustful desires. Therefore, in the instant case, it is only to be held that the offence under Section 294(b) is not made out at all. In the light of these aspects, it is only to be held that the plea of the petitioners is to be allowed. 8. It is also to be noted that the petitioners have earlier filed Annexure 4 application, CMP No. 171 of 2018 in ST No. 930 of 2017 before the court below concerned, to stop the proceedings as envisaged under Section 258 of the Cr.P.C. and the said plea in Annexure 4 application has been rejected by the court below concerned as per the impugned Annexure 5 order dated 25.09.2018. 9. Accordingly, it is ordered in the interest of justice that the impugned Annexure 5 order in CMP No. 171 of 2018 in ST No. 930 of 2017 on the file of the Grama Nyayalaya, Vadavucode, Kolenchery will stand quashed. It is further ordered that the impugned proceedings in Annexure 3 final report in Crime No. 1868 of 2017 of Puthencruz Police Station, which has led to the institution of ST No. 930 of 2017 on the file of the Grama Nyayalaya, Vadavucode, Kolenchery, and all Crl.M.C. No. 947 of 2019 **==> picture [26 x 8] intentionally omitted <==** further proceedings arising therefrom will stand quashed. The petitioners will produce a certified copy of this order before the court below for necessary information and action. With these observations and directions, this Crl.M.C. will stand disposed of. Sd/- **ALEXANDER THOMAS JUDGE** bka/14.03.2019 Crl.M.C. No. 947 of 2019 ..12.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE**|**1**|**CERTIFIED COPY OF THE FIRST**| |---|---|---| |||**INFORMATION REPORT IN CRIME**| |||**NO.1868/2017 OF THE PUTHENCRUZ POLICE**| |||**STATION.**| |**ANNEXURE**|**2**|**CERTIFIED COPY OF THE FIRST**| |||**INFORMATION STATEMENT IN CRIME**| |||**NO.1868/2017 OF THE PUTHENCRUZ POLICE**| |||**STATION.**| |**ANNEXURE**|**3**|**CERTIFIED COPY OF THE FINAL REPORT IN**| |||**CRIME NO.1868/2018 OF THE PUTHENCRUZ**| |||**POLICE STATION.**| |**ANNEXURE**|**4**|**TRUE COPY OF THE APPLICATION**| |||**(C.M.P.NO.171/2018) FILED IN**| |||**S.T.NO.930/2017 BEFORE THE GRAM**| |||**NYAYALAYA VADAVUCODE, KOLENCHERY.**| |**ANNEXURE**|**5**|**CERTIFIED COPY OF THE ORDER DATED**| |||**25.09.2018 IN C.M.P.NO.171/2018 IN**| |||**S.T.NO.930/2017 ON THE FILE OF THE**| |||**GRAM NYAYALAYA VADAVUCODE, KOLENCHERY.**|