Sen Surendran v. State of Kerala and Indira Devi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942 CRL.MC.NO.8973 OF 2016** **CC 1340/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PARAVOOR CRIME NO.361/2012 OF PARAVOOR POLICE STATION, KOLLAM** ## **PETITIONER/2ND ACCUSED:** **SEN SURENDRAN, AGED 25 YEARS, S/O.SURENDRAN, JENA DALE(UTHRAM)KONGAL CHERY, KOTTAPPURAM VILLAGE, PARAVOOR, KOLLAM.`** **BY ADVS. SRI.AJAYA KUMAR. G SRI.M.JAYAKRISHNAN SMT.V.SANDHYA VIJAYAN** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COUR OF KERALA,ERNAKULAM. 2 INDIRA DEVI D/O.CHANDRAMATHY,PARAMKIMAMVILA VEEDU, NEAR NEDUNGOLAM H.S.S,KOONAYIL CHERRY, PARAVOOR,KOLLAM. ADV. SRI.M.RAJESH SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------Crl.M.C. No. 8973 of 2016 --------------------------------------Dated this the 5[th] day of November, 2020 ## O R D E R The prayer in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows: _“quash Crime No.361/12 of Paravoor Police Station Kollam, renumbered as Crime No.725/CR/EOW-1/KL/12 of CBCID EOW-1 Kollam and all further Proceedings in C.C.No.1340/2013 pending before the JFMC Paravoor, to meet the ends of justice.”_ ## 2. Heard Sri.G.Ajayakumar, learned counsel appearing for the petitioner (A2) and Sri.B.Jayasurya, learned Public Prosecutor appearing for R-1 (State). Though contesting respondent No.2 (lady defacto complainant) has been served, there is no appearance for that party. 3. The petitioner herein has been arrayed as accused No.2 among the two accused in the instant Anx.A1 FIR in Crime No.361/2012 of Paravoor Police Station, Kollam district, registered on 15.3.2012 for offences punishable under Secs.294b, 506(i) r/w 34 of the IPC. The case was later transferred to the State Crime Branch (CID) wherein it was renumbered as Crime No.725/CR/EOW1/KL/12 of CBCID, EOW-1, KLM which is now pending as Crl.M.C. No. 8973 of 2016 ..3.. C.C.No.1340/2013 on the file of the JFCM, Paravoor, Kollam. 4. The brief of the prosecution case as against accused No.2 is that, on 13.11.2010 at 6.45 pm the 2[nd] respondent lady defacto complainant had reached the house of the petitioner for demanding the money which his mother (who happened to be a colleague of the 2[nd] respondent) had borrowed from her and upon demand for money on vengeance, accused No.1 who is the father of the petitioner, had scolded the 2[nd] respondent with abusive words. In the meanwhile the petitioner with a knife in his hand had threatened her that he will whack her neck if she enters the premises of his household, etc. Anx.A2 is the final report/charge sheet filed by the police in Anx.A1 crime which has now led to the pendency of aforementioned calendar case C.C.No.1340/2013 on the file of the JFCM, Paravoor, Kollam. 5. The petitioner would point out that prior to the registration of Anx.A1 FIR in the instant crime on 15.3.2012, earlier another FIR/crime was registered on 26.5.2011 as per Anx.A3 against the petitioner and his parents alleging that they have committed offences punishable under Secs.420, 506(ii) r/w 34 of Crl.M.C. No. 8973 of 2016 ..4.. the IPC, on the basis of the complaint/first information given by the 2[nd] respondent herein. In Anx.A3, the case of the 2[nd] respondent was in relation to the very same incident, which she has depicted for the institution of Anx.A1. The matter in earlier crime in Anx.A3 was also referred to the CBCID wherein it has been re-registered as Crime No.289/ER/2011. After completion of investigation, final report was submitted on 21.11.2013 in Anx.A3 crime as can be seen from Anx.A4 final report in that crime. It is stated that the matter in relation to Anxs.A3 and A4 is now pending as Calender Case C.C.No.47/2016 on the file of the JFCM, Paravoor, Kollam. 6. The petitioner would point out that the FIR in Anx.A1 was lodged with the delay of more than 1½ years and no explanation has been given for that delay. It is asserted by the petitioner that the incidents alleged in Anx.A1 FIR is the same as the one in Anx.A3 FIR except that the 2[nd] respondent has raised allegation that offence as per Sec.420 of the IPC is also involved. The incidents relating to the alleged intimidation and utterance of abusive words made in the subsequent crime as per Anx.A1 are Crl.M.C. No. 8973 of 2016 **==> picture [18 x 9] intentionally omitted <==** conspicuously absent in the earlier FIR registered as per Anx.A3. It is pointed out that, after completion of investigation in the earlier Anx.A3 crime, accused Nos.2 & 3 therein (the petitioner and his father) have been deleted from the accused array, and accused No.1 therein has been arrayed as the sole accused in Anx.A4, and the sole accused therein is the mother of the petitioner herein. It is brought to the notice of this Court that the petitioner’s father (original accused No.1 in Anx.A FIR ) is now no more. 7. After hearing both sides there is no serious dispute that the incidents in relation to earlier crime as per Anx.A3 is broadly the same as the one in the subsequent FIR as per Anx.A1 except for the differences noted herein above. The investigating agency after conducting exhaustive investigation has found that the allegations made as against accused Nos.2 & 3 in Anx.A3 FIR are not tenable, and accused Nos.2 & 3 therein have been deleted, and the sole accused in the final report submitted as per Anx.A4 in relation to Anx.A3 crime is accused No.1 therein, who has been arrayed as the sole accused therein, who happens to be the mother of the petitioner. The petitioner would point out that, though the Crl.M.C. No. 8973 of 2016 ..6.. 2[nd] respondent had initially arrayed the petitioner’s mother as an accused in the subsequent crime as Anx.A1 as can be seen from page No.6 of paper book, later it is seen that the 2[nd] respondent has struck off the petitioner’s mother’s name, and the petitioner’s father and the petitioner have been arrayed as accused persons in Anx.A1. Also, the institution of subsequent criminal proceedings which resulted in Anxs.A1 & A2 is an abuse of the process and would deserve interdiction. The inclusion of offence as per Sec.294(b) of the IPC in Anxs.A1 & A2 on the allegation that extremely abusive and foul language have been used by the accused persons etc will not disclose the offence as per Sec.294(b) of the IPC in view of the settled legal position in that regard. 8. It has been held by this Court in a series of decisions as in _**Latheef v. State of Kerala [2014 (2) KLT 987]**_ 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 Crl.M.C. No. 8973 of 2016 ..7.. 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. It is profitable to refer to paragraph No.5 of the judgment of this Court 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 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,_ Crl.M.C. No. 8973 of 2016 ..8.. _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.”_ 9. The allegation that abusive and foul language has been used by the accused persons will not disclose the offence as per Sec.294(b) of the IPC. Moreover, the allegation is to the effect that, the utterance of said abusive words has been made within the premises of the house of the petitioner and not in public place. Hence, the requirement that the alleged words should have been uttered in a public place is conspicuously absent in this case. Hence in any view of the matter, the offence as per Sec.294(b) of the IPC included in Anxs.A1 & A2 cannot be sustained even for a moment. The petitioner’s father (accused No.1) has already died. The allegations raised as per Sec.506(i) of the IPC made out in Anxs.A1 & A2 have already been dealt in Anxs.A3 & A4. Therefore, the continuance of impugned criminal proceedings at Anxs.A1 & A2 would be nothing but a sheer Crl.M.C. No. 8973 of 2016 **==> picture [19 x 9] intentionally omitted <==** abuse of the process of the court which would require interdiction at the hands of this Court in exercise of its inherent powers conferred under Sec.482 of the Cr.P.C. 10. In that view of the matter, it is ordered that, the impugned Anx.A2 final report filed in the impugned Anx.A1 FIR in Crime No.361/2012 of Paravoor Police Station, Kollam district, as against the petitioner herein (A2) which has now led to the pendency of calendar case C.C.No.1340/2013 on the file of the JFCM, Paravoor, Kollam district, will stand quashed and set aside. There is no dispute that accused No.1 therein (father of the petitioner) has already died. Hence the abovesaid quashment will relate to the entire proceedings at Anx.A2 in C.C.No.1340/2013 on the file of the JFCM, Paravoor, Kollam district. However, the proceedings at Anx.A4 Calender Case C.C.No.47/2016 on the file of the JFCM, Paravoor, Kollam, may continue in accordance with law untrammeled and uninfluenced in any manner by the observations and findings made by this Court herein above. 11. The petitioner will produce certified copy of this order Crl.M.C. No. 8973 of 2016 **==> picture [24 x 7] intentionally omitted <==** before the Investigating Officer concerned as well as before the JFCM, Paravoor, Kollam district, who is dealing with C.C.No.1340/2013 for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 8973 of 2016 ..11.. ## **APPENDIX** **PETITIONER'S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF FIR IN CRIME NO.361/2012 DATED 15.3.2012** **ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.1340/2013 DATED 31.8.14** **ANNEXURE A3 CERTIFIED COPY OF THE FIR REGISTERED AS CRIME NO.680/2011 OF PARAVOOR POLICE STATION DATED 26.5.2011 ANNEXURE A4 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.289/ER/2011 DATED 21.11.2013.**