Sibi V.M. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** ## **BAIL APPL.NO.8377 OF 2019** **CRIME NO.334/2019 OF MANKARA POLICE STATION, PALAKKAD** ## **PETITIONER/ACCUSED:** **SIBI V.M., AGED 28 YEARS, S/O MANIKKAN, VEETHAMPULLY HOUSE, MANKURUSSI, PALAKKAD DISTRICT.** **BY ADVS. SRI.JACOB SEBASTIAN, SRI.K.V.WINSTON,SMT.ANU JACOB** ## **RESPONDENTS/STATE:** **1 STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 THE SUB INSPECTOR OF POLICE, MANKARA POLICE STATION, PALAKKAD DISTRICT - 678 613. SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ---------------------------------------B.A. No. 8377 of 2019 ---------------------------------------Dated this the 21[st] day of November, 2019 ## O R D E R The petitioner herein has been arrayed as accused No.1 among the three accused in the instant Crime No.334/2019 of Mankara Police Station, Palakkad, which has been initially registered for offfences punishable under Secs.294(b) & 34 of the IPC. The abovesaid crime has been registered on the basis of the FIS given by the lady defacto complainant on 11.11.2019 at about 9.40 pm in respect of the alleged incidents which happened on the previous day (10.11.2019) at about 1 pm. 2. The prosecution case in short is that, during the wedding function on 10.11.2019 at Mankurissi Temple, the petitioner had spoken badly to the younger daughter of the lady defacto complainant, about the lady defacto complainant and her elder daughter, and seeing the petitioner speaking ill about them, the lady defacto complainant got angry and told him to stay away from her, at which time the petitioner uttered extremely foul and abusive language by using the words "ഇരരികക്കെടടീ കപപൊലയപൊടടീ മമപൊമള" B.A. No. 8377 /2019 **==> picture [19 x 9] intentionally omitted <==** and the other two accused persons whose names are not known to the defacto complainant had also abused her in abusive and obscene language, etc. 3. It appears that the petitioner had surrendered before the learned Magistrate and applied for bail under Sec.437 of the Cr.P.C., upon which the learned Magistrate has passed the Anx.A2 order dated 13.11.2019 wherein it was ordered that the petitioner is granted interim bail on executing bond of Rs.25,000/- with two solvent sureties and that the petitioner should surrender on 15.11.2019 at 11 am, etc. In Anx.A2 order the learned Magistrate has taken the view that a reading of the FIS would show that the offence as per Sec.294(b) of the IPC will not be made out, but that the offence as per Sec.354 of the IPC could be attracted, and that the SHO was directed to consider allegations if any, as to what are the other offences that would lie against the accused and then to file a report before that court, etc. 4. It appears that, pursuant to that the Investigation Officer has added the offences as per Secs.354 & 509 of the IPC. The police has not so far taken any action to delete the originally B.A. No. 8377 /2019 ..4.. included offence as per Sec.294(b) of the IPC. It is now well established 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 mere use of abusive and vulgar language however obnoxious it may be, will not disclose the offence of use of obscene words as per Sec.294(b) of the IPC, and that the said offence could be made out only if the complainant has a specific case that the words used were lascivious which are capable of arousing impure and defiling sexual thoughts in the minds of hearers and that the complainant should also specifically and precisely state in the complaint that as to what exactly were such obscene words, etc. 5. In the instant case it is seen that the learned Magistrate is correct in holding that the offence as per Sec.294(b) of the IPC is not warranted. However, based on the observations made by the learned Magistrate that the offence as per Sec.354 of the IPC could be attracted, the police has now added the offences as per Secs.354 & 509 of the IPC, and has not deleted the offence as per Sec.294(b) B.A. No. 8377 /2019 ..5.. ## of the IPC. Sec.354 of the IPC reads as follows: ## _“_ _**354. Assault or criminal force to woman with intent to outrage her modesty.**_ _Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a terms which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”_ 6. It goes without saying that the element of assault or use of criminal force is one of the prime ingredients for the offence as per Sec.354 of the IPC apart from the intention to outrage the modesty of the lady victim. Assault, force and criminal force are defined in Secs.351, 349 and 350 of the IPC,which reads as follows: ## “ _**351. Assault**_ _Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault._ ## _**349. Force**_ _A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling:_ _PROVIDED that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described:First- By his own bodily power._ _Secondly-By disposing any substance in such a manner that the motion or change of cessation of motion takes place without any_ B.A. No. 8377 /2019 ..6.. _further act on his part, or on the part of any other person. Thirdly-By inducing any animal to move, to change its motion, or to cease to move._ ## _**350. Criminal force**_ _Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other._ ” 7. Explanation to Sec.351 of the IPC deals which with assault makes it clear like the day light that mere words do not amount to an assault, but the words which a person uses may give to his gestures and preparations such a meaning as may make those gestures or preparations amount to an assault. In the instant case the allegation in the FIS is to the effect the petitioner has uttered abusive words. There are no allegations in the FIS that the words so uttered by the petitioner has been followed by his showing any gestures or preparations as envisaged in Sec.351 of the IPC. Moreover, by mere uttering of the said abusive words, it cannot be said that the elements of force or criminal force as understood in Secs.349 and 35o of the IPC are made out. 8. Therefore only for the purpose of present application, B.A. No. 8377 /2019 ..7.. this Court is inclined to take the view that the prima facie the vital ingredients of Sec.354 of the IPC may not be made out in the factual context of allegations raised in the instant FIS. The only remaining offence is Sec.509 of the IPC which is admittedly a bailable offence. Sec.509 of the IPC reads as follows: ## _“_ _**509.Word, gesture or act intended to insult the modesty of a woman.**_ _Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object, shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.”_ 9. Indisputably the offence as per Sec.509 of the IPC is a bailable offence. In the light of these aspects this Court is inclined to take the view only for the limited purpose of present application that, though the view taken by the learned Magistrate that the offence as per Sec.294(b) of the IPC is not made out,etc is correct, the further views of the learned Magistrate that offence as per Sec.354 of the IPC is disclosed,etc may not really be tenable. Since the petitioner has already secured interim bail as granted by the learned Magistrate in terms of Anx.A2 order, which is current upto 15.11.2019, this Court as per the interim order passed in this B.A. No. 8377 /2019 **==> picture [20 x 9] intentionally omitted <==** application has ordered that the petitioner will continue to be on interim bail till 21.11.2019 (today). Therefore in these circumstances, the appropriate remedy of the petitioner is to have sought for orders under Sec.482 of the Cr.P.C., so as to order that the interim bail granted by the learned Magistrate as per Anx.A2 be made absolute, instead of filing an application under Sec.438 of the Cr.P.C., seeking anticipatory bail. However, without getting into those technicalities, this Court is inclined to exercise the discretionary powers conferred under Sec.482 of the Cr.P.C. and all other enabling powers to order and declare that the interim bail granted to the petitioner by the JFCM-II, Palakkad, as per Anx.A2 order on Crl.M.P. No.6353/2019 in Crime No.334/2019 of Mankara Police Station, is only to be treated as a bail on absolute terms. To that limited extend that Anx.A2 is not in favour of the petitioner, the same is interdicted, and it is ordered that the interim bail granted to the petitioner as per Anx.A2 will be treated as a bail granted to the petitioner on absolute basis. 10. Accordingly the matter will stand remitted to the JFCM-II, Palakkad, who is dealing with Anx.A2 order to pass B.A. No. 8377 /2019 **==> picture [19 x 9] intentionally omitted <==** consequent order in compliance with the abovesaid observations and directions made by this Court herein above. The matter is now remitted to the learned Magistrate essentially to pass orders so as to make the interim bail granted to the petitioner on absolute basis, and also to place necessary conditions to regulate the bail granted to the petitioner. Consequent orders shall be passed by the learned Magistrate within 10 days from the date of receipt of a certified copy of this order. 11. The Registry will forward a copy of this order to the JFCM-II, Palakkad, who is dealing with Crl.M.P. No.6353/2019 in Crime No.334/2019 of Mankara Police Station, for passing of such consequent orders, after hearing the counsel for the accused and the learned Prosecutor. With these observations and directions the above Bail Application will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG