Venugopal v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 22ND DAY OF JULY 2019 / 31ST ASHADHA, 1941** ## **Crl.MC.No.3654 of 2019** **AGAINST THE ORDER/JUDGMENT IN CC 360/2015 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, ERNAKULAM** **CRIME NO.315/2007 OF Central Police Station , Ernakulam** ## **PETITIONER/ACCUSED:** **VENUGOPAL AGED 57 YEARS S/O.LATE SEKHARAN PILLAI, 'SREE SADANAM', NEAR SD COLLEGE, KALARCODE, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER** ## **- RESPONDENTS/COMPLAINANT & DE FACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, ERNAKULAM CENTRAL POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SULEKHA, D/O.SUKUMARAN, AGED 38 YEARS, PROJECT MANAGER, SANTHI BHAVAN, RESIDING AT AMBATTUKAVU HOUSE, THAIKKATTUKARA, NEAR KSRTC GARAGE, CHOORNIKKARA VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN-683106.** ## **OTHER PRESENT:** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.3654 of 2019 2 ## **ALEXANDER THOMAS, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.3654 of 2019** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of July, 2019** ## **O R D E R** The case projected in this Crl.M.C. filed under Section 482 of the ## Cr.P.C. is as follows: - a. The above case is filed to quash Annexure AI FIR and Annexure A2 Final Report in crime No.315/2007 of Central Police Station, Ernakulam and its further proceedings now pending as C.C.No.360/2015 on the file of Judicial First Class Magistrate Court-II, Ernakulam. - b. Petitioner is the accused and 2[nd] respondent is the de-facto complainant. She caused to register Annexure A1 by making false allegations. The offences alleged are punishable under Sections 294(b) and 506(i) of the Indian Penal Code. - c. The allegation is that the petitioner abused and threatened the 2[nd] respondent with death by calling her over phone on 25.2.2007 and 27.2.2007 at 10.30 a.m due to his enmity towards her for giving shelter to his wife and children in Santhi Bhavan conducted by the 2[nd] respondent as its Project Manager. She further alleged that one day she found the petitioner following her and then she escaped in an autorickshaw. - d. In fact, much prior to the registration of Anneuxre AI, his marriage with CW2 was declared as null and void vide Annexure A3 order. Since 30.6.2003 they were living separately. CW2 had even deserted their minor daughter with the petitioner and the child is residing with the petitioner. He is having no enmity either towards the 2[nd] respondent or his former wife. 2. In the light of these averments and contentions the petitioner ## has filed this instant Crl.M.C. with the following prayers: “to quash Annexure AI FIR and Annexure A2 Final Report in Crime No.315/2007 of Central Police Station, Ernakulam and its further Crl.MC.No.3654 of 2019 3 proceedings now pending as C.C.No.360/2015 on the file of Judicial First Class Magistrate Court-II, Ernakulam.” 3. Heard Sri. C.A. Chacko, learned counsel appearing for the petitioner/accused and Smt. Priaya Shanavas, learned Public Prosecutor appearing for the respondent State. Though notice has been duly completed on the 2[nd] respondent through substitute service, there is no appearance for that party. 4. Now it is urged by Sri. C.A. Chacko, learned counsel appearing for the petitioner that it is now well settled by series of rulings of this Court as in _**P.T. Chacko v. Nainan Chacko [1967 KLT 799]** ,_ _**Sangeetha Lakshmana v. State of Kerala [2008 (2) KLT 745]** ,_ _**Latheef v. State of Kerala [2014 (2) KLT 987]**_ that mere use of abusive and defamatory words however will not constitute the ingredients of the offence under Section 294(b) of IPC, unless the complainant has a case that the words used therein lascivious and having capacity to raise sexual impure thoughts in the minds of its hearers. It is profitable to refer the decision 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_ Crl.MC.No.3654 of 2019 4 _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, this Revision Petition is allowed. The conviction and sentence against the revision petitioner under S.294(b) I.P.C. in S.T. No.3810/1998 of the Judicial First Class Magistrate Court, Chittur are set aside, on the finding in revision that the revision petitioner is not guilty of the offence punishable under S.294(b) I.P.C. The revision petitioner will stand released from prosecution on acquittal, and the bail bond executed by him will stand discharged.” 5. In the instant case the only allegation which raised in the impugned Annexures AI FIR and A2 Final Report is that the accused has used abusive language. Therefore, it is clear that the vital ingredients of the offence under Section 294(b) of IPC is not made out. Further, there is no allegation set up in the above impugned prosecution materials that the alleged obscene words have been uttered in a public place. 6. For these reasons, it is only to be held that the offence as per Section 294(b) of IPC is not made out in the facts and circumstances of this case. 7. The only other remaining offence alleged against the petitioner Crl.MC.No.3654 of 2019 5 is one under Section 506(i) of IPC which deals with punishment for criminal intimidation, as per which, whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 8. Section 503 of IPC deals with criminal intimidation, which reads as follows: **503. Criminal intimidation** :- whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to be, or to omit to do any act which that person is legally entitled to do so, as the means of avoiding the execution of such threat, commits criminal intimidation. _Explanation:-_ A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. 9. The main allegation raised by the 2[nd] respondent is that the petitioner had telephoned her from a public telephone booth and had threatened her. There are no allegations as to the nature of the threat and as to whether the factual ingredients of criminal intimidation as per Section 503 of IPC are made out. That apart, the only witness arrayed in Annexure A2 Final Report in support of the charge under Section 506(i) of IPC is CW4. 10. From a reading of the statement of CW4 given in Crl.MC.No.3654 of 2019 6 Annexure A2 Final Report, it is seen that CW4 has stated that he does not know as to who has made the telephone in question and he has no materials to show who has made the alleged telephone call from his booth. In the light of these aspects it is only to held that the vital requirements of Section 506 (i) of IPC are also not made out in the instant case. Therefore, it is only to be held that further proceedings in the impugned criminal proceedings would be an abusive of process of the court. Accordingly, it is ordered that the impugned Annexure A2 Final Report/Charge Sheet filed in crime no.315/2007 of Central Police Station, Ernakulam, which has led to the pendency of C.C.No.360/2015 on the file of the Judicial First Class Magistrate Court-II, Ernakulam as against the petitioner/accused and all further steps taken thereon against the petitioner/accused will stand quashed. 11. Petitioner shall forward a certified copy of this order to the investigation officer concerned as well as to the Judicial First Class Magistrate Court-II, Ernakulam. The officer of the Judicial First Class Magistrate Court-II, Ernakulam will forward a certified copy of this order to the investigating officer concerned for necessary information. With these observations and directions, this Crl.M.C. would Crl.MC.No.3654 of 2019 7 stand disposed of. **Sd/-** **ALEXANDER THOMAS** shg **JUDGE** Crl.MC.No.3654 of 2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**CERTIFIED COPY OF FIR IN CRIME**| |---|---| ||**NO.315/2007 OF CENTRAL POLICE STATION,**| ||**ERNAKULAM ALONG WITH STATEMENT GIVEN BY**| ||**2ND RESPONDENT.**| |**ANNEXURE A2**|**CERTIFIED COPY OF FINAL REPORT IN CRIME**| ||**NO.315/2007 OF CENTRAL POLICE STATION,**| ||**ERNAKULAM ALONG WITH THE STATEMENTS OF**| ||**WITNESSES.**| |**ANNEXURE A3**|**TRUE COPY OF ORDER OF FAMILY COURT,**| ||**ERNAKULAM DATED 17.5.2004 IN**| ||**OP.NO.937/2003.**| |**ANNEXURE A4**|**TRUE COPY OF COUNTER FILED BY**| ||**PETITIONER'S FORMER WIFE IN**| ||**OP.NO.937/2003.**|