K.S. MUHAMMAD SHERIFF v STATE OF KERALA and BUSHARA

Crl.M.C.No.4846/2015 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 03RD DAY OF DECEMBER 2020 / 12TH AGRAHAYANA, 1942** **Crl.MC.No.4846 OF 2015** **CRIME NO.176/2015 OF Ambalamedu Police Station , Ernakulam** ## **PETITIONER/S:** **K.S.MUHAMMAD SHERIFF, S/O.SAINUDHEEN, KOYAMPARAMBIL HOUSE, PERINGALA P.O., KUNNATHUNADU TALUK, KIZHAKKAMBALAM - 683 565, ERNAKULAM DISTRICT.** **BY ADVS. SRI.PAUL K.VARGHESE SMT.A.A.GEETHA** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KEALA, ERNAKULAM.** **2 BUSHARA, AGED 44 YEARS, W/O.AZEES, KOYAMPARAMBIL HOUE, PERINGALA P.O., KUNNATHUNADU TALUK, KIZHAKKAMBALAM - 683 565, ERNAKULAM DISTRICT.** **R1 BY PUBLIC PROSECUTOR** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.4846/2015 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 4846 of 2015 ------------------------------------ Dated this the 3[rd] day of December, 2020 ## **O R D E R** The prayer in the instant petition is as follows: _"(I) Quash Annexure III FIR and Annexure IV Charge in Crime No.176/15 of Ambalamedu Police Station as against the petitioner in the interest of justice._ _(ii) Issue such other order, direction as may be necessary on the facts and circumstances of the case."_ 2. The petitioner has been arrayed as sole accused in the instant impugned Annexure A3 FIR in Crime No.176 of 2015 of Ambalamedu Police Station, Ernakulam District for offences punishable under Sections 506(ii), 509, 294 (b) and 506(ii) of IPC on the basis of the First Information Statement given by the 2[nd] respondent in respect of the alleged incident which happened on 14.03.2015 between 10.30 am and 11 a.m. The police, after investigation has filed impugned Annexure-A4 final report/charge sheet in the said crime No.176 of 2015 of Ambalamedu Police Station, in which the learned Magistrate has taken cognizance and thereafter the case is now pending as CC.No.268 of 2015 on the Judicial First Class Magistrate Court, Chottanikkara. 2. That is under challenge in this proceedings. 3. Brief of the prosecution case is that, the 2[nd] respondent-lady _defacto_ complainant and the petitioner are living in the immediate Crl.M.C.No.4846/2015 3 neighbourhood and that the petitioner had animosity against the 2[nd] respondent and she had earlier filed complaint against the petitioner for burning waste in front of her house and that on 14.03.2015 between 10.30 am and 11 am, the petitioner had abused her with filthy language and lifted his dothy and thereby caused loss of her reputation and further that the petitioner poured petrol on the body of the 2[nd] respondent to kill her. 4. Heard Sri.Paul K. Varghese, learned counsel for the petitioner/accused and Sri.Saigi Jacob Palatty, learned Public Prosecutor for the State of Kerala. Though the 2[nd] respondent lady _defacto_ complainant is duly served, as can be seen from the endorsement made by the Registry as early on 09.09.2015, there is no appearance for that party. 5. It appears that the 2[nd] respondent is the wife of the elder brother of the petitioner and that they are living in the immediate neighbourhood and that there are various disputes between them and two writ petitions were filed. The petitioner is running a hollow-brick making unit in the nearby vicinity and petitioner's brother (2[nd] respondent's husband) had complained against the functioning of the unit and he filed Annexure-A1-W.P.(C).No.6984/2015 before this Court on 09.03.2015 seeking for direction to the official respondents therein to cancel the license given to the petitioner for the running of the said hollow-brick unit and for other consequential reliefs. In that context it is also relevant to note that the petitioner herein had filed W.P.(C).No.11025/2015, for directions to the Grama Panchayat for renewal of the trade license, in which this Court had Crl.M.C.No.4846/2015 4 passed Annexure-II interim order dated 01.04.2015 in favour of the petitioner, whereby the respondent Grama Panchayat has also been directed not to interfere with the business activity in relation to the conduct of the hollow-brick unit. The counsel for the petitioner would point out that the petitioner and the husband of the 2[nd] respondent are brothers and they are living in the immediate neighbourhood and the 2[nd] respondent's husband had serious disputes against the petitioner in respect of the running of his brick manufacturing unit, mainly on account of jealousy and envy. The petitioner would point out the fact that the petitioner was running the unit properly as evident from Annexure- A1 W.P. (C).No.6984/2015, filed by the petitioner's brother against the running of the petitioner's unit and the same is pending before this Court. In Annexure-A2 writ petition filed by the petitioner, this Court directed the Panchayat, not to interfere with the petitioner's hollow-brick making unit. These aspects would clearly show that the petitioner was running the unit without violation of the license conditions and the allegations that the petitioner had burned waste etc. in front of the house of the 2[nd] respondent's house is absolutely false. Further that, the allegations in this case have been made falsely by the 2[nd] respondent only out of the animosity. Further that, the 2[nd] respondent's husband was then a serving officer in the CISF and that it is on account of his influence with the police officials that the impugned Annexure-A3 FIR was got registered. 6. Per contra, the learned Public Prosecutor submitted that the Crl.M.C.No.4846/2015 5 Investigating Officer had filed a statement dated 05.10.2015, in this case, wherein it has been stated in paragraph No.3 that the statements of two eye witnesses and one hearsay witness could be collected and their statements have been duly recorded and further the statement of the 2[nd] respondent herein has also been recorded under Section 164 of Cr.P.C by the learned Magistrate on 02.05.2015. 7. After hearing both sides, it is seen that the main allegation raised in Annexures-II and IV is for inclusion of offence punishable under Section 294(b) of the IPC (uttering some obscene words, volgour and filthy language against the 2[nd] respondent etc.). It is now well established by a series of judgments of this Court in **Latheef v. State of Kerala [2014 (2) KLT 987], P.T.Chacko v. Nainan Chacko [1967 KLT 799]** and **Sangeetha Lakshman v. State of Kerala [2008 (2) KLT 745]** that mere use of abusive and filthy words, however, it may be humiliating , will not amount to utterance of obscene words so as to attract the ingredients of offence punishable under Section 294(b) of IPC and that in order to make out a case under Section 294(b) prosecution should have a definite case that the alleged words used by the accused must be capable of arousing impure sexual thoughts and desires in the mind of the hearers. It would be relevant to refer paragraph No.5 of decision of this Court in **Latheef v. State of Kerala** , which reads as follows: _“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_ Crl.M.C.No.4846/2015 6 _alleged to have been used bv the revision petitioner are in fact abusive and humiliating. But to make it obscenepunishable 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 Sanaeetha Lakshmana V. State of Kerala reported in C2008C2) 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 bv 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, bv 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.”_ 8. Hence, this Court is of the considered view that even though the prosecution has made out in Annexures-II and III, case for the offence under Section 294 (b) of IPC, wherein utterance of obscene words are not made out in the facts of the instant case. However, after hearing both sides, this Court is not in a position to take the view that the ingredients of the offence are not made out at this stage and that the ingredients of the other alleged offences (506(ii), 509 of the IPC) are not made out or that the Crl.M.C.No.4846/2015 7 impugned criminal proceedings are set in motion only on account of malicious and extraneous consideration of the 2[nd] respondent. In that regard, the prosecution has also pointed out that the statements of two charge witnesses have also been taken and already recorded by the police during the course of investigation about the alleged incident in question. Therefore, the matter would require judicial evaluation based on the admissible evidence and it will be hazardous for this Court to embark upon the task of such factual determination in the present proceedings initiated under Section 482 Cr.P.C. The above said observations are made by this Court only in the limited context as to whether the other impugned offences could be quashed by resorting to Section 482 of C.R.P.C. 9. The upshot of the above discussion is that the impugned criminal proceedings under Annexures II and III for the offence punishable under Section 294 (b) of the IPC will deserve intervention at the hands of this Court in exercise of the inherent extra ordinary powers of this Court under Section 482 CR.P.C. In that view of the matter, it is ordered that the impugned Annexure-IV final report and charge sheet filed at Ambalamedu Police Station now pending as CC.No.268/2015 to the limited extent involves the offence as per Section 294(b) of the Indian Penal Code, will stand quashed and set aside. The impugned criminal Proceedings in the above Sessions Case to the extent it alleges the other offences, in the petition may go on strictly in accordance with law uninfluenced and untramelled manner with the observations and findings of this Court Crl.M.C.No.4846/2015 8 hereinabove. All contentions available in law to the petitioner in respect of those matters could be urged by him before the trial court in appropriate manner. The Registry will forward a copy of this Order to the Judicial First Class Magistrate Court, Chottanikkara who is dealing with C.C.No.268 of 2018, for necessary information. The petitioner will produce certified copy of this Order before the investigating officer concerned for necessary information. With these observations and directions, the above Crl.M.C. will stand disposed of. Sd/- **ALEXANDER THOMAS JUDGE** DG Crl.M.C.No.4846/2015 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A1 - A TRUE COPY OF THE WPC NO. 6984/2015 FILED BY SRI.AZEES AGAINST THE PETITIONER BEFORE THE HON'BLE HIGH COURT OF KERALA DT. 24.2.2015.** **EXHIBIT P2 A2 - A TRUE COPY OF THE INTERIM ORDER IN WPC NO. 11025/2015 OF THE HON'BLE HIGH COURT OF KERALA DT. 01.4.2015.** **EXHIBIT P3 A3 - A TRUE COPY OF THE FIR IN CRIME NO. 176/15 OF THE AMBALAMEDU POLICE STATION DT. 14.3.2015.** **EXHIBIT P4 A4 - A TRUE COPY OF THE CHARGE IN CRIME NO. 176/2015 OF AMBALAMEDU POLICE STATION DT. 16.3.2015.**