Saji P. Baby v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942** ## **Crl.MC.No.3309 OF 2020(C)** **AGAINST THE ORDER/JUDGMENT IN CC 556/2019 OF JUDL.M.F.C.I,ERNAKULAM** **CRIME NO.93/2013 OF RAILWAY POLICE STATION ERNAKULAM , ERNAKULAM** ## **PETITIONER/ACCUSED No.2:** **SAJI P.BABY, AGED 50 YEARS, S/O.LATE YOHANNAN BABY, PULIMOOTTIL HOUSE, PUNNAMOODU, MAVELIKARA, ALAPPUZHA -690 101.** **BY ADVS.** **SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW** ## **RESPONDENT/COMPLAIANANT:** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, RAILWAY POLICE STATION, ERNAKULAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY ADV.** **SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.3309 OF 2020(C)** **2** ## ALEXANDER THOMAS, J. -----------------------------------Crl.M.C. No.3309 of 2020 -----------------------------------Dated this the 18th day of September, 2020 ## **ORDER** The prayers in the above Criminal Miscellaneous Case filed under Section 482 of the Cr.P.C. are as follows: _“a. To quash Annexure AI FIR and Annexure A2 Final Report in Crime No.93/2013 of Railway Police Station, Ernakulam as against the Petitioner and all proceedings against the Petitioner based on Annexure A2 now pending as CC No.556 of 2019 of the Judicial First Class Magistrate Court-I, Ernakulam; b. Pass such other Orders and to issue such other directions which are deemed fit an expedient considering the facts and circumstances of the case.”_ 2. Heard Smt.Asha Elizabeth Mathew, learned counsel appearing for the petitioner (A2) and Sri.B.Jayasurya, learned Public Prosecutor appearing for the respondent-State. 3. The petitioner herein has been initially arrayed as accused No.2 among the two accused in the instant Crime No.93 of 2013 of Ernakulam Railway Police Station, which has been registered for offences punishable under Sections 294(b) & 509 read with Section 34 of the IPC on the basis of the First Information Statement of the lady de facto complainant in that regard. The Police, after investigation have filed the impugned Annexure A2 Final Report/Charge sheet in the said Crime No.93 of 2013, which initially led to the pendency of Calendar Case, C.C.No.1145 of 2013 on the file of the Judicial First **Crl.MC.No.3309 OF 2020(C)** **3** Class Magistrate Court–I, Ernakulam. The trial as against the petitioner was split up. The original case proceeded for trial in C.C.No.556 of 2019 on the file of the same Magistrate's Court as against A1. The case against A1 has resulted in acquittal as per Annexure A3 judgment dated 16.11.2019 in C.C.No.1145 of 2013 rendered by the Judicial First Class Magistrate Court – I, Ernakulam. 4. The petitioner seeks quashment of the impugned criminal proceedings on two grounds. First is that, even going by the admitted allegations raised in the impugned criminal proceedings, it can be seen that neither the offence as per Section 294(b) of the IPC nor the offence as per Section 509 of the IPC is made out. The second ground is that the trial court after due appreciation of evidence has conclusively found in Annexure A3 judgment after the completion of trial as against A1 that there are no prosecution materials to even remotely show that any offence has been committed as against PW2 therein (lady de facto complainant) etc. Hence, to fortify the second contention, the petitioner would place reliance on the decisions of this Court including the one rendered by the Full Bench of this Court in **Moosa v. Sub Inspector of Police** [2006 (1) KLT 552 (FB)] and **Ashraf Kancheriyil v. State of Kerala** [2011 (2) KHC 812], wherein it has been held that where the substratum of the case has **Crl.MC.No.3309 OF 2020(C)** **4** been collapsed after the conduct of the trial as against a co-accused, then in deserving case this Court can exercise its discretion under Section 482 of the Cr.P.C to quash the impugned criminal proceedings to the extent it affects the other co-accused persons against whom the trial was not earlier concluded due to split up, etc. 5. As regards the first contention, it is to be noted that the allegations in the impugned criminal proceedings set in motion on the basis of the First Information Statement of the lady de facto complainant are to the effect that while she was in a train journey on the day in question, she was lying on the top portion of the berth with her two year old child, which was mainly meant for keeping of luggage by the passengers concerned during day time. That while so, some of the passengers had objected against the de facto complainant using the entire stretch of the said berth by lying down there with the child on the ground that they could not keep their luggages. It is alleged that about five persons had raised this quarrel and some of them had abused her using abusive and humiliating words and that one of them had kept the luggage near to her by saying that he has to keep his luggage there, as such space is provided for keeping luggage as per the railway rules. Verbal altercation has occurred between the parties and it is on this basis that she has given the First Information Statement to **Crl.MC.No.3309 OF 2020(C)** **5** the Police, which led to the registration of the instant crime. The version of the lady de facto complainant both in the impugned criminal proceedings like FIR, FIS, Final Report etc. as well as in her deposition is in a uniform manner as stated above. The main allegation is that some out of the five persons, have used abusive and humiliating words to her. It is by now well settled by a series of rulings of this Court including the one rendered in cases as in **Latheef v. Sate of Kerala** [2014 (2) KLT 987], **Sangeetha Lakshmana v. State of Kerala** [2008 (2) KLT 745], **P.T.Chacko v. Nainan Chacko** [1967 KLT 799], etc. that abusive words, humiliating words or defamatory words will not as such amount to obscenity as defined in Section 292 of the IPC and that even if the words are abusive and humiliating, in order to make those words are obscene, punishable under Section 294(b) of the IPC it must necessarily satisfy the definition of obscenity contained in Section 292 of the IPC as Section 294 of the IPC does not define obscenity. To make the words so punishable under Section 294 of the IPC the alleged words must be in a sense lascivious, or must appeal to the prurient interest or will deprave and corrupt persons and that the alleged words must involve some lascivious elements arousing impure sexual thoughts or feelings in the minds of the hearers or words must have the effect of depraving **Crl.MC.No.3309 OF 2020(C)** **6** the persons and defiling the morals by sex appeal or desires etc. It would be profitable to refer to paragraph No.5 of the judgment of this Court in _**Latheesf’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 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.”_ Hence, there cannot be any doubt that the alleged humiliating and abusive words used by the accused persons cannot be said to fulfill the basic ingredients of the offence as per Section 294 (b) of the IPC. Further, on going through the First Information Statement, FIR etc. and even the deposition of PW2, it can be seen that in the heated altercation that took place between the lady on the one hand and some **Crl.MC.No.3309 OF 2020(C)** **7** of the passengers on the other hand, some of the passengers have allegedly used abusive and humiliating words to her. It has also to be borne in mind that it is admitted case of the de facto complainant that she along with 2 year old child was lying in the upper berth of the compartment, which was otherwise set up for keeping of luggage during the day time in train journey. The said act on the part of the de facto complainant was seriously objected to by some of the passengers in the very same train, which led to altercation and heated exchange of words between them. Hence, the petitioner is entitled to succeed for getting the offence as per Section 294(b) IPC quashed in view of the above said contentions. 6. The second contention is regarding the collapse of the substratum of the prosecution case due to the acquittal of the coaccused. On a perusal of Annexure A3 judgment dated 16.11.2019 as well as the depositions, it is seen that the trial court has conclusively held that evidence on record would clearly show that no offence has been committed as against PW2 by the passengers and that the events had taken place in the ordinary course of disputes between persons in a scenario like that and that the testimony of PW2 is far from satisfactory to prove the commission of the alleged offence punishable under Section 509 of the IPC. It would be profitable to refer to **Crl.MC.No.3309 OF 2020(C)** **8** ## paragraph No.10 of Annexure 3 judgment rendered by the learned ## Magistrate in C.C.No.1145 of 2013, which reads as follows: _"10. I have carefully considered the oral and documentary evidence tendered in this case. The allegation against A1 is that he abused PW2 in filthy language and also stared at her so as to insult her modesty. It has come out in evidence that PW2, a passenger in a general coach with her two year old child used the space ear marked for keeping luggages for sleeping which provoked the passengers who did not get enough space to keep their luggages. The version of PW2 regarding the incident indicate that trouble brewed when some passengers including A1 made attempt to keep their luggages in the place where PW2 was lying with her child unauthorizedly. The evidence of PW1 and PW5, the occurrence witnesses also would go to show that there was an altercation between PW2 and other passengers. PW3 the Civil Police Officer, who reached the scene on getting information deposed that he could not identify the persons involved in the incident and hence he collected the name of persons who allegedly witnessed the incident. The evidence on record is sufficient to show that there was no offence committed as against PW2 by the passengers. It is natural that when a person is found in the space ear marked for keeping luggages, there will be objection from other passengers and some may even attempt to keep their luggages in the place disregarding the persons unauthorizedly occupying the said space. In my view the testimony of PW2 itself is far from satisfactory to prove the commission of the offences punishable u/s.509 IPC by A1. The testimony of occurrence witness is also not in favour of the prosecution. There is absolutely no evidence tendered from the side of the prosecution to prove that A1 has done any act with an intention to insult the modesty of PW2. The prosecution has failed in proving the allegations levelled against the accused. Points are found accordingly against the prosecution."_ 7. On going through the prosecution materials as well as depositions, it can be seen that the above said findings of the learned Magistrate in Annexure 3 judgment for acquittal are reasonable and proper. Hence, this Court is constrained to take the view that the very substratum of the prosecution case has crumbled down on account of the above said conclusive findings made by the trial court in Annexure A3 judgment. Moreover, going by the overall nature of the incidents that occurred, this Court is also inclined to take the view that the further continuance of the impugned criminal proceedings will be an **Crl.MC.No.3309 OF 2020(C)** **9** abuse of the process of the court and it may even lead to unnecessary wastage of the precious time and resources of the court as well as the prosecution machinery. Hence, in the light of the above said dictum laid down by the Full Bench of this Court in **Moosa's case (supra)** [2006 (1) KLT 552 (FB)] and **Ashraf Kancheriyil's case (supra)** [2011 (2) KHC 812], since the very substratum of the prosecution case is crumbled, the impugned criminal proceedings are liable for interdiction on that ground as well. 8. Accordingly, it is ordered that the impugned Annexure A2 final report/charge sheet filed in the impugned Annexure A1 FIR in Crime No.93/2013 of Ernakulam Railway Police Station, which has now led to the pendency of Calendar Case in CC No.556 of 2019 on the file of the Judicial First Class Magistrate Court–I, Ernakulam and all further proceedings as against the petitioner herein (sole accused therein/original A2) and all further proceedings emanating therefrom as against the petitioner herein will stand quashed and set aside. 9. The petitioner will produce certified copies of this order before the Judicial First Class Magistrate Court-I, Ernakulam, who is dealing with C.C.No.556 of 2019 as well as before the Investigating Officer concerned for necessary information. **Crl.MC.No.3309 OF 2020(C)** **10** With these observations and directions the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** SCS **Crl.MC.No.3309 OF 2020(C)** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO.93/2013 OF ERNAKULAM RAILWAY POLICE STATION. ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.93/2013 OF ERNAKULAM RAILWAY POLICE STATION.** **ANNEXURE A3 CERTIFIED COPY OF THE JUDGMENT DATED 16/11/2019 OF THE JFCM-I COURT, ERNAKULAM IN CC NO.1145/2013.** //TRUE COPY// PA TO JUDGE