Kanakam v. Nisha P.N. and Others

``` CRL.MC NO. 8834 OF 2019 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, ``` ## **`1944`** ## **`CRL.MC NO. 8834 OF 2019`** ## **`CRIME NO.15/2019 OF Vanitha Police Station, KZD, Kozhikode`** ## **`PETITIONER/ACCUSED:`** ``` KANAKAM, AGED 53 YEARS D/O.C.K.KURUP, LAW FIRM, A.G.ROAD, MANANCHIRA TOWER, NEAR NALANDA, TOURIST HOME, KOZHIKODE, RESIDING AT ACE APARTMENT, CONVENT ROAD, KOZHIKODE DISTRICT. BY ADVS. SRI.P.V.ANOOP ``` ## **`RESPONDENTS:`** ``` 1NISHA P.N., AGED 42 YEARS W/O.SUNIL KUMAR, CONFIDENTIAL ASSISTANT CORPORATION OFFICE, KOZHIKODE, RESIDING AT PUTHAN PURAYIL HOUSE, AMARAKKUNI(PO), PULPALLY, WAYANAD, PULPALLI, WYNAD DISTRICT, PIN-673 579. ``` ``` 2SUB INSPECTOR OF POLICE, VANITHA POLICE STATION, KOZHIKODE DISTRICT, PIN-673 001. 3STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. BY ADVS. SRI.G.SANTHOSH KUMAR (P). R2 & R3 BY SRI.P.G.MANU-SR.PUBLIC PROSECUTOR SRI.V.R.SASSIDHARAN ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 8834 OF 2019 ``` ``` 2 ``` ## O R D E R This Crl.M.C has been filed to quash all further proceedings in Crime No.15/2019 of Vanitha Police Station, Kozhikode. 2. The petitioner is the accused. The 1[st] respondent is the de facto complainant. 3. The offences alleged against the petitioner are punishable under Sections 353 and 294(b) of IPC. 4. The 1[st] respondent is the Confidential Assistant of Corporation Secretary, Kozhikode Corporation. According to her, the petitioner used to come to the Corporation office for meeting the Secretary of the Corporation and on all those occasions, he used to shower obscene words against her and obstruct her from discharging her official duty. It is further alleged that on 20.11.2019 at 1.30 pm, the petitioner trespassed into the Corporation Office, obstructed her official duty and abused her. ``` CRL.MC NO. 8834 OF 2019 ``` ``` 3 ``` 5. I have heard Sri.P.V.Anoop, the learned counsel for the petitioner, Sri.G.Santhosh Kumar, the learned counsel for the 2[nd] respondent and Sri.P.G.Manu, the learned Senior Public Prosecutor. 6. The learned counsel for the petitioner submitted that even if the entire allegations in the first information statement is believed in its entirety, no offence under Sections 353 or 294(b) of IPC is attracted. On the other hand, the learned counsel for the 1[st] respondent submitted that the allegations in the first information statement would definitely constitute the ingredients of Section 353 as well as Section 294(b) of IPC and when prima facie case is made out, the jurisdiction vested with this Court under Section 482 of Cr.P.C cannot be invoked. The learned Public Prosecutor also endorsed the argument of the learned counsel for the 1[st] respondent. 7. Annexure A is the first information statement. The allegation of the 1[st] respondent in Annexure A is that the ``` CRL.MC NO. 8834 OF 2019 ``` ``` 4 ``` petitioner used to come to her office to meet the Secretary of the Corporation and on all those occasions, she used to come to her seat and shower abusive words. According to the 1[st] respondent, the said act of the petitioner resulted in obstruction of her official duty. A specific allegation has been levelled against the petitioner that, on a particular day, ie. on 20.11.2019, at 1.30 pm, the petitioner trespassed into the Corporation Office and obstructed her official duty by showering abusive words against her. 8. Now let me see whether those allegations are sufficient to attract the offences under Sections 353 and 294(b) of IPC. Section 353 of IPC reads as follows: “ 353 . Assault or criminal force to deter public servant from discharge of his duty.—Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”. ``` CRL.MC NO. 8834 OF 2019 ``` ``` 5 ``` A reading of Section 353 of IPC would show that assault or use of criminal force is a prerequisite to attract the said offence. If the offence of either criminal force or assault is not attracted, the offence under Section 353 of IPC will not be attracted. Here, the only allegation is that the petitioner abused the 1[st] respondent whereby her official duty was obstructed. The mere using of abusive words against a public servant in a Government office or mere cessation of work by a public servant on account of the said act of the accused will not attract section 353 of IPC when there is no allegation of use of criminal force or assault. Here the prosecution has no case that any assault or criminal force was used. Hence, I am of the view that Section 353 of IPC is not attracted. 9. No doubt, to attract Section 294(b) of IPC, the following two ingredients are to be satisfied (i) the offender sings, recites or utters any obscene song or words, in or near any public place; and (ii) it should cause annoyance to others. ``` CRL.MC NO. 8834 OF 2019 ``` ``` 6 ``` 10. If the act is not obscene or is not done in any public place or song recited or words uttered is not done near a public place or that it caused no annoyance to others, no offence is committed. 11. Admittedly, the place of occurrence is an office room in a corporation office. The learned Public Prosecutor submitted that public has access to the corporation office and hence it has to be treated as a public place. True, if the alleged offence has taken place in any common area of a corporation office, the said place could be treated as a public place. However, the definite case of the prosecution is that the petitioner went inside the office of the 1[st] respondent where she was doing her work and uttered obscene words against her. An office room inside the corporation office cannot be termed as a public office. That apart, in order to satisfy the definition of “obscenity” to attract Section 395 of IPC, the word uttered should be capable of arousing sexually impure thoughts in the mind of its hearers (See Sangeetha Lakshmana v. ``` CRL.MC NO. 8834 OF 2019 ``` ``` 7 ``` State of Kerala 2008 (2) KLT 745). There is absolutely no case for the prosecution that the word allegedly uttered by the petitioner involves any suspicious element arousing sexual thoughts or feelings. In these circumstances, I am of the view that the basic ingredients of Section 294(b) of IPC is also not attracted. For the reasons stated above, no useful purpose will be served in proceeding further with the case. Accordingly, all further proceedings in Crime No.15/2019 of Vanitha Police Station, Kozhikode is hereby quashed. Crl.M.C is allowed. Sd/- DR. KAUSER EDAPPAGATH JUDGE ab ``` CRL.MC NO. 8834 OF 2019 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 8834/2019`** ``` PETITIONER ANNEXURES ANNEXURE ATRUE COPY OF THE FIR IN FI STATEMENT IN CRIME NO.15/2019 OF VANITHA POLICE STATION, KOZHIKODE. ANNEXURE BTRUE COPY OF THE ORDER DATED 30.01.2018 OF THE CORPORATION SECRETARY. ANNEXURE CTRUE COPY OF THE ORDER DATED 29.07.2019 OF THE EXECUTIVE ENGINEER. ANNEXURE DTRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER TO THE HON'BLE MAYOR DATED 21.10.2019. ANNEXURE ETRUE COPY OF THE COMPLAINT DATED 22.10.2019 OF THE PETITIONER TO THE HON'BLE MAYOR. ANNEXURE FTRUE COPY OF THE NOTICE DATED 04.11.2019 OF THE SECRETARY, KOZHIKODE CORPORATION. ANNEXURE GTRUE COPY OF THE REPRESENTATION DATED 12.11.2019 TO THE SECRETARY, KOZHIKODE CORPORATION. ``` RESPONDENTS ANNEXURES: NIL