Prabhakaran V. V. v. State of Kerala and Jisha Rajeev

Crl.M.C.No.4109/2020 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943_ ## _CRL.MC NO. 4109 OF 2020_ _CRIME NO.749/2019 OF Payyannur Police Station, Kannur AGAINST THE ORDER/JUDGMENT IN CC 1021/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS II, PAYYANNUR_ ## _PETITIONER/ACCUSED:_ _PRABHAKARAN V. V., AGED 63 YEARS, S/O.KUNHAMBU, VAZHAVALAPPIL, KARAMEL, VELLUR AMSOM, PAYYANNUR, KANNUR DISTRICT._ _BY ADVS. M.V.AMARESAN SRI.S.S.ARAVIND_ ## _RESPONDENTS/STATE & DE FACTO COMPLAINANT:_ _1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031._ _2 JISHA RAJEEV, PUTHIYA VEETTIL HOUSE, PATTUVATHERU, VALAPATTANAM, KANNUR DISTRICT, PIN - 670 010._ ## _BY ADV SRI.MAHESH V RAMAKRISHNAN_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.4109/2020 2 ## **O R D E R** The petitioner herein is the accused in C.C.No.1021/2019 on the file of the Judicial First Class Magistrate Court, Payyannur. The aforesaid case arises from crime No.749/2019 of Payyannur Police Station for the offences punishable under Section 341, 447, 354, 294 (b) and 506(1) IPC. The said crime was registered on the basis of Annexure-1 complaint submitted by the 2[nd] respondent herein. After completing the investigation, Annexure-2 final report was filed by the police for offences punishable under Sections 294(b) and 506(1) IPC. This Crl.M.C. is filed by the petitioner seeking to quash all further proceedings in the aforesaid case. 2. Heard Sri.S.S.Aravind, learned counsel for the petitioner, Sri.Mahesh V.Ramakrishnan, learned counsel for the 2[nd] respondent and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. Crl.M.C.No.4109/2020 3 3. The contention put forward by the learned counsel for the petitioner is that the allegation contained in Annexure-3 would not attract the offences alleged against him. The specific allegation contained in Annexure-3 is that, on 27.07.2019 at 11 am, the petitioner herein threatened the de facto complainant, by using abusive and obscene words namely “നായിന്റെ മോളെ�മ�ാന്റെ മോളെ� ഇനിയും ഈ സ്ഥലത്ത് കാല് കുത്തിയാൽ കൊന്നുകളയുംഈ സ്ഥലത്ത് കാല് കുത്തിയാൽ കൊന്നുകളയുംസ്ഥലതതകാല് കാല് കുത്തിയാൽ കൊന്നുകളയുംകുത്തിയാൽ കൊന്നുകളയുംന്റെ മോളെകാന്നുക�യും ഈ സ്ഥലത്ത് കാല് കുത്തിയാൽ കൊന്നുകളയും”. The contention of the learned counsel for the petitioner is that the words allegedly used by the petitioner would not attract the offences under Section 294(b) IPC. According to the learned counsel for the petitioner, unless the words used are such a nature that it is capable of arousing sexually impure thoughts in the minds of hearers, it cannot be treated as obscene, so as to attract the offence under Section 294(b). With regard to the allegations in relation to the offences under Section 506(1), it was pointed out that, mere statement of threat with out much seriousness , the aforesaid offence is also not attracted. It is also pointed out that, the offence punishable under Section 506 (1) IPC is a noncognizable offence and in case it is found that Section 294(b) is Crl.M.C.No.4109/2020 4 not attracted, the prosecution in respect of 506(1) will not sustain. In such circumstances, the learned counsel seeks for quashing the entire proceedings pursuant to Annexure-3. 4. On the other hand, the learned Public Prosecutor as well as the learned counsel for the 2[nd] respondent oppose the said contentions. The learned counsel for the 2[nd] respondent brought my attention to the contents of Annexure-1 complaint, wherein the allegations are clearly mentioned. According to him the contents of the same would attract the aforesaid offence. In such circumstances, dismissal of Crl.M.C. is sought for. 5. The first question that arises is whether the offence under Section 294(b) is attracted or not. The learned counsel for the petitioner would rely upon the judgments rendered by this Court in **P.T.Chacko v. Nainan Chacko [1967 KLT 799]** , **James Jose v. State of Kerala [2019(3) KLT 415], Latheef v. State of Kerala [2014(2) KLT 987]** and **Sajan C.K. v. State of Kerala and Another [2019(2) KLD 172]** . In **P.T.Chacko’s case** (supra), this Court considered the question of obscenity and it was observed as follows: Crl.M.C.No.4109/2020 5 “The only point argued was that the 1[st] accused has not committed an offence punishable under S.294(b) IPC, by uttering the words above mentioned. The courts below have held that the words uttered were obscene and the utterance caused annoyance to the public. I am not inclined to take this view. In The **Queen v. Hicklin 1863-3-Q.360 to 371 Cockburn C J.** laid down the test of “obscenity” in these words: “………..the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences. This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in **Ranjit D. Udeshi v. State of Maharashtra AIR. 1965 SC. 881 at 887. In Samuel Roth v. U. S. A. (1957) 354 U. S.476,** Chief Justice Warren said that the test of 'obscenity' is the "substantial tendency to corrupt by arousing lustful desires". Mr. Justice Harlan observed that in order to be 'obscene' the matter must "tend to sexually impure thoughts". I do not think that the words uttered in this case have such a tendency. It may be that the words are defamatory of the complainant, but I do not think that the words are 'obscene' and the utterance would constitute an offence punishable under S.294 (b) IPC.” Crl.M.C.No.4109/2020 6 6. Similarly, in **Latheef’s case** (supra) also the words which are similar in nature as used in this case, were considered by this Court to find out whether the same amounts to obscene words for the purpose of attracting offence under Section 294(b). The observations made by this Court in this regard is 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 Crl.M.C.No.4109/2020 7 **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.” 7. In the light of the principles laid down in the aforesaid judgments, unless words used are capable of arousing sexually impure thoughts to its hearers the offence under Section 294(b) will not get attracted. When considering the words used by the petitioner in this case, the same cannot be Crl.M.C.No.4109/2020 8 treated as obscene for the purpose of prosecution under Section 294(b) IPC. In such circumstances, the only conclusion possible is that the words contained in Annexure-3 would not attract the offence under Section 294(b) IPC. 8. What remains is the offence under Section 506(1) of IPC. The aforesaid offence is a non-cognizable offence, which cannot be investigated by the police unless a permission in this regard is obtained under Section 155(2). In this case, the investigation was conducted by the police only because of the reason that the offences alleged included a cognizable offence [S.294(b)] and therefore, the cognizance could be taken by virtue of Section 155(4) of Cr.PC . Since I have found that the offences under Section 294(b) is not attracted, the investigation and consequential prosecution launched against the petitioner cannot go on, in view of the fact that the aforesaid offence is a non-cognizable offence and acts alleged against the petitioner would not attract any other cognizable offences. In such circumstances, all further proceedings pursuant to Annexure-3 are unsustainable. Crl.M.C.No.4109/2020 9 In the result, this Crl.M.C.is allowed and Annexure-3 final report in Crime No.749/2019 of Payyannur Police Station and all further proceedings in C.C.No.1021/2019 on the file of Judicial First Class Magistrate, Payyannur are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/17.2.22 Crl.M.C.No.4109/2020 10 ## _APPENDIX OF CRL.MC 4109/2020_ _PETITIONER ANNEXURES_ _ANNEXURE 1 TRUE COPY OF COMPLAINT DATED 27.07.2019 FILED BY THE 2ND RESPONDENT BEFORE THE PAYYANNUR POLICE._ _ANNEXURE 2 TRUE COPY OF FIR NO.749/2019 DATED 27.07.2019 REGISTERED BY PAYYANNUR POLICE. ANNEXURE 3 TRUE COPY OF FINAL REPORT DATED 28.09.2019 IN CRIME NO.749/2019 OF PAYYANNUR POLICE._