High Court of KeralaSingle Judge2021-11-23Quashed

Shaiba A v. State of Kerala

Case / Petition Number:Crl.M.C.2068/21

Neutral Citation:null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M.R.Anitha
Judgment Date: 2021-11-23
Court Decision / Holding: Crl.M.C allowed. All further proceedings pending against Shaiba A as well as the second accused in CC 1183/2016 are quashed.
Final Disposition: Quashed

Parties to the Case

Appellants / Petitioners

Shaiba A

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
Pathumma Beevi

Legal Representation & Advocates

Counsels for Petitioners

• S. Rajeev
• K. K. Dheerendra Krishnan
• V. Vinay
• K. Anand
• M. S. Aneer

Counsels for Respondents

• Renjit George, Senior Government Pleader

Case Synopsis & Summary

Shaiba A, petitioner/accused no.1, challenged the continuation of proceedings in CC 1183/2016 before the Judicial First Class Magistrate, Kattakkada, for offences under Sections 294(b) and 323 read with 34 IPC. The Kerala High Court examined whether the allegations support invocation of 294(b), which criminalises obscene acts or words in public places. The prosecution case arose from a long-standing enmity with the de facto complainant over demolition of a poultry shed and encroachment into her property; the FIR and final report alleged that the second accused abused the de facto complainant, and the first accused physically assaulted her. However, the final report deleted the co-accused’s name and there were no materials establishing the lascivious or obscene content required for 294(b). The court cited Latheef v. State of Kerala (2014 (2) KHC 604) to emphasize that abusive or defamatory words alone do not amount to obscenity unless accompanied by lascivious elements or a thing that defiles morals by sexual appeal. Since the only proven offence appears to be Section 323 IPC, and because Section 155(2) Cr.P.C. requires police action with Magistrate’s order for a non-cognizable offence, continuing the prosecution would be an abuse of process. The court also relied on Rama Moorthy D v. Food Inspector and State v. Bhajan Lal to extend this relief to the other accused. Accordingly, Crl.M.C was allowed, and all further proceedings against the petitioner and the second accused were quashed.

Provisions of Law Cited

Section 294(b) IPCSection 294 IPCSection 323 IPCSection 34 IPCSection 155(2) Cr.P.C.

Legal Doctrines & Maxims

Abuse of process of court
Obscenity requires lascivious elements; abusive words alone do not amount to obscenity

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel argued that the accused are facing civil disputes and that the show-cause memo and disciplinary proceedings against the petitioner in her government service reflect a civil context. The essence of the contention was that no material exists to attract Section 294(b) IPC; the allegation concerns abusive language by the second accused toward the de facto complainant and a physical act by the first accused, but there is no lascivious or obscene content attributable to the petitioner. The FIR and final report lack ingredients of 294(b); 323 IPC is non-cognizable, and under Section 155(2) Cr.P.C. police cannot investigate without a Magistrate’s order. Given these points, continuing the prosecution would amount to abuse of process; the court was urged to quash the proceedings, applying the doctrine from Bhajan Lal and Rama Moorthy to extend relief to co-accused where positions are identical. Latheef’s guidance on obscenity was also cited to limit 294(b) to acts with lascivious or morally defiling content.

Contentions of Respondents

The document primarily presents the petition and the analysis of the court; explicit arguments by the State or the de facto complainant are not separately enumerated. The prosecution’s case is used to examine whether the ingredients of 294(b) are satisfied, and the court’s discussion centers on the lack of materials to attract 294(b) and the inapplicability of continuing a non-cognizable-typed investigation without a Magistrate’s order. The court relies on precedents to conclude that continuing the proceedings would amount to abuse of process and should be quashed.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Latheef v. State of Kerala	2014 (2) KHC 604	Positive	Used to hold that obscene content requires lascivious elements; abusive words alone do not satisfy obscenity under Section 294(b).
State of Haryana and Others v. Ch. Bhajan Lal and Others	AIR 1992 SC 604	Positive	Cited as authority for abuse of process leading to quashing of proceedings when continuation would be unjust.
Rama Moorthy D v. Food Inspector, Vadakara and Another	2012 (2) KHC 98	Positive	Used to extend the benefit of quashing to co-accused where factual and legal positions are the same.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943 CRL.MC NO. 2068 OF 2021** **CRIME NO.991/2015 OF Kattakada Police Station, Thiruvananthapuram CC 1183/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KATTAKADA,** ## **THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED NO.1** SHAIBA .A AGED 42 YEARS W/O. SHAHABUDEEN, KULANGARA VEEDU, KOMMIYAD, POOVACHAL P.O. PERUMKULAM VILLAGE, THIRUVANANTHAPURAM. BY ADVS. S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921) SRI.M.S.ANEER ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA (CRIME NO. 991/2015 OF KATTAKKAD POLICE STATION, THIRUVANANTHAPURAM DISTRICT). 2 PATHUMMA BEEVI, D/O. ASUMA BEEVI, S.P. MANZIL, KULANGRUAKUZHY, KONNIYOOR MURI, PERUMKULAM VILLAGE, THIRUVANANTHAPURAM 695 572. Sr.GP SRI. RENJIT GEORGE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.11.2021, THE COURT ON 23.11.2021 DELIVERED THE FOLLOWING: Crl.M.C.2068/21 2 ## **ORDER** Dated : 23[rd] November, 2021 1. Petitioner is the first accused in C.C.No.1183/2016 on the file of Judicial First Class Magistrate Court, Kattakkada, which is registered for the offence punishable under Sections 294(b), 323 r/w 34 IPC. This Crl.M.C has been filed seeking to quash the entire further proceedings against the petitioner in the above crime. 2. Prosecution case is that out of enmity towards the de facto complainant in demanding to demolish the poultry shed and toilet constructed by the accused persons encroached into her property, with the intention of causing hurt to her, on 9.8.2015 at about 8.00 am the second accused abused the de facto complainant using filthy language and pushed her down and the first accused fisted and hit on her back abdomen and on several parts of her body and thereby committed the offence aforementioned. 3. Annexure-I is the FIR and FIS registered in connection with the crime upon the complaint filed by the de facto Crl.M.C.2068/21 3 ## complainant. Annexure-II is the final report. 4. According to the learned counsel for the petitioner, petitioner is working as Junior Nurse in Health and due to the investigation of this crime, she had been issued with a show cause memo and disciplinary proceedings has been initiated against her. Annexure-III is the copy of the show cause memo issued by the District Medical Officer (Health), Thiruvananthapuram. The entire issue is civil dispute between the petitioner and her mother and due to the influence of the second respondent, this memo has been issued. Though a promotion list was published on 9.2.2021, she was not given promotion due to the pendency of criminal proceedings. According to the petitioner, second respondent and another attacked the petitioner and in connection with the same, she filed a private complaint and Annexure-IV is the copy of that complaint. So according to the learned counsel, even if the entire allegations in the complaint or in the final report is accepted, the offence under Section 294(b) IPC will not be attracted and Section 294(b) has been incorporated only for enabling the police to investigate the case because the other offence is only Crl.M.C.2068/21 4 323 IPC which is non-congnizable offence. 5. The main contention of the learned counsel is with regard to the absence of ingredients in the complaint and the final report in order to attract Section 294(b) IPC. 6. Section 294 IPC reads as follows :- 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. 7. In order to attract Section 294 (b), there should be materials to show that accused recites or utters any obscene words in or near any public place in order to cause annoyance to others. In this context the learned counsel placed reliance on **Latheef v. State of Kerala (2014 (2) KHC 604)** wherein while dealing with Section 294(b) IPC it has been held by a learned Single Judge of Crl.M.C.2068/21 5 this Court that abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined under law and 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. 8. In the present case, on going through Annexure-I FIS it could be seen that the allegation to attract Section 294(b) is attributed against the husband of the petitioner that too is only to the effect that he had abused the 2[nd] respondent. Though at the time of lodging the FIR he had been arraigned as first accused, while filing the final report Annexure-II, his name has been deleted. On examining the statement of the witnesses in the final report also there is nothing to indicate that any of the witnesses had given any statement so as to attract the ingredients of the offence under Section 294(b) against the petitioner or the 2[nd] accused. Hence prosecution of the petitioner under Section 294(b) is without any basic ingredients and would be an abuse of process of court. The remaining offence for which the Crl.M.C.2068/21 6 - petitioner is prosecuted is under Section 323 IPC which is a non cognizable offence. As per Section 155(2) of Cr.P.C, there is express bar for a police officer to investigate the case without the order of Magistrate. 9. Since in this case, if Section 294(b) is left out, the only offence remaining is one under Section 323 IPC. So the investigation conducted without the order of the Magistrate is not sustainable in law. In that event, the entire criminal prosecution initiated against the petitioner cannot be sustained in law and is liable to be quashed (See **State of Haryana and Others v. Ch.Bhajan Lal and Others (AIR 1992 SC 604 = 1992 SCC (Cri) 426).** 10. The learned counsel in this context brought to my attention **Rama Moorthy D v. Food Inspector, Vadakara and Another (2012 (2) KHC 98)** wherein it has been held that when a petition has been filed under Section 482 for quashing the proceedings filed by one of the accused, the benefit given to the petitioner/accused should be extended to the other accused persons also if in a case factual and legal positions are the same for all the accused. In this case, Annexure-IV complaint was filed by the de facto complainant against the second Crl.M.C.2068/21 7 petitioner and the husband of the present petitioner. While filing the final report, the name of the second accused in the complaint was deleted and the petitioner herein who is the wife of the second accused in the complaint has been implicated as the first accused and the first accused in the complaint was arrayed as the second accused. It has already been found that there are no materials to attract the offence under Section 294(b) as against both the accused as per the averments in the complaint as well as in the statement of the witness list attached to the final report. If that be the case, the remaining offence is only Section 323 as against the second accused also. Since it has already been found that the prosecution under Section 323 is barred in the absence of the ingredients of the offence under Section 294(b) IPC in view of the express bar under Section 155 (2) Cr.P.C, the second accused is also entitled for the same benefit in view of the dictum laid down by the learned Single Judge in **Rama Moorthy** 's case referred above. Continuation of the proceedings against the petitioner as well as the second accused would be an abuse of process of court and hence is liable to be 8 ## Crl.M.C.2068/21 quashed. 11. In the result, Crl.M.C allowed. All further proceedings pending against the petitioner/first accused as well as the second accused in C.C.1183/2016 on the file of Judicial First Class Magistrate court, Kattakkada, is hereby quashed. Sd/- **M.R.Anitha, Judge** Mrcs/12.11. Crl.M.C.2068/21 9 ## **APPENDIX OF CRL.MC 2068/2021** PETITIONER ANNEXURE ANNEXURE 1 ANNEXURE II A TRUE COPY OF THE FIR AND FIS IN CRIME NO. 991/2015 OF KATTAKKADA POLICE STATION. A TRUE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 991/2015 OF KATTAKKADA POLICE STATION. ANNEXURE III A TRUE COPY OF THE SHOW CAUSE MEMO DATED 19/06/2017 ISSUED BY THE DISTRICT MEDICAL OFFICER (HEALTH), THIRUVANANTHAPURAM. ANNEXURE IV TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER.