P. Vidyadharan v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 04TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941** ## **Crl.MC.No.3003 of 2019** **AGAINST THE ORDER/JUDGMENT IN CC 100/2019 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE ,TRIVANDRUM CRIME NO.1872/2018 OF Mecical College Police Station , Thiruvananthapuram** ## **PETITIONER/S:** **P.VIDHYADHARAN, AGED 76 YEARS, S/O.LATE PADMANABHAN, T.C.3/122(1), RAMKAMAL, PARUTHIPPARA, PATTOM P.O., THIRUVANANTHAPURAM- 695004.** **BY ADVS. SRI.AYYAPPAN SANKAR SMT.S.HRIDYA SRI.JAYAN JOHN** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031. 2 SUB INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM- 695011. 3 SISAMMA JOHNY @ CEAZAMMA P.GEORGE, AGED 57 YEARS W/O.JOHNY P.GEORGE, PONNAKKUDIYIL VEEDU, SHAWALOSE LANE, NALANCHIRA P.O., THIRUVANANTHAPURAM- 695015. BY ADVS. SRI.RAM MOHAN.G. SRI.AJIT G.ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.G.P.SHINOD** ## **OTHER PRESENT:** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR FOR R1 AND R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 3003 of 2019 ================== Dated this the 4[th] day of June, 2019 **O R D E R** The prayer in this Criminal Miscellaneous Case filed under Sec.482 of the Code of Criminal Procedure, 1973 are as follows: _“.... to quash F.I.R. and Final Report in Crime No.1872/2018 of Medical College Police Station, Thiruvananthapuram and all further proceedings therein pending as C.C.No. 100/2019 on the file of the Addl. Chief Judicial Magistrate Court, Thiruvananthapuram.”_ 2. The allegations in Anx. A1 FIR registered on 14.12.2108 are as follows:- That on 28.11.2018, the 3[rd] respondent/ defacto complainant went to her property lying adjacent to petitioner's residence along with her driver (CW2) and some migrant workers, for cleaning her property. On seeing the petitioner standing in his compound, at about 12.30 p.m. the defacto complainant asked him to cut and remove branches of the trees extended on the property of the defacto complainant. That infuriated by this, the petitioner verbally abused her and told her that he would kill her showing a knife. It is also alleged that her modesty was outraged by the verbal abuse and the petitioner thereby committed offences under Sec. 294(b), 506 and 509 of the I.P.C. The petitioner states that he is innocent of the allegations. It is in the light of these averments and contentions that the petitioner has filed the instant Crl.M.C. with the aforementioned Crl.M.C.3003/19 - : 3 :- prayers. 3. Heard Sri.Ayyappan Sankar, learned counsel appearing for the petitioner and Smt.Priya Shanavas, learned Prosecutor appearing for respondents 1 & 2. Though contesting respondent No.3 has been duly served, there is no appearance for that party. 4. Now it is common ground that though initially the offences alleged against the petitioner as per the impugned Anx. I, which has led to the institution of Crime No.1872/2018 of Medical College Police Station, Thiruvananthapuram, are those punishable under Secs. 294(b), 506 and 509 of the I.P.C., the Police, after investigation has now filed the impugned Anx. II final report/charge sheet in the said crime, which has now led to the institution of Calendar Case, C.C.No. 100/2019 on the file of the Addl. Chief Judicial Magistrate's Court, Thiruvananthapuram, only for the offences as per Sec. 294(b) and Sec. 506(ii) of the I.P.C. 5. The only allegation in support of the inclusion of the offence under Sec. 294(b) of the I.P.C. is that the petitioner has used abusive and foul words, etc. It it is now by well established that usage of highly abusive and defamatory and foul language will not by itself constitute the offence as per Sec. 294(b) of the I.P.C. and that in order to attract the offence under Sec.294(b) of the I.P.C., the ingredient of Crl.M.C.3003/19 - : 4 :- obscenity as envisaged in Sec. 292 of the I.P.C. should be satisfied and that in other words, the words, said to have been used by the accused, should lascivious, which is sufficient enough to arouse impure sexual thoughts in the minds of the hearers, etc. The law in this regard is now well settled by a series of rulings, as in _**Latheef v. State of Kerala**_ [2014(2) KLT 987], _**P.T. Chacko v. Nainan Chacko**_ reported in 1967 KLT 799, _**Sangeetha Lakshmana v. State of Kerala**_ reported in 2008 (2) KLT 745, etc. It will be profitable to refer to paragraph 5 of the case in _**Latheef's case supra**_ , 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 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_ Crl.M.C.3003/19 - : 5 :- _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.'_ 6. Hence in the instant case, it goes beyond any doubt that the offence of obscenity as per Sec. 294 of the I.P.C. is not attracted in the petitioner using defamatory and abusive language and therefore the offence under Sec.294(b) of the I.P.C. for the alleged use of obscene words is not attracted and therefore the vital ingredients are not attracted. Moreover, it appears that the scene of occurrence is the private property of the party concerned and therefore, it appears that there is no allegation that allegedly obscene words have been used in a public place. For the above reasons, It is only to be held that offence under Sec. 294(b) is not disclosed in this case. 7. The only remaining offence now alleged against the petitioner as per the impugned Anx. 2 final report/charge sheet is the one as per Sec. 506(ii) of the I.P.C. The petitioner has raised a contention that the very allegation of the prosecution is that the petitioner while standing in his own property, has shown knife to the lady defacto complainant and he had said that he would kill her and that the offence under Sec.506(ii) of the I.P.C. is not disclosed inasmuch as the allegation of mere use of words without any overtacts will disclose that offence. That apart, it can be seen that the dispute Crl.M.C.3003/19 - : 6 :- has arisen primarily out of property disputes between the parties inasmuch as the 2[nd] respondent defacto complainant had demanded that the branches of the trees lying in the compound of the petitioner have overgrown into the property of the respondent defacto complainant and that such extended branches of trees should be cut and removed, etc. which led to disputes and animosity between the parties. It is the very case of the prosecution that the impugned act was done by the petitioner while standing in his own property. Therefore, the allegation primarily arises out of such property disputes which has arisen between neighbours mainly out of ego clashes of the persons concerned. Since the only other remaining offence is as per Sec. 506(ii) of the I.P.C., this Court is of the view that further continuance of the instant impugned criminal proceedings may be mere wastage of the precious time and resources of the prosecution machinery and the judicial fora inasmuch as the disputes have arisen on account of fights between neighbours and that too, in respect of cutting of branches of the tree. Therefore, this Court feels that continuance of the impugned criminal proceedings should be interdicted. For these reasons, it is ordered that the impugned Anx.II final report/charge sheet filed in Crime No. 1872/2018 of Thiruvananthapuram Medical College Police Station, Crl.M.C.3003/19 - : 7 :- which has now led to the institution of Calendar Case, C.C.No. 100/2019 on the file of the file of the Addl. Chief Judicial Magistrate's Court, Thiruvananthapuram against the petitioner accused and all further proceedings taken in pursuance thereof against the accused will stand quashed. The petitioner will procedure certified copy of this order before the investigating officer concerned and the court below concerned for information. The office of the Advocate General will also forward certified copy copy of this order before the investigating officer for information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** Crl.M.C.3003/19 - : 8 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I CERTIFIED COPY OF THE F.I.R IN CRIME NO.1872/2018 OF MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM. ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1872/2018 OF MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM. ANNEXURE III TRUE PHOTOCOPY OF EXECUTION PETITION FILED IN THE SUB COURT, THIRUVANANTHAPURAM FOR EXECUTION OF DECREE IN O.S.NO.8/2007.**