Sanjayan B. v. Sreelatha and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 8TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942 CRL.MC.NO.6937 OF 2016 CC 175/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, HARIPAD CRIME NO.1541/2015 OF HARIPAD POLICE STATION, ALAPPUZHA** ## **PETITIONER:** **SANJAYAN B., AGED 43 YEARS, S/O.BALAKRISHNAN VAIDYAR, MANGALATHU HOUSE, PILAPPUZHA, HARIPPAD-690514. BY ADV. SMT.VILASINI NAYAK** ## **RESPONDENTS:** |**1**|**SREELATHA,39 YEARS, W/O.SANJEEV,**| |---|---| ||**MANGALATHU HOUSE, PILAPPUZHA, HARIPAD-690514.**| |**2**|**STATE OF KERALA**| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, REPRESENTING C I OF POLICE,**| ||**HARIPAD POLICE STATION, ALLEPPEY.**| ||**ADV. SMT.A.SALINI LAL FOR R1.**| ||**SRI.B.JAYASURYA, PUBLIC PROSECUTOR FOR R2**| ||**ADV. SRI.R.SUNIL KUMAR**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. ------------------------------------Crl.M.C. No. 6937 of 2016 ------------------------------------Dated this the 8[th] day of September, 2020 ## O R D E R The above Criminal Miscellaneous Case has been filed under Sec.482 of the Cr.P.C. The 1[st] respondent lady defacto complainant has filed Anx.A1 private criminal complaint dated 4.9.2015 before the JFCM-II, Haripad, alleging that the petitioner who is her neighbour and who used to maintain animosity to the 1[st] respondent and her family members had on 14.8.2015 at about 11 am had trespassed into her house with a chopper (‘Vettukathi’) yelling out that he would chop into pieces the 1[st] respondent and her children and threatened them and had also uttered abusive words to her and thereby he has committed the abovesaid offences. The learned Magistrate had passed orders on Anx.A1 private criminal complaint under Sec.156(3) of the Cr.P.C. whereby the Haripad police had been directed to register a crime and investigate the same. Pursuant to said directions, the SHO, Haripad had registered Anx.A2 FIR in Crime No.1541/2015 of Haripad Police Station in which the petitioner has been arrayed Crl.M.C. No. 6937 of 2016 ..3.. as the sole accused for the offences punishable under Secs.447, 452, 506(ii) r/w 294 (b) of the IPC. The police after investigation has filed the impugned Anx.A3 final report/charge sheet against the petitioner/accused for offences punishable under Secs.447, 506(ii) r/w 294 (b) of the IPC and thereby deleted the offence as per Sec. 452 of the IPC. It appears that the JFCM-II, Haripad, had taken cognizance in the instant case which has led to the institution of C.C.No.175/2016 on the file of said Court. 2. One of the main contentions urged by the petitioner is that, the 1[st] respondent is his immediate neighbour and a family relative and that she is having animosity against the petitioner which is evident from Anx.A1 wherein she has alleged that the petitioner has not given the share of family property to his siblings, and that he has grabbed the entire property of the family, etc. Further that, the 1[st] respondent was taking a hostile attitude against the petitioner and was taking various steps to discourage the persons who are interested to seek marriage alliance with the 1[st] respondent, and these aspects are also dealt with in Anx.A4(b) petition dated 30.3.2015 submitted by the petitioner’s mother to Crl.M.C. No. 6937 of 2016 ..4.. the C.I.of Police, Haripad. Further that, it is only to wreck vengeance against the petitioner that the 1[st] respondent has raised false allegations in Anx.A1 which has led to the initiation of impugned criminal proceedings. 3. After going through the pleadings and materials on record it is seen that one of the offences now included in the impugned Anx.A3 final report/charge sheet is the one as per Sec.294(b) of the IPC apart from the other two offences as per Secs.447 & 506(ii) of the IPC. Sec.294(b) of the IPC deals with rendering of obscene acts and songs and the same reads as follows: _“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. ”_ 4. The main allegations raised against the petitioner in the FIR is that the petitioner has used extremely vulgar and abusive words when he had trespassed into her house, etc. It is by now well settled by a series of rulings of the Apex Court and various High Courts including this Court that abusive words, humiliating words or defamatory words will not as such will amount to obscenity as defined under law and even if the words allegedly used by the accused Crl.M.C. No. 6937 of 2016 ..5.. are abusive or humiliating, to make the words obscene, punishment under Sec.294(b) of the IPC it must satisfy the definition of obscenity. Sec.294 of the IPC does not define obscenity, but being a continuance of the subject dealt with under Section 292 IPC, the definition of obscenity under Sec.292(1) IPC has to be applied in a prosecution relating to Sec.294(b) of the IPC. Accordingly it has been held by this Court in decisions as in _**Latheef v. State of Kerala [2014 (2) KLT 987]**_ that in order to make the alleged acts of the accused punishable for the offence as per Sec.294(b) of the IPC, the alleged words must be in a sense lascivious or must appeal to the prurient interest so as to deprave and corrupt persons. It has been held by this Court that, to make the words 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. The position in this regard has also been so held in earlier decision of this Court as in _**P.T.Chacko v. Nainan Chacko [1967 KLT 799], Sangeetha Lakshmana v. State of Kerala [2008 (2) KLT 745], etc**_ . It will be profitable to refer to para 5 of the judgment of this Court in Crl.M.C. No. 6937 of 2016 ..6.. ## _**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 S.294(b) I.P.C., it must satisfy the definition of obscenity. S.294 I.P.C. does not define obscenity. Being a continuation of the subject dealt with under S.292 I.P.C. the definition of obscenity under 292(1) I.P.C. can be applied in a prosecution under S.294 I.P.C. 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 S.294 (b) I.P.C. 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.”_ 5. From the admitted prosecution materials in this case it can be seen that the allegation is that the petitioner had used vulgar and abusive words against the 1[st] respondent. There are no Crl.M.C. No. 6937 of 2016 ..7.. allegations that the words used by the petitioner were lascivious or it has appealed to the prurient interest so as to deprave and corrupt persons or that the alleged words has involved some lascivious elements arousing impure sexual thoughts or feelings or words, and had the effect of depraving persons and defiling morals by sex appeal or lustful desires. Hence it is well settled that merely because the words are extremely vulgar or abusive or is extremely humiliating etc will not necessarily make the use of such words attract the ingredients of obscenity as understood in Secs.292(1) and 294(b) of the IPC. In the light of these aspects this Court is inclined to take the view that the vital ingredients of the offence as per Sec.294(b) of the IPC is absent in this case and the matter would require interdiction. 6. In that view of the matter it is ordered that, the impugned criminal proceedings at Anx.A3 final report/charge sheet arising out of Anx.A2 Crime No.1541/2015 of Haripad Police Station, which has led to institution of C.C.No.175/2016 on the file of JFCM-II, Haripad, to the limited extent the offence as per Sec.294(b) of the IPC are alleged against the petitioner will stand Crl.M.C. No. 6937 of 2016 ..8.. quashed and set aside. This Court is not prepared to exercise its discretion so as to interdict with the other two offences alleged in this case viz, Secs.447 & 506(ii) of the IPC. The petitioner is given liberty to raise all his contentions at the time of trial or in case the charges in this case have not so far been framed by the learned Magistrate, then it will be open to the petitioner to seek the remedy of discharge if it is so maintainable, and issues in that regard are left open. 7. The petitioner will produce certified copy of this order before the JFCM-II, Haripad, as well as before the investigating officer concerned for necessary information and further action. With these observations and directions, and with the said liberty, the above Criminal Miscellaneous Case will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 6937 of 2016 ..9.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF CRMP NO 3849/2015 DTD 4/9/2015** **ANNEXURE A2 CERTIFIED COPY OF THE FIR NO 1541/2015 DTD 7/9/2015** **ANNEXURE A3 CERTIFIED COPY OF THE FINAL REPORT SUBMITTED ON 30/9/2015.** **ANNEXURE A4(A) TRUE COPY OF COMPLAINANT BY THE PETITIONER DTD 30/3/2015 BEFORE HARIPAD POLICE STATION, ALONG ITS RECEIPT DTD 30/3/2015** **ANNEXURE A4(B) TRUE COPY OF THE COMPLAINT BY THE PETITIONERS MOTHER DTD 30/3/2015 BEFORE HARIPAD POLICE STATION ALONG ITS RECEIPT DTD 30/3/2015**