Soman v. State of Kerala

Crl.MC.No.4954 OF 2019(H) 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943** ## **Crl.MC.No.4954 OF 2019(H)** **CC 2938/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVARA, KOLLAM DISTRICT** **CRIME NO.2231/2015 OF CHAVARA POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED:** **SOMAN, AGED 55 YEARS, S/O.KUMARAN, RESIDING AT SOMSHAILAM VEEDU, KALARI, PANNMANA, CHAVARA, KOLLAM DISTRICT.** ## **BY ADV. SRI.S.SREEKUMAR (KOLLAM)** ## **- RESPONDENT/STATE AND DE FACTO COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM THROUGH THE SUB INSPECTOR OF POLICE, CHAVARA POLICE STATION, KOLLAM DISTRICT.** **2 THE SUB INSPECTOR OF POLICE, CHAVARA POLICE STATION, KOLLAM DISTRICT-691583** - **3 G.GOPAKUMAR** **AGED ABOUT 45 YEARS** **FATHER'S NAME NOT KNOWN, RESIDING AT PUTHIYA VEETIL, PARAVOOR, KOLLAM DISTRICT AND WORKING AS CIRCLE INSPECTOR OF POLICE, VARKALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT - 695 141** **R3 BY ADV. SRI.DINESH MATHEW J.MURICKEN** ## **PUBLIC PROSECUTOR SRI.RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.4954 OF 2019(H) 2 ## **CR** ## **ORDER** One of the main questions came up for consideration is whether it is necessary to state and re-produce the words uttered by the accused either in the complaint or in the FIS so as to constitute an offence under Section 294(b) IPC. The sole accused came up to quash the FIR and the final report for the offence under Section 353, 294(b) IPC and 117 (e) of K.P.Act on the ground that the words uttered were not re-produced or specifically pleaded in the FIS in order to attract Section 294(b) IPC and took reliance on the decisions rendered by this Court in **Sangeetha Lakshmana v. State of Kerala ( 2008(1) KHC 812), Latheef v. State of Kerala (2014(2)KHC 604)** and **Sajan C.K. v. State of Kerala and Another (2019 KHC 528)** . Further, it was contended that the offences under Section 353 IPC and 117(e) of K.P.Act were included without any legal basis. 2. The necessity to state the words uttered either in the FIS or in the complaint so as to constitute an offence under Section 294(b) IPC was elaborately considered by a learned Single Judge of this Court in **Preethimon v. State of Kerala (2008 (2) KLT 666)** and it was held that a vague or a general statement in the FIR that the accused showered obscene words is not enough to constitute the offence and that the Crl.MC.No.4954 OF 2019(H) 3 complainant or the first informant as the case may be shall state the words uttered by the accused by relying on **Santhilal v. Parameswaran Pillai (1988 (2) KLT SN 74)** . The relevant portion is extracted below for reference: “ A vague or general statement in the FIR that the accused showered obscene words is not enough to constitute an offence under S.294(b). It is necessary to state the words uttered by the accused. The prosecution would not be justified in bringing in the evidence for the first time the words allegedly spoken to by the accused, when the same is not recorded in the First Information Statement in a case instituted upon police report. The complaint or the FIR as the case may be, shall contain the words spoken to by the accused, which, according to the prosecution, would attract the offence under S.294(b) of the Indian Penal Code. Or else, there is every possibility of evidence being tendered putting forth any words as the prosecution witnesses may wish to put forward improving upon or adding to the allegation in the complaint or FIR causing great prejudice to the accused and depriving his right to have a fair trial.” 3. While dealing with the requirement of re-producing the exact words used or spoken to by the accused in the complaint or in the FIS in order to constitute an offence under Section 499 IPC, the Apex Court in **Balraj Khanna and Others v. Moti Ram [(1971) 3 SCC 399]** , after a detailed deliberations on English decisions and the decisions of the various High Courts - Charles Bhadlaugh and Annie Besant v. The Queen (1878) 3 QBD 607, The Capital and Counties Bank Ltd. v. George Henty and Sons (1882) 7 AC 741, Collins v. Jones (1955) 2 All ER 145, Harris v. Waree (1879) 4 CPD 125, Sarat Chandra Das v. The State (AIR 1952 Ori. 351), Krishnarao v. Firm Radhakisan Ramsahai (ILR 1956 Nag 236 : AIR 1956 Crl.MC.No.4954 OF 2019(H) 4 Nag. 264), Emperor v. Col. Bholanath (ILR 1951 All 313: AIR 1929 All 1), K.S. Namjundaiah v. Setti Chikka Thippanna (1952 Cr LJ 1633 : AIR 1952 Mys 123) and Dhruba Charan Khandal v. Dinabandhu Patri (AIR 1966 Ori 15), laid down the following : _“ After a consideration of the various decisions referred to above, we are of the opinion that the propositions laid down in English decisions dealing with libel that the actual words alleged to be used must be stated in the indictment cannot be applied on all force when dealing with the cases of defamation by spoken words under Section 499 IPC. It will be highly desirable no doubt if the actual words stated to have been used by an accused and which are alleged to be defamatory are reproduced by the complainant. The actual words used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief. But in cases where the words spoken are too many or the statements made are too long, in our opinion, it will be the height of technicality to insist that the actual words and the entire statements should be reproduced verbatim. The object of having, if possible, the actual words or the statements before the court is to enable it to consider whether those words or the statements are defamatory in nature. That purpose or object will be served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered. If the statements or the words placed before the court by the complainant are held to be not defamatory, it will mean that the complainant will have to lose. Therefore, it is to his interest to get a proper adjudication from the court that as far as possible the words spoken or the statements actually made and which he alleges to be defamatory are before the court. But a complaint cannot be thrown out on the mere ground that the actual words spoken or the statements made have not been stated in the complaint. From the point of view of accused also, it is necessary that the matters alleged to be defamatory in the complaint must be so stated as to enable them to know the nature of the allegations that they have to meet.”_ 4. The rationale applied by the Apex Court is with respect to a case of defamation by spoken words under Section 499 IPC and not with respect to an offence under Section 294(b) IPC. But in so far as obscenity Crl.MC.No.4954 OF 2019(H) 5 by spoken words, ballad or song which are the essence of offence under Section 294(b) IPC is concerned, the very same ratio is applicable. Section 499 IPC by its nature constitutes an offence based on words either spoken or intended to be read or by signs or by visible representations. In other words, the offence of defamation as defined under Section 499 IPC originates from the words spoken or intended to be read in one part and by signs or by visible representations in another part. The rationale applied by the Apex Court in **Balraj Khanna** 's case (supra) that there cannot be any insistence that the actual words spoken or the imputations in its verbatim should be reproduced by the complainant so as to attract Section 499 IPC has to be appreciated in reference to the first one among the two limbs of imputation i.e. (i) by words either spoken or intended to be read (ii) by signs or by visible representations. In the latter case, that is to say, by signs or by visible representations, it may not be possible to translate the same exactly in words. In that event, the sum and substance of the act done or a substantial statement regarding what actually done by the accused would be sufficient, especially when Section 499 IPC takes in imputation by means of sign and visible representations. In the case of defamation by spoken words under Section 499 IPC, if it is lengthy and not capable of re-production in verbatim, the sum and substance of the words of imputation alleged to have been uttered would be sufficient in order to maintain an action under Section 499 IPC. Crl.MC.No.4954 OF 2019(H) 6 5. In Section 294(b) IPC, singing or reciting any obscene song or ballad also included besides the obscene words, if any, uttered by the accused. So also it has got two specific limbs - (i) singing or reciting any obscene song or ballad (ii) uttering of obscene words. In the former case, it may not be possible to re-produce the exact song or the ballad as such in the complaint though the song or the ballad used perceivable to the sense with its meaning. In the latter case also, if the words used are lengthy, the same principle can be adopted relieving the complainant from the task of re-producing it in verbatim. The offence under Sections 499 and 294(b) IPC though governs different fields, the basic fabric of defamation by spoken words under Sections 499 IPC is resting on the same pedestal with that of Section 294(b) IPC an offence, in which the words used is the essence of the offence. Hence the rationale applied by the Apex Court in **Balraj Khanna'** s case (supra) is squarely applicable to an action for the offence under Section 294(b) IPC. It may not be possible invariably in all cases to re-produce the obscene song, ballad or the words, if it is lengthy, in the complaint so as to maintain an action under Section 294(b) IPC. Hence, the legal position laid down by this Court in **Preethimon** 's case (supra) and **Santhilal** 's case (supra) without noticing the rationale applied by the Apex Court in **Balraj Khanna** 's case (supra) cannot be held good law. 6. What is considered and laid down by this Court in **Sangeetha** Crl.MC.No.4954 OF 2019(H) 7 **Lakshmana v. State of Kerala ( 2008(1) KHC 812), Latheef v. State of Kerala (2014(2)KHC 604)** and **Sajan C.K. v. State of Kerala and another (2019 KHC 528)** is with respect to the question whether a mere abusive, humiliating or defamatory words by itself amounts to obscenity within the sweep of Section 294(b) IPC and not with respect to the requirement to recite and re-produce the actual words used so as to attract the offence. 7. The alleged incident happened within the premises of police station and there is an independent witness to the same, besides the police official who witnessed the alleged incident. The contention that the offences under Section 353 IPC and 117(e) of K.P.Act were included without any basis has to be agitated and adjudicated by evidence, for which there cannot be any exercise of jurisdiction under Section 482 Cr.P.C.. Crl.M.C. hence fails, dismissed without prejudice to the right of parties to exhaust all other remedies at the various stages of the proceedings. Sd/- ## **P.SOMARAJAN** sv ## **JUDGE** Crl.MC.No.4954 OF 2019(H) 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: ANNEXURE A1 THE CERTIFIED COPY OF THE FIR IN CRIME NO.2231/2015 OF THE CHAVARA POLICE STATION ANNEXURE A2 THE CERTIFIED COPY OF THE CHARGE IN CC NO.2938/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVARA, KOLLAM DISTRICT ANNEXURE A3 THE TRUE COPY OF THE DECREE IN O.S.NO.391/2006 OF THE PRINCIPAL MUNSIFF'S COURT, KOLLAM ANNEXURE A4 THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE CHAVARA POLICE STATION BY THE PETITIONER'S WIFE ALONG WITH TYPED COPY. ANNEXURE A5 THE TRUE COPY OF THE ORDER IN CRL.M.C.NO.8915/2018 OF THIS COURT. ANNEXURE A6 THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE CITY POLICE COMMISSIONER** /True Copy/ Sd/- P.S. to Judge