PRADEEP KUMAR A.P.V. and JOSE XAVIER v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 CRL.MC NO. 7960 OF 2015** **CC 136/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KANNUR** ## **PETITIONER/1ST ACCUSED:** PRADEEP KUMAR A.P.V. AGED 48 YEARS S/O.GOPALAN, RESIDING NEAR JOURNALISM NAGAR HOUSING COLONY, MUNDAYAD, KANNUR DISTRICT, PRESENTLY WORKING AS DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY, DIVISIONAL OFFICE, KANNUR. BY ADV SRI.P.K.MANOJKUMAR ## **RESPONDENTS/STATE:** 1 THE STATE OF KERALA THROUGH THE STATION HOUSE OFFICER, KANNUR TOWN POLICE STATION, KANNUR DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SOBHA PRAKASH AGED 56 YEARS W/O.PRAKASH, RESIDING AT AKSHAYA, PALLIKUNNU, KANNUR DISTRICT, PRESENTLY WORKING AS ASSISTANT MANAGER, ORIENTAL INSURANCE COMPANY, DIVISIONAL OFFICE, KANNUR. BY ADVS. SMT.D.N.NISHANI SRI.P.U.SHAILAJAN SMT.MAYA.M.N, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.08.2023, ALONG WITH Crl.MC.6568/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C. Nos.6568 & 7960 of 2015 **2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945** **CRL.MC NO. 6568 OF 2015** **CC 136/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KANNUR** ## **PETITIONER/2ND ACCUSED:** JOSE XAVIER AGED 58 YEARS S/O T. XAVIER RESIDING AT KANDATHIL HOUSE, IMPERIAL AVENUE, THOPPIL, EDAPPALLY, ERNAKULAM DISTRICT, PRESENTLY WORKING AS REGIONAL MANAGER, ORIENTAL INSURANCE COMPANYREGIONAL OFFICE, ERNAKULAM BY ADV SRI.P.K.MANOJKUMAR ## **RESPONDENTS/STATE:** 1 THE STATE OF KERALA THROUGH THE STATION HOUSE OFFICER,KANNUR TOWNPOLICE STATION, KANNUR DISTRICT, REPRSENTEDBY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM 2 SHOBA PRAKASH W/O PRAKASH, RESIDING AT AKSHYAYA, PALLIKUNNU,KANNUR DISTRICT, PRESENTLY WORKING AS ASSISTANTMANAGER, ORIENTAL INSURANCE COMPANY, DIVISIONAL OFFICER, KANNUR BY ADVS.SRI.P.U.SHAILAJAN SMT.MAYA M.N, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.08.2023, ALONG WITH Crl.MC.7960/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C. Nos.6568 & 7960 of 2015 **3** ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------Crl.M.C. Nos.6568 & 7960 of 2015 ---------------------------------------------Dated this the 17[th] day of August, 2023** ## **JUDGMENT** These two criminal miscellaneous cases are filed by the accused in C.C.No.136/2015 on the file of the Judicial First Class Magistrate Court-I, Kannur. Petitioner in Crl.M.C.No.7960/2015 is the 1[st] accused and the petitioner in Crl.M.C.No.6568/2015 is the 2[nd] accused in the above case. The petitioners herein are working as Divisional Manager in Oriental Insurance Company, Divisional Office, Kannur and as Regional Manager in Oriental Insurance Company, Regional Office, Ernakulam respectively. Annexure-A1 FIR was registered against the petitioners alleging offences punishable under Sections 354, 294(b) and 506(i) read with Section 34 IPC. After investigation, final report was filed against the petitioners alleging offences punishable under Sections 294(b) and 506(i) read with Section 34 IPC. Annexure-A3 produced in these cases are the final report. 2. The prosecution case in C.C.No.136/2015 is that the 1[st] accused was working as Divisional Manager of the Oriental Insurance Company at Kannur wherein the 2[nd] respondent in these cases was working as the Assistant Manager. On 28-10- Crl.M.C. Nos.6568 & 7960 of 2015 **4** 2014, after requiring the presence of the defacto complainant in the cabin of the 1[st] accused, the 1[st] accused stated to the defacto complainant that the 1[st] accused is a scheduled caste and he can easily put the defacto complainant behind the bars if he so wishes. The 1[st] accused allegedly stated to the defacto complainant that she is a fool and is a person who is doing falsehood. Thereafter on 6-11-2014 at 7 p.m., the 1[st] accused stated to the defacto complainant that she will not only be thrown out of the office but will also be killed. The allegation against the 2[nd] accused, who is the Regional Manager of Oriental Insurance Company is that on 6-11-2014 at 4.45 p.m, he stated to the defacto complainant that the defacto complainant is a mental patient. It is also stated that the 2[nd] accused stated that the defacto complainant is not a person born in a good family. Hence it is alleged that the accused committed the offence. 3. According to the petitioners, even if the entire allegations in Annexure-A3 final report are accepted, the offence under Sections 294(b) and 506(i) read with Section 34 IPC is not made out. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 5. Annexure-A3 produced in these criminal miscellaneous Crl.M.C. Nos.6568 & 7960 of 2015 **5** cases is the final report. The allegation against the petitioners in the Final Report is extracted hereunder: “ കണണ്ണൂരരംശരം എസസ് എൻ പപാർകക്കിനടടുതസ് യണ് ക്കിറക്കി കകപാരംപ്ലക ൽ പപവർതക്കിചടു വരടുന്നതടുരം കണണ്ണൂർ മടുനക്കിസക്കിപപാലക്കിറക്കി _C. B.No.1651_ നമ്പർ പതക്കിച ഓറക്കിയനസ്റൽ ഇൻഷടുറൻസസ് കമ്പനക്കി ഡക്കിവക്കിഷണൽ ഓഫഫീസക്കിൽ വചസ് _1-)o_ സപാകക്കിയയ _28.10.14_ തഫീയ്യതക്കി _1-)o_ പപതക്കിയടുയട കകപാബക്കിനക്കിൽയവചടു _"_ ഞപാൻ _SC_ വക്കിഭപാഗകപാരനപാണസ് ഞപാൻ വക്കിചപാരക്കിചപാൽ നക്കിയന്ന അഴക്കി എണക് ടുരം നഫീ മണക്കിയപാണസ് കളവപായക്കി കപാരകങ്ങൾ യചയ്യടുന്ന കള്ളതക്കി ആണസ് _,_ എനസ്യറ ജപാതക്കി കപരസ് വക്കിളക്കിചടു അപമപാനക്കിചടു എന്നസ് പറഞസ് നക്കിയന്ന തടുറടുങക്കിലടകടുരം എന്നടുരം _06.11.2014_ തഫീയതക്കി _19_ മണക്കി സമയതസ് നക്കിയന്ന ഓഫഫീസക്കിൽ നക്കിന്നസ് പടുറതപാകടുക മപാപതമല്ല യകപാല്ലടുരം എന്നസ് പറഞസ് ഭഫീഷണക്കി യപടടുതടുകയടുരം _2-)o_ പപതക്കി _06.11.14_ തഫീയതക്കി _16.45_ മണക് സ് _1-)o_ പപതക്കിയടുയട കകബക്കിനക്കിൽ വചസ് നക്കിങ്ങൾകസ് മപാനസക് കരപാഗമപാണസ് നക്കിങ്ങൾ നല്ല കടുടടുരംബതക്കിൽ പക്കിറന്നതല്ല എന്നസ് ചഫീത വക്കിളക് ടുകയടുരം ഓഫഫീസക്കിൽ നക്കിന്നസ് പടുറതപാകടുരം എന്നസ് പറഞടു ഭഫീഷണക്കിയപടടുതടുകയടുരം യചയയക്കിരക് യക്കിൽ _1, 2_ പപതക് ൾ കമൽ വകടുപടുകൾ പപകപാരരം ശക് പാർഹമപായ കടുറരം ” യചയയക്കിരക് ടുന്നടു _._ 6. Whether the above allegation will attract Sections 294(b) and 506(i) IPC is the question to be decided in these cases. It will be better to extract Section 294(b) IPC: Crl.M.C. Nos.6568 & 7960 of 2015 **6** “Whoever, to the annoyance of others-- (a)………….. (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.” 7. The Apex Court, in **N.S. Madhanagopal & Another v.** **K.Lalitha [2022 LiveLaw (SC) 844]** , examined the main ingredients of Section 294(b) IPC. It will be better to extract the relevant portion of the above judgment: “Thus, all that has been averred in the complaint is that the appellant Madanagopal hurled unparliamentary words towards the complainant. Section 294(b) of the IPC talks about the obscene acts and songs. Section 294 of the IPC as a whole reads thus: "294.Obscene acts and songs - Whoever, to the annoyance of others - (a) does any obscene act in any public place, or (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." It is to be noted that the test of obscenity under Crl.M.C. Nos.6568 & 7960 of 2015 **7** Section 294(b) of the I.P.C. 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 following passage from the judgment authored by Justice K.K. Mathew (as his Lordship then was) reported in **P.T. Chacko v. Nainan (1967 KLT 799)** explains as follows: “The only point argued was that the 1st accused has not committed an offence punishable under Section 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, [L.R.] 3 Q.B. 360 at 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. In Samuel Roth v. U.S.A., 354 US 476 (1957), 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”. It has to be noted that in the instance case, the absence of words which will involve some lascivious elements arousing sexual thoughts or feelings or words cannot attract the offence under Section 294(b). None of the records disclose the alleged words used by the accused. It may not be the requirement of law to reproduce in all Crl.M.C. Nos.6568 & 7960 of 2015 **8** cases the entire obscene words if it is lengthy, but in the instant case, there is hardly anything on record. Mere abusive, humiliating or defamative words by itself cannot attract an offence under Section 294(b) IPC. To prove the offence under Section 294 of IPC mere utterance of obscence words are not sufficient but there must be a further proof to establish that it was to the annoyance of others, which is lacking in the case. No one has spoken about the obscene words, they felt annoyed and in the absence of legal evidence to show that the words uttered by the appellants accused annoyed others, it can not be said that the ingredients of the offence under Section 294 (b) of IPC is made out.”(underline suppled) 8. In **Latheef v. State of Kerala [2014 (2) KHC 604]** this Court considered the ingredients of Section 294(b) IPC. It will be better to extract the relevant portion of that judgment: “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 Crl.M.C. Nos.6568 & 7960 of 2015 **9** 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.”(underline supplied) 9. In **Abdul Razak v. State of Kerala and Another** **[2019 (5) KHC 950]** , this Court once again considered the ingredients of Section 294(b) IPC. It will be better to extract paragraphs 11 and 12 of the same: Crl.M.C. Nos.6568 & 7960 of 2015 **10** “11. Further, the allegation of the 2nd respondent lady is that, when she had objected the petitioner from taking her photographs,he had used obscene words. There is no allegation anywhere in the FIS as to what exactly was the alleged obscene words. It 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 [1967 KLT 799] and Sangeetha Lakshmana v. State of Kerala [2008** **(2) KLT 745]** , that abusive or humiliating or defamatory words will not in as such amount to obscenity as defined in law and that even if the words used by accused are in fact highly abusive, humiliating and defamatory in nature. Inorder to make such words obscene, punishable under Sec.294(b) of the IPC, it must satisfy the definition of obscenity as contained in Sec.292 of the IPC. It has been held that to make obscene, the alleged words must involve some lascivious elements, arousing impure sexual thoughts or feelings or words, and must have the effect of depraving persons and defiling morals by sex appeal or lustful desires. 12. Further it is also well settled by a series of rulings of this Court that the complaint should necessarily disclose as to what exactly are the alleged words used by the accused. In the instant case, both the above said aspects are conspicuously absent, and hence it is only to be held that the offence as per Sec.294(b) of the IPC is also not made out. Accordingly this Court is inclined to take the view that the initiation and continuance of the impugned criminal proceedings is nothing but a shear abuse of the process of Court, inasmuch as it is a futile exercise and its further continuance would only amount to wasting precious resources and time of the police investigation machinery, Crl.M.C. Nos.6568 & 7960 of 2015 **11** prosecution agency and the courts.” 10. The Division Bench of this Court in **Dhanisha v. Rakhi N. Raj and Another [2012 (2) KHC 111]** observed that, to attract an offence under section 294(b), the words uttered must be obscene and it must be to the annoyance of others and it must have been uttered in or near any public place. 11. In the light of the above dictum laid down by the Apex Court and this Court, the allegation in these cases regarding the offence under Section 294(b) IPC is to be considered. I am of the considered opinion that, even if the entire allegations in Annexure-A3 final report is accepted in toto, the offence under Section 294(b) IPC is not made out in these cases. It may be defamatory or insulting words. Therefore, I am of the considered opinion that Section 294(b) IPC is not attracted in these cases. 12. What remains is Section 506(i) IPC. The Apex Court in **Mohammad Wajid and Others v. State of U.P. and Others [MANU/SC/0846/2023: 2023/INSC/683]** observed that before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant. In **Anto Joseph v. State of Kerala and Others** **[2016 (3) KHC 832],** this Court considered the ingredients of Section 506(i) IPC. It will be better to extract paragraph 22 of the Crl.M.C. Nos.6568 & 7960 of 2015 **12** ## above judgment: “In order to attract the offence, the threat must be with intent (i) to cause alarm to that person or (ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat or (iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat. In other words, the gist of the offence is the effect which the threat is intended to have upon the mind of the person threatened, and it is clear that before it can have any effect upon his mind, it must be either made to him by the person threatening or communicated to him in some way.” 13. In the light of the above principle laid down by this Court and the Apex Court, this Court has to verify whether any offence under Section 506(i) IPC is made out in the facts and circumstances of the case. I am of the considered opinion that even if the entire allegations in Annexure-A3 final report extracted in paragraph 5 is accepted in toto, the offence under Section 506(i) IPC is also not made out. In the result, I am of the considered opinion that even if the entire allegation in Annexure-A3 final report is accepted, the offence under Sections 294(b) and 506(i) read with Section 34 IPC is not made out. Therefore, the continuation of proceedings based on Annexure-A3 final report against the petitioners in these cases Crl.M.C. Nos.6568 & 7960 of 2015 **13** is an abuse of process of the Court. Therefore, these Criminal Miscellaneous Cases are allowed. All further proceedings against the petitioners in C.C.No.136/2015 on the file of the Judicial First Class Magistrate Court – I, Kannur based on Annexure-A3 final report are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** JV Crl.M.C. Nos.6568 & 7960 of 2015 **14** ## **APPENDIX OF CRL.MC 6568/2015** PETITIONER ANNEXURES ANNEXURE 1: TRUE COPY OF THE FIR IN CRIME NO. 1647/14 OF KANNUR TOWN POLICE STATION ANNEXURE 2: TRUE COPY OF THE CERTIFIED COPY OF THE PETITION DT. 7/11/14 FILED BY THE 2ND RESPONDENT BEFORE THE DEPUTY SUPERINTENDENT OF POLICE, KANNUR ANNEXURE 3: TRUE COPY OF CERTIFIED COPY OF THE FINAL REPORT IN CRIME 1647/14 OF KANNUR TOWN POLICE STATION Crl.M.C. Nos.6568 & 7960 of 2015 **15** ## **APPENDIX OF CRL.MC 7960/2015** ## PETITIONER ANNEXURES ANNEXURE A1- THE TRUE COPY OF THE FIR IN CRIME NO.1647/2014 OF KANNUR TOWN POLICE STATION. ANNEXURE A2- THE TRUE CERTIFIED COPY OF THE PETITION DATED 7.11.2014 FILED BY THE 2ND RESPONDENT BEFORE THE DEPUTY SUPERINTENDENT OF POLICE, KANNUR. ANNEXURE A3- THE TRUE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1647/2014 OF KANNUR TOWN POLICE STATION. ANNEXURE A4- THE TRUE COPY OF THE SUMMONS ISSUED TO THE PETITIONER IN C.C.NO.136/2015 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT, KANNUR. ANNEXURE A5- THE COMPLAINT DATED 9.4.2014 ADDRESSED BY SRI.K.A.SAJEEVAN, ADVOCATE, THALASSERY. ANNEXURE A6- THE COMPLAINT DATED 30.10.2014 ADDRESSED BY SRI.P.P.VENU, ADVOCATE, KANNUR. ANNEXURE A7- THE COMPLAINT DATED 20.9.2014 ADDRESSED BY SRI.K.M.VASANTHARAM, ADVOCATE, THALASSERY. ANNEXURE A8- THE COMPLAINT DATED 14.8.2014 ADDRESSED BY SRI.K.P.RAJENDRA BABU, ADVOCATE, KANNUR. ANNEXURE A9- THE COMPLAINT DATED 25.9.2014 ADDRESSED BY SRI.PREMAN MAVILA, ADVOCATE, KANNUR. ANNEXURE A10- THE MASS PETITION DATED 2.8.2013 SUBMITTED BY THE OTHER STAFF OF THE DIVISIONAL OFFICE OF THE ORIENTAL INSURANCE COMPANY KANNUR.