NIZARUDEEN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942** ## **Crl.MC.No.5383 OF 2018** **AGAINST THE PROCEEDINGS IN CC 2989/2017 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, NEDUMANGAD** ## **PETITIONER/ACCUSED:** **NIZARUDEEN, ADVOCATE, S/O.YOSUF KUNJU AJMAL NIVAS, PAZHAYA CHANDHA, KALLARA.** **BY ADVS. DR.S.GOPAKUMARAN NAIR (SR.) SMT.GAYATHRI NANDAGOPAL SRI.K.ARJUN VENUGOPAL SMT.V.A.HARITHA SRI.R.NANDAGOPAL SRI.C.R.SYAMKUMAR SRI.SOORAJ T.ELENJICKAL** ## **RESPONDENT/COMPLAINANT/STATE:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** - ***2 RASIM, SHEMINA MANZIL, NEAR THACHONAM MOSQUE KALLARA – 691 536.** ***(ADDITIONAL R2 IMPLEADED AS PER ORDER DATED 17/10/2018 IN CRL.M.A No.2/2018)** ## **R2 BY ADV. T.KABIL CHANDRAN** ## **SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No.5383 of 2018 2 ## **ALEXANDER THOMAS, J.** ## **=========================== Crl.M.C No.5383 of 2018** **===========================** Dated this the 02[nd] day of November, 2020 ## **ORDER** The prayer in the aforecaptioned Crl.Miscellaneous case filed under Sec.482 of the Cr.P.C is as follows : _“..............to quash Annexures-A2 and A3 and the proceedings pending in C.C.No.2989/2017 on the files of the Judicial First Class Magistrate Court-II, Nedumangadu as an abuse of process of Court and for securing the ends of justice.”_ 2. Heard Sri.S.Gopakumaran Nair, learned Senior Counsel instructed by Sri.Sooraj T.Elenjickal, learned counsel appearing for the petitioner (sole accused), Sri.B.Jayasurya, learned Public Prosecutor appearing for the 1[st] respondent-State of Kerala and Sri.T.Kabil Chandran, learned counsel appearing for the additional 2[nd] respondent (de facto complainant). 3. The petitioner herein is the de facto complainant in the First Information Report in Crime No.869/2016 of Pangode Police Station, Thiruvananthapuram District, which was registered on 12.08.2016, for offences punishable under Secs.341, 323 & 324 of the Indian Penal Code, in which the accused therein is the 2[nd] respondent Crl.M.C No.5383 of 2018 3 herein (de facto complainant herein). The alleged incident is said to have happened on 12.08.2016 evening and the abovereferred FIR No.869/2016 has been registered at Pangode Police Station on the same day (12.08.2016). The police after investigation has filed Annexure-A1 final report/charge sheet in the said Crime No.869/2016 of Pangode Police Station, which has now led to the pendency of calendar case C.C.No.3208/2016 on the file of the Judicial First Class Magistrate’s Court, Nedumangad, Thiruvananthapuram District, in which the 2[nd] respondent herein has been arrayed as the sole accused therein for the abovesaid offences punishable under Secs.341, 323 & 324 of the IPC, in which the petitioner herein is the de facto complainant. 4. It is stated that in respect of the very same incident, which is said to have happened on 12.08.2016 evening, the 2[nd] respondent after delay of about 42 days, has given Annexure-A2 private criminal complaint dated 24.09.2016 before the Judicial First Class Magistrate’s Court-II, Nedumangad giving a different version of the said incidents and alleging as if, the petitioner herein has committed the offences punishable under Secs.294(b), 452, 323, 354, 506(i) of the IPC, etc. in which the 2[nd] respondent is the complainant. The learned Magistrate Crl.M.C No.5383 of 2018 4 had issued a formal order under Sec.156(3) of the Cr.P.C that the allegations in Annexure-A2 private criminal complaint may be investigated by the police after the registration of the FIR. On account of that, Crime No.1175/2016 of Pangode Police Station, Thiruvananthapuram has been registered on 19.10.2016 for the abovesaid offences, in which the petitioner herein has been arrayed as the sole accused and the 2[nd] respondent herein has been shown as a complainant. The police after investigation have filed the impugned Annexure-A3 final report/charge sheet in Crime No.1175/2016 on 10.11.2016. The police after investigation have included in Annexure-A3 final report/charge sheet only the offences as per Sec.294(b) & 506(i) of the IPC and has deleted the other offences alleged in the FIR and Annexure-A2 private criminal complaint, viz., 452, 323 & 354 of the IPC. Pursuant to the impugned Annexure-A3 final report/charge sheet filed in Crime No.1175/2016 of Pangode Police Station, the case is now pending as calendar case C.C.No.2989/2017 on the file of the Judicial First Class Magistrate’s Court-II, Nedumangad. The petitioner seeks quashment of the proceedings emanating from Annexure-A3 final report/charge sheet filed in Crime No.1175/2016 of Pangode Police Station, which has now Crl.M.C No.5383 of 2018 5 led to the pendency of calendar case C.C.No.2989/2017 on the file of the Judicial First Class Magistrate’s Court-II, Nedumangad. It is common ground that Annexure-A3 final report/charge sheet has been filed as early as on 10.11.2016. So also, there is no dispute that the police after investigation has included only the offences as per Secs.294(b) & 506(i) of the IPC and has thereby deleted the other offences alleged in Annexure-A2 viz., Secs.452, 323 & 354 of the IPC. There does not seem to be any serious dispute that Annexure-A2 complaint has been made only on 24.09.2016, which is after the lapse of about 42 days since the occurrence of the incidents on 12.08.2016 and the registration of Annexure-A1 FIR at the instance of the petitioner. 5. After hearing both sides and after going through the materials in Annexures-A2 & A3 final reports/charge sheets it is seen that the main allegations raised against the petitioner are those contained in the statement said to have been given by the 2[nd] respondent to the police under Sec.161 of the Cr.P.C, which is given as Annexure-A4(a) at page No.30 of the paper book of this petition. The main allegations raised therein are to the effect that the 2[nd] respondent (de facto complainant) has studied upto plus two and Crl.M.C No.5383 of 2018 6 that he is living together with his wife and the child in his house and he was running a shop in the locality. That on 12.08.2016 at about 11 a.m., the petitioner/accused had come to the front of his gate and had knocked on the gate and had loudly abused him in extremely foul language and hearing the sound, the 2[nd] respondent’s wife had gone out to see what is happening and then he had seen that the petitioner, who is a friend of the 2[nd] respondent was there and she told the 2[nd] respondent about the above conduct of the petitioner and thereupon, the 2[nd] respondent had not gone out of the house. Later, the petitioner had opened the gate and entered the compound and that he had beaten on the shoulder of the 2[nd] respondent and that he had also torn the dress of the wife of the 2[nd] respondent and that hearing the sound, the people of the locality had come there, etc. 6. The police after exhaustive investigation have found that the allegations regarding commission of offences like Secs.452, 323 & 354 of the IPC are factually wrong and cannot be the subject matter of Annexure-A3 final report/charge sheet. Therefore, it can be seen that the main allegations raised by the 2[nd] respondent in his version before the police, as if, the petitioner had assaulted him and had torn the dress of his wife, etc. has been disbelieved by none other than the police after Crl.M.C No.5383 of 2018 7 conduct of the investigation. Annexure-A3 final report/charge sheet has been filed as early as on 10.11.2016. The only offences now alleging against the petitioner are those punishable under Secs.294(b) (use of obscene words) & Sec.506(i) (punishment for criminal intimidation). 7. Sec.294(b) of the Indian Penal Code reads as follows : _“_ _**294. Obscene acts and songs** .- Whoever, to the annoyance of others-_ **==> picture [97 x 23] intentionally omitted <==** _(b) sings, recites or utters any obscene song, 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.”_ 8. It is by now well settled by a series of rulings of various High Courts, including this Court in decisions as in _**Latheef v. State of Kerala**_ [2014 (2) KLT 987], _**P.T.Chacko v. Nainan Chacko**_ [1967 KLT 799], _**Sangeetha Lakshmana v. State of Kerala**_ [2008 (2) KLT 745] that abusive words or humiliating words of defamatory words will not as such amount to obscenity as defined in Sec.292 of the IPC and that to make the alleged uttered words obscene, so as to make it punishable under Sec.294(b) of the IPC, it must satisfy the definition of obscenity, as envisaged in Sec.292 of the IPC since Sec.294 of the IPC does not explicitly define obscenity. This Court held that since the Crl.M.C No.5383 of 2018 8 offence as per Sec.294(b) of the IPC is a continuation of the subject matter dealt with under Sec.292, the definition under Sec.292(1) of the IPC is to be applied in a prosecution under Sec.294 of the IPC and that to make the alleged uttered words punishable under Sec.294(b) of the IPC, so as to constitute it as obscene words, the alleged words must be lascivious or it must be appeal to the prurient interest or such uttered words are capable of depraving and corrupting the persons, who hear such uttered words. This Court has held that to satisfy the test of obscenity the alleged words uttered must be capable of arousing sexually impure thoughts in the minds of the hearers and to make such alleged words obscene, it must involve some lascivious elements arousing sexually impure thoughts or feeling s or the words must have the effect of depraving persons and defiling morals by sex appeal or lustful desires. It will be profitable to refer to paragraph No.5 of the decision of this Court in **Latheef’s case** (supra) [2014 (2) KLT 987], 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 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_ Crl.M.C No.5383 of 2018 9 _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.”_ 9. In the instant case, the main allegations raised by the 2[nd] respondent in the impugned Annexure-A3 are to the effect that the petitioner has used extremely abusive and foul language when he had entered into the 2[nd] respondent’s compound. Therefore, going by the dictum laid down by this Court in a series of decisions as in **Latheef’s case** (supra) [2014 (2) KLT 987], etc., it is only to be held that the basic ingredients of the offence conceived as per Sec.294(b) of the IPC (utterance of obscene words) are conspicuously absent in the prosecution materials and hence, the alleged offence as per Sec.294(b) is liable for interdiction under Sec.482 of the Cr.P.C, inasmuch as the vital ingredients of the alleged offence are not made out in the Crl.M.C No.5383 of 2018 10 ## impugned prosecution materials. 10. The only other offence involved in this case is the one as per Sec.506(i) of the IPC. Sec.506 of the IPC deals with punishment for criminal intimidation, which reads as follows : ## _“_ _**506. Punishment for criminal intimidation**_ _Whoever, commits the offence of criminal intimidation shall be punished with imprisonment of either description for a terms which may extend to two years, or with fine, or with both.”_ 11. Criminal intimidation is defined in Sec.503 of the IPC, which reads as follows : ## _“_ _**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 threats, commits criminal intimidation._ **==> picture [96 x 23] intentionally omitted <==** ## _**Illustration**_ _A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation.”_ 12. In the instant case, it is beyond any dispute that the allegations raised by the 2[nd] respondent that the petitioner had assaulted him and had torn the dress of his wife, etc. has been disbelieved by none other than the police, has conducted the Crl.M.C No.5383 of 2018 11 investigation, which has led to the submission of Annexure-A3 final report. In respect of the very same incident, which is said to have happened on 12.08.2016, the petitioner has triggered the submission of a First Information Statement, which has led to the filing of Annexure-A FIR in Crime No.869/2016 of the same police station (Pangode Police Station) on the same day (12.08.2016) itself. The police after investigation, has filed Annexure-A1 final report/charge sheet in the said Crime No.869/2016 at the behest of the petitioner and the case is now pending as calendar case C.C.No.3208/2016 on the file of the Judicial First Class Magistrate’s Court-II, Nedumangad, Thiruvananthapuram District. There is no dispute that the counter version of the 2[nd] respondent in the respect of the same incident has been given as per Annexure-A3 private criminal complaint only after the lapse of about 42 long days. Of course, the 2[nd] respondent has a case that he had repeatedly approached the police, who had refused to act upon his complaint for registering FIR, etc. If at all, the 2[nd] respondent has such case, then certainly nothing prevented him from sending a petition in that regard on the next day by registered post to the Station House Officer concerned and he even could have given a copy of the same to the District Police Chief concerned. No such Crl.M.C No.5383 of 2018 12 action has been taken by the 2[nd] respondent. 13. Taking into account the totality of the facts and circumstances of the case, more particularly, the fact that serious allegations of other offences has been found not believable by the police and in view of the delay as well as the in view of the fact that an FIR has already been filed at the instance of the petitioner in respect of the incident, which is said to have happened on the same day between the parties and there appears to be strong force in the contention of the learned Senior Counsel appearing for the petitioner that the steps taken by the 2[nd] respondent in filing Annexure-A2 private criminal complaint, which led to the submission Annexure-A3 final report in this case, must have been only an attempt as a counterblast to Annexure-A1 criminal proceedings initiated at the behest of the petitioner as the de facto complainant, in which the 2[nd] respondent has been arrayed as the sole accused. Moreover, a reading of the impugned materials would disclose that there are no strong materials even to remotely indicate the disclosure of the offence as per Sec.506(i) of the IPC. For all these reasons, this Court is of the considered view that the continuance of the impugned criminal proceedings would amount to a grave abuse to the process of the court, as it would inevitably lead to unnecessary wastage Crl.M.C No.5383 of 2018 13 of the precious time resources of the judicial organs of the State, prosecution machinery and the police machinery. For these reasons, this Court is inclined to take the view that the inherent extraordinary powers conferred on this Court under Sec.482 of the Cr.P.C would be invoked, so as to interdict with the impugned criminal proceedings in this case. In that view of the matter, it is ordered that the impugned Annexure-A3 final report/charge sheet filed in Crime No.1175/2016 of Pangode Police Station, Thiruvananthapuram, which has led to the pendency of calendar case C.C.No.2989/2017 on the file of the Judicial First Class Magistrate’s Court-II, Nedumangad, Thiruvananthapuram District, in which the petitioner herein has been arrayed as the sole accused therein and all proceedings emanating therefrom as against the petitioner/accused therein, will stand quashed and set aside. Further it is made clear that the observations and findings made by this Court have been made only from the limited perspective to decide the issue, as to whether the impugned Annexure-A3 proceedings are liable for quashment. It is made clear and clarified that the proceedings at Annexure-A1 final report/charge sheet filed in Crime No.869/2016 of Pangode Police Station, which has now led to the pendency of calendar case C.C.No.3208/2016 on the file of the Judicial First Class Crl.M.C No.5383 of 2018 14 Magistrate’s Court-II, Nedumangad, Thiruvananthapuram District, shall proceed strictly in accordance with law and untrammelled and uninfluenced in any manner by the observations and findings and orders made by this Court in this case. 14. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as the Judicial First Class Magistrate’s Court-II, Nedumangad, Thiruvananthapuram District, who is dealing with C.C.No.2989/2017, for necessary information. With these observations and directions, the above Crl.M.C will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd Crl.M.C No.5383 of 2018 15 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**TRUE COPY OF THE FINAL REPORT IN**| |---|---| ||**C.C.NO.3208/2016**| |**ANNEXURE A2**|**TRUE COPY OF THE PRIVATE COMPLAINT IN**| ||**C.C.NO.2989/2017**| |**ANNEXURE A3**|**TRUE COPY OF THE FINAL REPORT IN**| ||**C.C.NO.2989/2017**| |**ANNEXURE A4(A)**|**TRUE COPY OF THE STATEMENT OF DEFACTO**| ||**COMPLAINANT**| |**ANNEXURE A4(B)**|**TRUE COPY OF THE STATEMENT OF CW3 IN THE**| ||**CHARGE SHEET**| |**ANNEXURE A4(C)**|**TRUE COPY OF THE STATEMENT OF NAZIMUDEEN**|