Sulatha v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942** **Crl.MC.No.2659 OF 2017** **AGAINST SC 425/2016 OF SPECIAL COURT UNDER POCSO ACT, ALAPPUZHA** **CRIME NO.1006/2014 OF AMBALAPPUZHA POLICE STATION, ALAPPUZHA** ## **PETITIONER/ACCUSED:** **SULATHA AGED 50 YEARS, W/O.VISWAN, NADUVILAY MADATHIL PARAMBU, KOMANA, AMBALAPPUZHA, ALAPPUZHA-688561. (ENTERED AS SULAKHA IN FINAL REPORT]** **BY ADVS. SRI.DIPU.R SRI.K.S.BAIJU SMT.P.A.PRIYA SRI.SANAL P.RAJ SMT.T.P.SHENIJA SMT.K.P.SUSMITHA** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** - **2 THE DEPUTY SUPERINTENDENT OF POLICE OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, ALAPPUZHA-688001.** - **3 THE STATION HOUSE OFFICER AMBALAPPUZHA POLICE STATION, AMBALAPPUZHA, ALAPPUZHA, PIN-688561.** - **4 PARVATHY ANIL MINOR AGED 13 YEARS, D/O.ANILKUMAR, (REPRESENTED BY HER MOTHER ROSMI, THE 5TH RESPONDENT HEREIN), RESIDING AT VADAKKEVEEDU, AMBALAPPUZHA SOUTH PANCHAYAT, WARD NO.14, KOMANA, AMBALAPPUZHA, ALAPPUZHA, PIN-688561.** - **5 ROSMI AGED 35 YEARS, W/O.ANILKUMAR, RESIDING AT VADAKKEVEEDU, AMBALAPPUZHA SOUTH PANCHAYAT, WARD NO.14, KOMANA, AMBALAPPUZHA, ALAPPUZHA, PIN-688561.** - **R1, R4 BY ADV. SRI.T.MADHU R1 BY ADV. SRI.B.K.RAJAGOPAL** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No.2659 of 2017 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.2659 of 2017 ---------------------------------------------Dated this the 03rd day of November, 2020 ## **O R D E R** The prayers in the aforecaptioned Criminal Miscellaneous Case filed on 04.04.2017, under Section 482 of the Code of Criminal Procedure (Cr.P.C.), are as follows:- - _"i) Quash Annexure-1 final report in S.C. No.425/2016 on the file of District Court (1[st] Additional District Court) Alappuzha, and acquit the petitioner._ - _ii) This Hon'ble court may be further pleased to pass any other just and equitable order under the given facts and circumstances of the case as deemed fit in favour of the petitioner.”_ 2. Heard Sri.R.Dipu, learned counsel appearing for the petitioner (sole accused), Sri.Saigi Jacob Palatty, learned Public Prosecutor, appearing for official respondents 1 to 3 and Sri.T.Madhu, learned Advocate, appearing for contesting respondents 4 & 5 (minor victim and victim's mother). 3. The petitioner herein has been arrayed as the sole accused in crime No.1006/14 of Ambalapuzha Police Station, Crl.M.C. No.2659 of 2017 3 Alappuzha District, for offences punishable under Sections 294(b), 341 & 323 of the Indian Penal Code (I.P.C.) and Section 23 of the Juvenile Justice (Care And Protection Of Children) Act, 2000 (J J Act), on the basis of Annexure-2 First Information Statement (FIS), given by the 4[th] respondent minor victim on 02.08.2014, in respect of the alleged incident which happened on 01.08.2014. The Police, after investigation, has filed the impugned Annexure-1 Final Report/Charge Sheet in the said crime No.1006/14 of Ambalapuzha Police Station, which has now led to the pendency of sessions case SC No.425/2016, on the file of the First Additional Sessions Court, Alappuzha. 4. The contention raised by the petitioner is that even going by the admitted prosecution allegations, none of the alleged offences are disclosed in the instant case. The brief of the prosecution case as made out in Annexure-2 FIS given by the 4[th] respondent is that the 4[th] respondent is the daughter of the 5[th] respondent and that the 4[th] respondent was then a minor aged 12 years and that on 01.08.2014, when she had gone from her house to the public tap at about 8.30 p.m. in the Crl.M.C. No.2659 of 2017 4 night, the petitioner/accused, who is a lady living in their immediate neighbourhood, out of animosity to her family had slapped on her face and had pushed her head against the wall and when she fallen down, the petitioner/accused dragged her and then the 5[th] respondent, who is the mother of the 4[th] respondent had intervened, at which time the petitioner/accused had thrown soil to her face and had used vulgar and abusive languages at both the minor victim and her mother and that the accused has also assaulter the 5[th] respondent, etc. 5. After hearing both sides, this Court is of the considered view that the offences as per Section 294(b) of the I.P.C. and Section 23 of the J J Act may not lie even going by the admitted allegations of the prosecution in the instant case. Section 294(b) of the I.P.C. is as follows:- _“[_ _**294. Obscene acts and songs** .—Whoever, to the annoyance of others,_ _(a) xxxxx_ _(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.]”_ It is by now, well settled by series of rulings of this Court as in Crl.M.C. No.2659 of 2017 5 _**Latheef v. State of Kerala**_ [2014 (2) KLT 987], _**P.T. Chacko v. Nainan Chacko**_ [1967 KLT 799], _**Sangeetha Lakshmana v. State of Kerala**_ [2008 (2) KLT 745], that mere use of abusive and humiliating word or use of foul language will not constitute the offence at 294(b) of utterance of obscene words and to make out a case as per Section 294(b) (utterance of obscene words), the prosecution should have a case that the words uttered out are lascivious or which are capable of arousing impure sexual thoughts or feelings in the minds of its hearers which have the effect of depraving persons, and defiling morals by sex appeal or lustful desires, etc. It is profitable to refer to paragraph No.5 of the decision 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 Section 294(b) IPC, it must satisfy the definition of obscenity. Section 294 IPC does not define obscenity. Being a continuation of the subject dealt with under Section 292 IPC the definition of obscenity under 292(1) IPC can be applied in a prosecution under Section 294 IPC 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_ Crl.M.C. No.2659 of 2017 6 _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 Section 294 (b)IPC in this case, 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.”_ 7. In the instant case, even going by the admitted allegations of the prosecution, the case is that the petitioner/accused had used foul and abusive language to both the 4[th] and 5[th] respondents. Therefore, it goes without saying that the vital ingredients of the offence as per Section 294(b) of the I.P.C. are not made out in the instant case, even going by the admitted case of the prosecution. Further, Section 23 of the J J Act, 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 causes 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.”_ Crl.M.C. No.2659 of 2017 7 8. Section 23 of the J J Act deals with punishment for cruelty to juvenile or child. One of the prime ingredients to be satisfied for the disclosure of an offence in terms of Section 23 of the J J Act is that the prosecution have a definite case that the accused person should have actual charge or control over a juvenile child and then should have assaulted or abandoned or exposed or willfully neglected the juvenile, etc. as envisaged in Section 23 of the J J Act. 9. In the instant case, the specific case of the prosecution is that the petitioner/accused is only living in the immediate neighbourhood of the 4[th] respondent minor victim girl and her family members and further that the petitioner was having hostile, animus against the 4[th] respondent's family members. The prosecution has no case that at the time when the offences allegedly committed, the petitioner/accused was having the actual charge or control over the 4[th] respondent juvenile/minor girl child. Hence, one of the prime ingredient to make out the offence as per Section 23 of the J J Act is conspicuously absent in the facts and circumstances of this case. However, going through the admitted prosecution Crl.M.C. No.2659 of 2017 8 allegation, it cannot be said that the ingredients for the other offences concerned, viz., Section 342 of the I.P.C. (Punishment for wrongful confinement) and Section 323 of the I.P.C. (Punishment for voluntarily causing hurt) are made out. 10. The up-short of the above discussion is that the impugned criminal proceedings, to the limited extent, alleges offences as per Section 294(b) of the I.P.C. and Section 23 of the J J Act, is liable for quashment under Section 482 of the Cr.P.C. 11. In that view of the matter, it is ordered that the impugned Annexure-1 Final Report/Charge Sheet, filed in crime No.1006/14 of Ambalapuzha Police Station, which has now led to the pendency of SC No.425/2016 on the file of the First Additional Sessions Court, Alappuzha, as against the petitioner/accused, to the limited extent it discloses offence as per Sections 294(b) of the I.P.C. and Section 23 of the J. J. Act will stand quashed and set aside. 12. However, it is made clear that the other offences disclosed therein as per Sections 341 and 323 of the I.P.C. are not, in any manner, interdicted by this order. Since, this Court Crl.M.C. No.2659 of 2017 9 is apprised that the case was committed to the Sessions Court as the offence as per Section 23 of the J J Act is to be tried by the notified court for that purpose, and the notified court is the Sessions Court, concerned. Now, that the impugned criminal proceedings to the extent it alleges offences as per Section 294(b) of the I.P.C. and Section 23 of the J J Act has been quashed by this Court, it is ordered that the Sessions Court, which is now dealing with S.C. No.425/2016, will be at liberty to pass appropriate orders so as to transfer the case to the competent jurisdictional Magistrate court, concerned, as none of the offences now included are exclusively triable by a court of Sessions. Such orders may be passed by the Sessions court, concerned after hearing the prosecution, the petitioner/accused as well as the _de facto_ complainant, so that the parties concerned are put to notice as to the order of transfer to the jurisdictional Magistrate court, concerned. 13. It is also made clear that the case, to the extent, it discloses offences as per Sections 341 and 323 of the I.P.C. as against the petitioner/accused, may go on before the competent court, in accordance with law, untrammeled and Crl.M.C. No.2659 of 2017 10 uninfluenced in any manner by the observations and findings made by this Court, hereinabove, in this order. 14. The Registry will forward a copy of this order to the First Additional Sessions Court, Alappuzha, who is now dealing with SC No.425/2016, for necessary information and further action. With the said liberty, the above criminal miscellaneous case will stand dismissed. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//16112020 Crl.M.C. No.2659 of 2017 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **ANNEXURE 1 CERTIFIED COPY OF THE FINAL REPORT IN S.C.NO.425/16 ON THE FILE OF DISTRICT COURT, ALAPPUZHA.** - **ANNEXURE 2 CERTIFIED COPY OF THE FIR NO.1006, DATED 02/08/2014 OF AMBALAPPUZHA POLICE STATION.** - **ANNEXURE 3 TRUE COPY OF THE PETITIONER'S APPLICATION DATED 31/01/2015 UNDER RIGHT TO INFORMATION ACT.** **ANNEXURE 4 TUE COPY OF THE APPEAL DATED 06/07/2015 UNDER RTI ACT FILED BY THE PETITIONER.** - **ANNEXURE 5 TRUE COPY OF THE PETITIONER'S COMPLAINT DATED 01/08/2014 FORWARDED BY THE 3RD RESPONDENT.** - **ANNEXURE 6 TRUE COPY OF THE COVERING LETTER OF THE 3RD RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL**