Lainas and Shan v. State of Kerala and Station House Officer, Ettumanoor Police Station

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 ``` ## CRL.MC NO. 4385 OF 2022.. CRIME NO.1512/2021 OF ETTUMANOOR POLICE STATION, KOTTAYAM AGAINST THE ORDER/JUDGMENT IN CC 311/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, ETTUMANOOR ## **PETITIONER/S:** 1 LAINAS AGED 36 YEARS S/O ISMAIL RESIDING @ VAKKEDAM HOUSE, PADINJARUM BHAGAM, KARAYIL ATHIRAMPUZHA, KOTTAYAM, PIN - 686562 2 SHAN AGED 36 YEARS JALAL, RESIDING @ KANDANAMKUZHIYIL HOUSE, NEAR PADINJATTUMBHAGOM, ATHIRAMPUZHA, KOTTAYAM, PIN - 686562 BY ADVS. R.KISHORE (KALLUMTHAZHAM) G.KIRAN GANGA A.SANKAR ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER AGED 46 YEARS ETTUMANOOR POLICE STATION, ETTUMANOOR, KOTTAYAM-691501, PIN – 691501 BY SRI.M.P.PRASHANTH, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.01.2024, THE COURT ON 15.01.2024 PASSED THE FOLLOWING: CRL.MC No.4385 of 2022 2 ## O R D E R This Crl.M.C. is filed by the accused Nos.1 and 2 in Crime No.1512/2021 of Ettumannor Police Station, which is now pending before the Judicial First Class Magistrate Court-1, Ettumanoor as C.C.No.311/2021. The prayer sought is to quash the proceedings therein. 2. The aforesaid crime was registered against the accused based on a complaint submitted by the 2[nd] respondent for the offences punishable under Sections 279, 294(b), 506(i) r/w. Section 34 of the Indian Penal Code, Section 117(e) of the Kerala Police Act and Section 132(1) of the Motor Vehicles Act. 3. The allegation against the petitioners is that, on 1.8.2021 at 6.15 p.m., the accused persons drove a motorcycle bearing registration No.KL-05 AD 1493 in a rash and negligent manner and avoided the signal to stop the vehicle shown by the defacto complainant, the Inspector of Police, Ettumanoor. It was alleged that the accused persons had used abusive and obscene words to the complainant, thereby obstructing the discharge of the duty of the defacto complainant. The crime was registered accordingly, as evidenced by Annexure-A1 FIR, and after investigation, Annexure A2 final report was submitted. This Crl. M.C. is filed to quash Annexure A2 final report and all proceedings pursuant thereto. CRL.MC No.4385 of 2022 3 4. Heard Sri.R.Kishore (Kallumthazham), the learned counsel appearing for the petitioners and Sri.M.P.Prashanth, the learned Public Prosecutor for the State. 5. The first contention raised by the learned counsel for the petitioners is that the Crime was registered based on a complaint submitted by the Station House Officer, Ettumanoor Police Station, and the investigation was also conducted by him. Therefore, the entire proceedings are vitiated, and hence, the final report is to be quashed, contends the learned counsel. He also relies on the decision rendered by the Hon'ble Supreme Court in **Mohan Lal vs The State Of Punjab [(2018)17 SCC 627].** The learned Public Prosecutor, on the other hand, pointed out that, in **Mukesh Singh v. State (Narcotic Branch of Delhi) [(2020)17 SCC 573]** the law laid down by the Hon'ble Supreme Court in **Mohanlal's case** was held to be not a good law. 6. As rightly pointed out by the learned Public Prosecutor, on going through the observations made by the Hon'ble Supreme Court in **Mukesh Singh's** case (supra), it can be seen that, it was categorically observed after referring to **Mohanlal's** case (supra) and other decisions rendered by the Hon'ble Supreme Court that, merely because the informant and the investigating officer happened to be the same person, CRL.MC No.4385 of 2022 4 a prejudice to the accused person cannot be assumed and if at all any prejudice is caused to the accused, it is a matter to be established. It was also categorically observed that, only based on some apprehension or doubts as to the prejudice, the entire prosecution cannot be discarded, and the accused is not to be straightaway acquitted unless and until the accused is able to establish or prove the bias and prejudice. In the light of the aforesaid observations made by the Hon'ble Supreme Court, the contention raised by the learned counsel for the petitioners cannot be accepted as it is for the petitioners to establish any bias or any prejudice, if any, during the course of trial. Now, what is before this Court is only the final report, and there is no material to establish any bias and prejudice to the petitioners. Thus, the said contention of the petitioners is only to be rejected. 7. The learned counsel for the petitioners further contended that the offences punishable under section 294(b) would not be attracted. The learned counsel also relied on the decision this Court rendered in **Preethimon v. State of Kerala [2008(2) KLT 666].** In the said decision, it was held that, the exact word used by the accused must be mentioned in the FIS itself and in the absence of the same, the proceedings will be vitiated. However, the contention cannot be accepted because the specific word allegedly used by the petitioners is clearly CRL.MC No.4385 of 2022 5 mentioned in the FIR itself. Besides the same, the decision relied on by the learned counsel for the petitioners was held to be not a good law by this Court in the decision rendered in **Soman v. State of Kerala [2021(2)KHC 682].** In Soman's case (supra), after referring to various decisions of the Hon'ble Supreme Court, including **Balraj Khanna and Others v. Moti Ram [(1971) 3 SCC 399]** , it was held that, the nonmentioning of the exact words in the FIR cannot be treated as a ground to invoke the jurisdiction of this Court under section 482 Cr. PC. 8. It was also contended by the learned counsel for the petitioners that the words allegedly used in this case would not attract the offence under section 294(b) of IPC. The learned counsel for the petitioners also places reliance upon the decision rendered by this Court in **Latheef v. State of Kerala [2014(2)KLT 987]** , **Sajan C.K. v. State of Kerala and Another [2019(2)KLD 172] and Sangeetha Lakshmana v. State of Kerala [2008(2)KLT 745].** 9. The position of law in this regard is well settled as per a series of the decisions rendered by this Court. In **P.T.Chacko v. Nainan Chacko [1967 KLT 799]** , it was held by this Court 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. The said decision was followed in **Sangeetha Lakshmana’s** CRL.MC No.4385 of 2022 6 case (supra) wherein it was held that, in order to satisfy the test of ‘obscenity’, the words spoken must be capable of arousing sexually impure thoughts in the minds of hearers. In the said case, the impact of calling a person ‘rascal’ was considered, and it was held that, the said word would not attract the offence under section 294(b)IPC. In **Latheef** **v. State of Kerala [2014(2)KLT 987]** , this Court took a similar view after following **P.T.Chacko and Sangeetha Lakshmana’s** cases (supra), and it was held that every abusive word or every humiliating word by itself cannot be said to be obscene as defined under the IPC. It was observed that, even though the term ‘obscenity’ is not defined under section 294 of the IPC, the meaning given to the said term in section 292 of the IPC, has to be adopted while deciding the question relating to the offence under section 294(b)of the IPC. Therefore, unless the words used were of such nature that it is capable of arousing sexually impure thoughts in the minds of hearers, the offence would not be attracted. 10. In **Sajan C.K. v. State of Kerala and Another [2019(2)KLD 172]** , a similar question came up for consideration where the word used was referring to the female sexual organ. Even though these decisions were followed and the proceedings were quashed, the quashing of the proceedings was not solely on the said question alone. The sequence of events which led to the incident was taken into CRL.MC No.4385 of 2022 7 consideration, and after an overall consideration of the materials therein, this Court came to the finding that the proceedings thereon were a clear abuse of the process of law and, therefore, interference was warranted under section 482 Cr. PC. 11. Regarding the facts of this case, it is to be noted that the words used by the accused are clearly mentioned in the FIS itself, and the same is reiterated by the witnesses in their statements recorded under section 161 Cr.PC. The only question that arises here, as far as the offence under section 294(b) is concerned, is whether the said word which refers to the female sexual organ, would attract the said offence. As held in the decisions referred to above, mere abusive nature of the words used is not sufficient, but the words must be of such nature that it must have the effect of depraving persons and defiling morals by sex appeal or lustful desires. In **Sangeetha Lakshmana’s** case (supra), this Court clearly observed that, in order to satisfy the test of obscenity, the words uttered must be capable of arousing sexually impure thoughts in the minds of the hearers. In this case, evidently, the word used was referring to the female sex organ, and whether such words were capable of arousing sexually impure thoughts in the minds of its hearers is a matter of evidence, mainly because, prima facie, it is a word referring to a sexual organ. To be precise, the feeling the said word evoked in the mind of the hearer, the defacto CRL.MC No.4385 of 2022 8 complainant, is a matter to be examined during the course of the trial, as the word prima facie refers to the sexual organ. As regards the decision referred to by the petitioners, i.e. **Latheef’s** case and **Sangeetha Lakshmana’s** case (supra), the words used did not refer to any sexual organs. In **Sajan C.K’s** case (supra), even though the words used referred to a sexual organ, the decision to quash the proceedings was not solely based on the said contention but considering the sequence of events which led to the incident as well. Hence, the said decision cannot be relied on in this case. Therefore, I am of the view that, in the light of the above observation, the contention of the petitioners cannot be accepted at this stage, and it is a matter to be examined during the course of trial. 12. The next contention raised by the petitioners is with regard to the offences under section 117(e) of the Kerala Police Act. According to him, the materials placed on record are not sufficient to attract the said offence, as according to the petitioners, at the relevant time, the officer was not in uniform. He also places reliance upon the decision of this Court in **Avinash v. State of Kerala [2021(6) KLT 354]** . However, on going through the observations in the aforesaid decision, it can be seen that even though this Court held that if the Police officer who obstructed by the accused were not wearing uniform at the relevant time, the CRL.MC No.4385 of 2022 9 offence under section 117(e) of the Police Act would not be attracted. But, the crucial aspect to be noticed is that, in that case, there was a report submitted by the police before the Human Rights Commission to the effect that the Police officer concerned was not wearing the uniform at the relevant time, and a mistake occurred on the part of the police officer. Therefore, the factual position that the police officer was not wearing uniform at the relevant time was clearly made out before this Court and by acting upon the said report, the said decision was rendered. However, in this case, apart from the mere allegation that the police officer was not wearing the uniform, there is nothing to indicate the said aspect. Therefore, essentially, this is also a matter to be established during the trial. This is particularly because, in the FIS, he specifically stated that, at the relevant time, he was on duty. In such circumstances, this is also a matter of evidence, which cannot be considered at this stage. 13. The learned counsel for the petitioners further submitted that the incident that occurred was not in the manner specified in the prosecution case. He also placed before this Court a different version of the incident. However, since the same is also a disputed question of fact, it cannot be considered by this Court as it is beyond the scope of the proceedings under section 482 Cr. PC. The power of this Court under the CRL.MC No.4385 of 2022 10 said provision can be invoked only if it is shown that, even if the allegations raised in the FIR and final report are accepted as true, it would not make out any of the offences alleged. While considering the said question, it is not necessary for the court to go deep into the disputed question of fact. To find out whether the factual circumstances under which the offence was committed were different or not, is also a matter beyond the scope of a proceeding under section 482 of the Cr.P.C. It is essentially a matter to be considered at the time of trial, and the same cannot be decided in a proceeding of this nature. Thus, after considering all the relevant aspects, I am of the view that, this is not a fit case in which the jurisdiction of this Court under section 482 Cr.PC can be invoked; accordingly, this Crl.M.C is dismissed. However, it is clarified that, the observations and findings of this Court were only to find out whether a case was made out for invoking the jurisdiction of this Court under section 482 Cr.PC and under no circumstances any of the observations shall cause any prejudice to the petitioners during the trial. The trial court shall consider the petitioners' contentions untrammelled by any observations made in this order. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.4385 of 2022 11 ## **APPENDIX OF CRL.MC 4385/2022** PETITIONER’S ANNEXURES ANNEXURE:A1 THE TRUE COPY OF THE FIR NUMBERED AS 1512/2021 OF JFMC-I ETTUMANOOR DATED 01.08.2021 ANNEXURE:A2 THE TRUE COPY OF THE FIS SUBMITTED BY THE STATION HOUSE OFFICER ON THE ACTION TAKEN WITH RESPECT TO THE PETITIONERS INCIDENT DATED 01.08.2021 ANNEXURE:A3 THE TRUE COPY OF THE WOUND CERTIFICATE OF THE 1ST PETITIONER DATED 01.08.2021 ANNEXURE:A4 THE TRUE COPY OF THE FINAL REPORT DATED 03.08.2021 NUMBERED AS CC 311/2021