Madhusoodanan Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946** **CRL.MC NO. 6395 OF 2019** **CRIME NO.925/2017 OF VATTIYOORKAVU POLICE STATION,** ## **THIRUVANANTHAPURAM** **AGAINST THE ORDER/JUDGMENT DATED IN CC NO.452 OF 2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III (FOREST OFFENCES), NEDUMANGAD** **PETITIONER/ACCUSED:** **MADHUSOODANAN NAIR, AGED 49 YEARS,** **S/O. SUKUMARA PILLAI, SREENANDHANAM HOUSE, TC 7/1188 (3) KOTTAMVILA MARUTHUMKUZHI PANGODE WARD, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.** **S.RAJEEV K.K.DHEERENDRAKRISHNAN V.VINAY D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENTS/STATE / DEFACTO COMPLAINANT:** - **1 STATE OF KERALA RE. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. (CRIME NO. 925/2017 OF VATTIYOORKAVU POLICE STATION, THIRUVANANTHAPURAM DISTRICT.)** **2 INDIRA BHAI, D/O. SAVITHRI AMMA, KRISHNA HOUSE, TC 7/727, NEAR SREEKRISHNA SWAMI TEMPLE, MARUTHUMKUZHY, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695 013.** **BY ADVS. SRI.THOMAS ABRAHAM - R2 SMT.MERCIAMMA MATHEW** Crl.M.C. No.6395 of 2019 2 ## **SRI.ASWIN.P.JOHN** ## **SRI.R.ANANTHAPADMANABAN** **SRI.RENJITH.T.R, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No.6395 of 2019 3 ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------Crl.M.C. No.6395 of 2019 ---------------------------------------------Dated this the 24[th] day of July, 2024** ## **O R D E R** This Criminal Miscellaneous Case is filed to quash the proceedings in C.C.No.452/2018 on the file of the Judicial Magistrate of First Class (Special Court for Forest Cases), Nedumangad. The above case is charge sheeted alleging offences punishable under Sections 447, 294 (b), 506 & 509 IPC. 2. The prosecution case is that due to enmity of the petitioner towards the defacto complainant in not selling the property to the petitioner, on 13.05.2017, at 1 p.m., the accused abused the defacto complainant and trespassed into the compound and intimidated her and thereby the accused alleged to have committed the above said offences. The incident allegedly took place on Crl.M.C. No.6395 of 2019 4 13.05.2017, but the complaint was lodged on 25.05.2017. Annexure-I is the FIR and Annexure-II is the final report. According to the petitioner, even if the entire allegations are accepted, no offence is made out. 3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 4. Counsel for the petitioner submitted that the petitioner is working as the Preventive Officer in Excise Department and he is having unblemished track records. As he is a public servant, the 2[nd] respondent had also filed a detailed complaint about the alleged incident in the criminal case before the Excise Commissioner, Thiruvananthapuram and the Excise Commissioner had directed the Vigilance Officer (Excise) to conduct an enquiry about the alleged incident and submit a report. Annexure-III is the enquiry report in which it is found that, civil Crl.M.C. No.6395 of 2019 5 disputes are pending between the parties and it is not necessary to continue with the enquiry and advised to drop the proceedings as the allegations are baseless. Therefore, it is submitted that, in the light of Annexure-III, prosecution against the petitioner is also to be quashed. It is also submitted by the petitioner that he had filed O.S.No. 426/2015 before the Munsiff's Court, Thiruvananthapuram. The suit was filed against one Jyothi Lakshmi and Raji K Damodaran who are the predecessors of the 2[nd] respondent. The defendants in the above suit have transferred the above property in the name of the 2[nd] respondent as per Sale Deed No.1210/2015. After the 2[nd] respondent and her family put in possession of the property, according to the petitioner, they trespassed into the pathway which is the subject matter of O.S.No. 426/2015. The petitioner prevented the same and due to that Crl.M.C. No.6395 of 2019 6 animosity and so as to pressurize the petitioner to settle the civil dispute a false case is foisted with a malicious intention to drag the petitioner to criminal case is the submission. Annexure-IV is the plaint in O.S.No. 426/2015. The third Additional Munsiff's Court, Thiruvananthapuram passed an order of injunction as evident by Annexure-V in the above suit. It is also submitted that, after the institution of the suit, the property in Survey No.1098/1/6 belonging to the 2[nd] defendant was sold to the defacto complainant on 25.05.2015 and Annexure-VI is the Encumbrance Certificate. According to the petitioner, he has got a good track record and he was even recommended for Presidential Medal for his good service in the department as evident by Annexure-VII. Annexure-VIII is the Letter of Appreciation from the then Excise Commissioner for his valuable service in the department. Annexure-IX Crl.M.C. No.6395 of 2019 7 is the notification issued by the Government of Kerala in which it is stated about the conferment of Chief Minister's Excise Medal for the year 2013 for outstanding performance and devotion to duty by the petitioner. According to the petitioner, even if the entire allegations in Annexure II are accepted, no offence is made out. 5. The learned Public Prosecutor submitted that the contentions of the petitioner are matter of evidence and this Court may not interfere with the same. 6. This Court considered the contentions of the petitioner and the Public Prosecutor. The offence alleged are under Sections 294(b), 506(i), 509 and 447 IPC. The ingredients of Section 294(b) is considered by this Court in **Latheef v. State of Kerala** [2014 (2) KHC 604]. It will be better to extract the relevant portion of the above judgment: Crl.M.C. No.6395 of 2019 8 “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 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 Crl.M.C. No.6395 of 2019 9 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 S.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. In the result, this revision petition is allowed. The conviction and sentence against the revision petitioner under S.294(b) IPC in ST No. 3810/1998 of the Judicial First Class Magistrate Court, Chittoor are set aside, on the finding in revision that the revision petitioner is not guilty of the offence punishable under S.294(b) IPC. The revision petitioner will stand released from prosecution on acquittal, and the bail bond executed by him will stand discharged.” Even if the entire allegations in Annexure II final report are accepted, the offence under Section 294(b) is not attracted. 7. Section 509 IPC read like this: Crl.M.C. No.6395 of 2019 10 “Section 509:- Word, gesture or act intended to insult the modesty of a woman Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object, shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.” Even if the entire allegations in Annexure II final report and the accompanying documents are accepted, it is clear that there is no allegation that the petitioner had used any words or gestures with an intention to insult the modesty of the 2[nd] respondent, defacto complainant. 8. Section 506 (i) is also alleged against the petitioner. In **Manik Taneja and Another v. State of Karnatka and Another** [2015 KHC 4046], the Apex Court considered the ingredients of Section 506 IPC. Crl.M.C. No.6395 of 2019 11 ## The relevant portion of the same is extracted hereunder: “13. S.506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in S.503 IPC is as under: "503. Criminal Intimidation.-- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.-- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section." 14. A reading of the definition of "Criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which Crl.M.C. No.6395 of 2019 12 he is legally entitled to do. 15. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "Criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the minds of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in S.503 IPC. ” Even if the entire allegations in Annexure II final report are accepted, no offence under Section 506 Crl.M.C. No.6395 of 2019 13 ## (i) IPC is made out. 9. What remains is the offence under Section 447 IPC. Admittedly a civil dispute is pending and an order is also passed by the Civil court. Moreover, the incident in this case happened on 13.05.2017 and the complaint was seen filed on 25.05.2017. This Court also perused Annexure-III enquiry report submitted by the Vigilance Officer (Excise), Thiruvananthapuram. Strictly speaking, the same is not applicable and the criminal case is to be considered separately. But considering the facts and circumstances of the case and also considering the fact that there is a civil dispute between the petitioner and the 2[nd] respondent, I think the continuation of the prosecution against the petitioner is not necessary. The offence alleged are not attracted. 10. The upshot of the above discussion is that Crl.M.C. No.6395 of 2019 14 no offence is made out against the petitioner. Accordingly, this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner in C.C.No.452/2018 on the file of the Judicial Magistrate of First Class (Special Court for Forest Cases), Nedumangad are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM Crl.M.C. No.6395 of 2019 15 ## **APPENDIX OF CRL.MC 6395/2019** ## **PETITIONER ANNEXURES** - **ANNEXURE 1** - **TRUE COPY OF THE FIRST INFORMATION REPORT ALONG WITH FIRST INFORMATION STATEMENT IN CRIME NO. 925/2017 OF VATTIYOORKAVU POLICE STATION.** - **ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 925/2017 OF VATTIYOORKAVU POLICE STATION.** - **ANNEXURE III** - **TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE VIGILANCE OFFICER, EXCISE, THIRUVANANTHAPURAM DATED 21.3.2018.** - **ANNEXURE IV TRUE COPY OF PLAINT IN OS NO. 426/2015 OF MUNSIFFS COURT, THIRUVANANTHAPURAM.** - **ANNEXURE V TRUE COPY OF THE ORDER OF INJUNCTION PASSED BY THE III ADDL. MUNSIFFS COURT, THIRUVANANTHAPURAM.** - **ANNEXURE VI TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 24.9.2018.** - **ANNEXURE VII TRUE COPY OF THE COMMUNICATION DATED 26.5.2014 ISSUED BY THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM TO ASST. EXCISE COMMISSIONER, THIRUVANANTHAPURAM** - **ANNEXURE VIII TRUE COPY OF THE LETTER OF APPRECIATION DATED 7.6.2016 ISSUED TO THE PETITIONER.** - **ANNEXURE IX TRUE COPY OF THE NOTIFICATION DATED 25.1.2014 ISSUED BY THE GOVT. OF KERALA.** **RESPONDENTS EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE**