Swaminathan and Bhagyalakshmi v. Veni @ Renuka and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941 CRL.MC.NO.3056 OF 2019** **CC 252/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS, CHITTUR CRIME NO.592/2017 OF PUDUNAGARAM POLICE STATION, PALAKKAD** ## **PETITIONERS/ACCUSED NOS. 1 AND 2:** |**1**|**SWAMINATHAN, AGED 68 YEARS,**| |---|---| ||**S/O. NARAYANANKUTTY NAIR, KARTHIKA VEEDU,**| ||**SANTHIPURAM, KODUVAYUR, PALAKKAD.**| |**2**|**BHAGYALAKSHMI, AGED 56 YEARS,**| ||**W/O. SWAMINATHAN, KARTHIKA VEEDU,**| ||**SANTHIPURAM, KODUVAYUR, PALAKKAD.**| ||**BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)**| ## **RESPONDENTS/DEFACTO COMPLAINANT & STATE:** |**1**|**VENI @ RENUKA,**| |---|---| ||**AGED 40 YEARS, D/O. MARUTHACHALAM PILLA,**| ||**SABARI NIVAS, CHANTHIPURAM, KODUVAYUR,**| ||**CHITTUR, PALAKKAD-678 501.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682 031.**| ||**SRI.SAJAN VARGHEESE K, ADVOCATE FOR R1 ADVS.**| ||**SRI.AMJAD ALI, SRI.JOPHY POTHEN KANDANKARY,**| ||**SRI.LIJU. M.P**| ||**SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R2,**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. -------------------------------Crl.M.C. No. 3056 of 2019 -------------------------------Dated this the 21[st] day of June, 2019 ## O R D E R The prayers in the above Criminal Miscellaneous Case filed under Sec.482 of the Code of Criminal Procedure reads as follows: _“This Hon'ble Court may be pleased to allow this criminal miscellaneous case, quash Annexure B, Final Report in Crime No.592/2017 of Pudunagaram Police Station, Palakkad which is now pending as C.C.No.252/2018 of the Court of the Judicial First Class Magistrate, Chittur against the petitioners/accused Nos.1 and 2, so as to secure the ends of justice.”_ 2. Heard Sri.Johnson Varikkappallil, learned counsel appearing for the petitioners (A-1 & A-2), Sri. Amjad Ali, learned Prosecutor appearing for R-2 (State) and Sri.K.Sajan Varghese, learned counsel appearing for R-1 (defacto complainant). 3. The petitioners herein have been arrayed as accused Nos.1 and 2 in Crime No.592/2017 of Pudunagaram Police Station, which has been registered for offences punishable under Secs.341, 323, 354, 294(b), 506(i) r/w 34 of the IPC. The 2[nd] Crl.M.C. No. 3056 / 2019 ..3.. respondent defacto complainant had filed a private criminal complaint wherein the learned Magistrate while exercising the powers under Sec.156(3) of the Cr.P.C., had directed the Police to conduct investigation in the matter and thereupon the instant crime has been registered on the basis of Anx.A. 4. Police after investigation has now filed impugned Anx.B final report/charge sheet in the abovesaid Crime No.592/2017 of Pudunagaram Police Station, which has now led to the institution of C.C.No.252/2018 on the file of JFCM, Chittur, for offences punishable under Secs.294(b), 506(i) r/w Sec.34 of the IPC. Though the crime was registered for offences under Secs.341, 323, 354, 294(b), 506(i) r/w 34 of the IPC. The Police after investigation has now deleted all the other offences and now included only offences under Secs.294(b) and 506(i) r/w 34 of the IPC. 5. The gist of the prosecution case in the impugned criminal proceedings at Anx.B is that, on 23.1.2017 at about 1 pm, the accused persons had attacked the 1[st] respondent lady defacto Crl.M.C. No. 3056 / 2019 ..4.. complainant and threatened to do away with them, uttered obscene words against them when the 1[st] respondent lady defacto complainant had tried to question to the accused persons for making false complaint against her in the Panchayat. 6. According to the petitioners, the impugned Anx.B criminal proceedings are plainly false, and that no incidents whatsoever have taken place on 23.1.2017, and even in respect of the impugned Anx.B proceedings, the 2[nd] respondent has given Anx.A private criminal complaint only as late as on 21.6.2017. Further that on 25.2.2017, the 2[nd] respondent defacto complainant herein, and her relatives have attacked the petitioners herein, when the later had tried to remove the obstruction caused in the public pathway leading to the house of the petitioners with the assistance of Panchayat authorities. In that regard, petitioners have immediately submitted Anx.C complaint dated 25.2.2017 before the Police authorities upon which Crime No.195/2017 of the same Police Station was registered on the same day, and the Police after investigation has now filed Anx.D final report/charge sheet Crl.M.C. No. 3056 / 2019 ..5.. in the said Crime No.195/2017 of Puthunagaram Police Station, which has now led to the institution of C.C.No.312/2017 on the file of JFCM, Chittur, in which the 1[st] respondent lady defacto complainant and her parents have been arrayed as the three accused therein. 7. Both sides have raised allegations and counter allegations in support of their respective versions in the respective crimes. However the cardinal argument raised by Sri.Johnson Varikkappallil, learned Advocate appearing for the petitioners (accused persons) is that, the Police after due investigation has found that the allegations raised by the 2[nd] respondent in respect of all offences other than those offences for Secs.294(b) & 506(i) of the IPC are not tenable, and has deleted such offences, and that the only offences now included in the impugned Anx.B final report/charge sheet are those under Secs. 294(b) & 506(i) of the IPC. It is pointed out that the only allegation raised in Anx.A complaint and in Anx.B final report in support of the claim of prosecution, for including offence under Sec.294(b) of the IPC is Crl.M.C. No. 3056 / 2019 ..6.. that, the petitioners had used extremely foul and abusive languages against the 1[st] respondent lady defacto complainant. It is well settled that mere usage of foul and abusive languages will not constitute the ingredients of obscenity envisaged in Sec.294(b) of the IPC unless the specific case is that, the accused have used lascivious words which are capable of arousing impure sexual thoughts in the minds of its hearers. Further it is submitted that, since that is the position, the only other offence remaining is one under Sec.506(i) r/w 34 of the IPC which is a non cognizable offence, and without getting the prior permission of the learned Magistrate under Sec.155(2) of the Cr.P.C., the same could not have been set in motion at all on the basis of a crime registered by the Police. 8. After having heard both sides, it is seen that the only allegation raised against the petitioners for justifying the inclusion of offence under Sec.294(b) of the IPC is that, the petitioners have used foul and abusive languages. The 2[nd] respondent or the Investigating Officer has no case whatsoever, that the petitioners Crl.M.C. No. 3056 / 2019 ..7.. have used luscivious words which are capable of arousing sexually impure thoughts in the minds of its hearers, as envisaged in Sec.292 IPC r/w Sec.294 IPC. 9. The legal position in that regard is now well settled, and it has been held by a catena of rulings as the one in _**Latheef**_ _**v. State of Kerala [2014 (2) KLT 987]**_ that abusive or humiliating or defamatory words will not as such amount to obscenity as defined in law and that even if the words used by accused are in fact highly abusive, humiliating and defamatory in nature, inorder to make such words obscene, punishable under Sec.294(b) of the IPC, it must satisfy the definition of obscenity as contained in Sec.292 of the IPC. It has been held that to make obscene, the alleged words must involve some lascivious elements, arousing impure sexual thoughts or feelings or words, and must have the effect of depraving persons and defiling morals by sex appeal or lustful desires. The position in this regard has also been dealt with in various other decisions of this Court as in _**Latheef's**_ case supra. It is profitable to refer to paragraph No.5 of the Crl.M.C. No. 3056 / 2019 ..8.. ## judgment 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 S.294(b) I.P.C., it must satisfy the definition of obscenity. S.294 I.P.C. does not define obscenity. Being a continuation of the subject dealt with under S.292 I.P.C. the definition of obscenity under 292(1) I.P.C. can be applied in a prosecution under S.294 I.P.C. 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 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 S.294 (b) I.P.C. 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.”_ In the result there cannot be any dispute that the words alleged to have been used by the petitioners/accused persons in relation to impugned Anx.B criminal proceedings cannot be said Crl.M.C. No. 3056 / 2019 ..9.. to be obscene as understood in Sec.292 r/w Sec.294(b) of the IPC, etc. 10. As far as the other argument of the petitioners for quashment of the sole remaining offence as per Sec.506(i) of the IPC, the following submissions are made by the petitioners. The said offence as per Sec.506(i) is a non cognizable offence, and by the mandate of Sec.155(2) Cr.P.C., _no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial._ As per Sec.155(1) Cr.P.C., _when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate._ This Court has held in decisions as in _**Anto Joseph v. State of Kerala [2016 (3) KLT 309]**_ that cases solely involving non-cognizable offences Crl.M.C. No. 3056 / 2019 ..10.. could be investigated by the Police only on getting permission from the Magistrate either to the informant or directly to the Police. In the instant case, after the institution of Anx.A private criminal complaint, since the FIR contains non-cognizable offences as well, the Magistrate has exercised the powers under Sec.156(3) Cr.P.C., and directed the Police to investigate. 11. Now it has found that, all the offences are not maintainable except the one under Sec.506(i) of the IPC. Instead of taking hyper-technical approach, it is to be seen that the Magistrate has already exercised his discretion to direct the Police to investigate the case, which originally involved cognizable offence. So the direction issued by the learned Magistrate at that stage as per Sec.156(3) of Cr.P.C., is perfectly legal and within jurisdiction. Merely because it has been subsequently found by the Police after investigation that the cognizable offences are to be deleted, will not by itself make the initial direction under Sec.156(3) Cr.P.C., and the consequential steps in the Crl.M.C. No. 3056 / 2019 ..11.. investigation, which led to the institution of the Calender Case before the learned Magistrate illegal and without jurisdiction. Of course, if there is an allegation of grave abuse of the process of court, then interference could be appropriately made under Sec.482 Cr.P.C. by this Court. But since ostensibly there are allegations and counter allegations, this Court is not inclined to quash the entire proceedings, in the facts and circumstances of this case. So this Court is of the view that, the ends of justice would met by directing the trial court may proceed further in the matter in Anx.B C.C.No.252/2018 in respect of allegations relating to the offence as per Secs.506(i) r/w 34 of the IPC alone, and for no other offences. 12. Accordingly it is ordered that the action on the part of the Investigating Officer in including the offence as per Sec.294(b) of the IPC in Anx.B Final Report/Charge Sheet and the consequent decision taken by the learned Magistrate to take cognizance for the Crl.M.C. No. 3056 / 2019 ..12.. offence as per Sec.294(b) of the IPC will stand rescinded and quashed. The Judicial First Class Magistrate Court, Chittur, may proceed with the calender case C.C.No.252/2018 in respect of the offence as per Sec.506(i) of the IPC and Sec.34 of the IPC and not for any other offences. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 3056 / 2019 ..13.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE A TRUE COPY OF THE CRL.M.P. NO. 4104/2017 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHITTUR.** **ANNEXURE B TRUE COPY OF THE FINAL REPORT IN C.C. NO. 252/2018 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, CHITTUR.** **ANNEXURE C TRUE COPY OF THE COMPLAINT DATED 25.02.2017 SUBMITTED BY THE PETITIONER. ANNEXURE D TRUE COPY OF THE FINAL REPORT IN C.C. NO. 312/2017 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, CHITTUR.**