Sreejith v. State of Kerala & Nayana (de facto complainant)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942** ## **Crl.MC.No.5170 OF 2016** **AGAINST THE ORDER/JUDGMENT IN CC 201/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KATTAKADA** ## **CRIME NO.1700/2015 OF Poojappura Police Station , Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **SREEJITH** **AGED 28 YEARS, S/O.PRABAKARAN NAIR, RESIDING AT SREERAGAM VEEDU, KPWRA-168, CHETHRIMOOLA LANE, KANJIRAM PARA, SASTHAMANGALAM, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SMT.MAJIDA.S** ## **- RESPONDENT/STATE & DE FACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** - **2 NAYANA** **AGED 45 YEARS, D/O.RAJESHWARI, RESIDING AT BATHLAHEM VEEDU, POTTANKAVU CHANDAN VILLA D2, KOLLAMCODE MURI, KULATHUMMAL VILLAGE, THIRUVANANTHAPURAM DISTRICT-695124.** **BY ADV.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.5170 OF 2016** **2** **ALEXANDER THOMAS, J. -----------------------------------Crl.M.C. No.5170 of 2016 -----------------------------------Dated this the 1[st] day of December, 2020** ## **ORDER** The prayer in the afore-captioned Criminal Miscellaneous Case filed under Section 482 of Cr.P.C. is as follows: _“...to allow this Criminal Miscellaneous Case and quash Annexure-A1 Final Report and all proceedings in C.C. No.201/2016 on the file of the Judicial First Class Magistrate Court, Kattakkada.”_ 2. Heard Smt.S.Majida, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R1-State of Kerala. Though contesting respondent No.2 (lady de facto complainant) is duly served, there is no appearance for that party. The petitioner herein has been arrayed as the sole accused in the instant calendar case, C.C.No.201 of 2016 on the file of the Judicial First Class Magistrate Court, Kattakkada, for offences punishable under Sections 447, 294(b),506(1) of the IPC and Section 23 of Juvenile Justice (Care and Protection of Children) Act, 2000, pursuant to the submission of Annexure A1 final report/charge sheet consequent to the completion of the investigation in Crime No. 904 of 2015 of Kattakkada Police Station. **Crl.MC.No.5170 OF 2016** **3** 3. The brief of the prosecution case is that the petitioner/accused in order to wreak vengeance on the 2[nd] respondent – lady de facto complainant for dismissing him from the job and trespassed into her house on 29.05.2015 at about 6 p.m. and used filthy and obscene language and assaulted the dog in her house and kicked her minor son who objected the assault upon the dog and threated her son with words and thus committed the abovesaid offences. 4. After hearing both sides, it is seen that the prosecution has no case that the petitioner/accused had actual charge of or control over the juvenile boy as understood in Section 23 of the JJ Act, 2000. Section 23 of the Juvenile Justice (Care & Protection of Children) Act, 2000 which reads as follows: - _“_ _**23. Punishment for cruelty to juvenile or child.-** Whoever, having the actual charge of or control over, a juvenile or the child, assaults, abandons, exposes or willfully neglects the juvenile or cases or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.”_ It is the admitted case of the prosecution that petitioner was formerly in the employment under the 2[nd] respondent and that the juvenile boy is the minor son of the 2[nd] respondent and that otherwise there is no relationship between the petitioner on the one hand and the 2[nd] respondent and the juvenile boy, who is the son, on the other hand and **Crl.MC.No.5170 OF 2016** **4** that the petitioner out of his frustration and in order to wreck vengeance on the 2[nd] respondent had trespassed into her house and then had inter alia kicked on her minor son (juvenile boy), etc. Since the vital ingredients of the accused having actual charge of or control over the juvenile are fully and conspicuously absent, the vital ingredients of the offence as per Section 23 of the JJ Act, 2000 is not made out. 5. The other offence is under Section 294(b) of the IPC. The allegation is that the petitioner has used extremely foul and abusive language when he had trespassed into the house, etc. It is by well settled by a series of rulings of this Court as in _**Latheef v. State of Kerala**_ [2014 (2) KLT 987], _**Sangeetha Lakshmana v. State of Kerala**_ [2008 (2) KLT 745] and _**P.T.Chacko v. Nainan Chacko**_ [1967 KLT 799] that mere use of abusive and humiliating language, however obscene, will not by itself constitute the ingredients of utterance of obscene words as understood in Section 294(b) of the IPC, and that the prosecution should have a definite case in order to bring out the ingredients of Section 294(b) of the IPC, that the words uttered by the accused should have the effect of raising impure sexual feelings and thoughts in the minds of the hearers and has a lascivious elements **Crl.MC.No.5170 OF 2016** **5** etc. inducing lustful thoughts etc. Yet another vital ingredient of the offence as per Section 294(b) of IPC is that such obscene words should have been uttered in a public place. In the instant case the allegations are only to the effect that the petitioner had used abusive and foul language. Further the allegation is to the effect that the petitioner had trespassed to the private residence of the 2[nd] respondent and there he had uttered the abovesaid words. Hence there is no allegation that the utterance of the word has been made in a public place. For these reasons the vital ingredients of the offence as per Section 294(b) of IPC are completely and conspicuously absent. As regards the other offences, it is seen that the ingredients of offence as per Section 506 (1), no interference is called for by invocation of inherent powers under Section 482 of the Cr.P.C as regards the other offences as per Sections 506(1) and 447 of the IPC. The petitioner has made out a contention that the abovesaid allegations are false and motivated, etc., and that there has been long and unexpected delay in lodging of the crime, etc. Yet another contention raised by the petitioner is that no effective action has been taken by the Police in the counter case initiated by the petitioner as against the 2[nd] respondent which has resulted in Annexure A3 Crime No.1700 of 2015 of Poojappura Police Station, Thiruvananthapuram, registered on 11.12.2015 in which the accused is **Crl.MC.No.5170 OF 2016** **6** the 2[nd] respondent and the de facto complainant is the petitioner herein, etc. Now it is apprised to this Court that later, the abovesaid Annexure A3 crime has been transferred to the Vattiyoorkkavu Police Station where it has been re-registered as Crime No.279 of 2016 and the Police has completed the investigation and filed the final report which has led to the pendency of Calendar Case CC No.3005 of 2017 on the file of the Judicial First Class Magistrate – II, Nedumangadu. Later the case was transferred to JFMC (Court for Forest Offences), Nedumangad), wherein it is now pending as CC No.233 of 2019 and the charges are not yet framed. The instant impugned Annexure A1 crime is now pending in CC No.201 of 2016 in which also the charges have not been framed. 6. In the light of the abovesaid aspects, no other interferences are called for. The upshot of the above discussion is that the present impugned criminal proceedings at Annexure A1 would deserve interdiction in a limited manner as regards the offences as per Sections 23 of Juvenile Justice Act and Section 294(b) of the IPC. In that view of the matter, it is ordered that the impugned Annexure A1 final report/charge sheet filed in Crime No.904 of 2015 of Kattakkada Police Station, which has now led to the pendency of Calendar Case CC No.201 of 2016 as against the petitioner/accused to the limited extend it **Crl.MC.No.5170 OF 2016** **7** involves the offence as per Section 294(b) of the IPC and Section 23 of the Juvenile Justice(Care and Protection of Children) Act, 2000 as against the petitioner will stand quashed and set aside. The abovesaid criminal proceedings to the extent it concerns the other offences disclosed therein, viz. Sections 447, 506(1) of the IPC may go on in accordance with law. All contentions available to the petitioner in law are left open to be raised and decided in the trial court in appropriate proceedings and in the manner known to law. If the charges have not been framed, the petitioner will be also be at liberty to seek the benefit of discharge, etc. 7. The petitioner will produce certified copy of this order before the investigating officer concerned as well as before the JFMC, Kattakkada which dealing with CC No.201 of 2016 for necessary information for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. ## **Sd/ALEXANDER THOMAS JUDGE** SCS **Crl.MC.No.5170 OF 2016** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FINAL REPORT AND FIR IN CC NO 201/2016 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAKKADA. ANNEXURE A2 TRUE COPY OF THE CMP NO 6413/2015 BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT. ANNEXURE A3 TRUE COPY OF THE FIR IN CRIME NO 1700/2015 OF POOJAPPURA POLICE STATION.**