Vibin, Varghese and Lissy Varghese v. The State of Kerala and Reba

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 28TH DAY OF SEPTEMBER 2020 / 6TH ASWINA, 1942** ## **Crl.MC.No.7918 OF 2018(H)** **TO QUASH ANNEXURES A1 & A2 FIRST INFORMATION REPORT AND FINAL REPORT IN CRIME NO.446/2017 OF WEST POLICE STATION, THRISSUR CITY AND ALL FURTHER PROCEEDINGS IN CC NO.1328/2017 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT -II,THRISSUR** ## **PETITIONERS/ACCUSED:** **1 VIBIN AGED 28 YEARS S/O VARGHESE VAZHAPPILLY HOUSE, LALOOR ARANATTUKARA VILLAGE THRISSUR DISTRICT 2 VARGHESE, AGED 61 YEARS S/O.PATHROSE, VAZHAPPILLY HOUSE, LALOOR, ARANATTUKARA VILLAGE, THRISSUR DISTRICT.** **3 LISSY VARGHESE, AGED 54 YEARS W/O. PATHROSE, VAZHAPPILLY HOUSE, KALOOR, ARANATTUKARA VILLAGE, THRISSUR DISTRICT.** **BY ADVS. SRI.N.M.MADHU SRI.P.P.HARRIS SMT.C.S.RAJANI** ## **RESPONDENTS/STATE/COMPLAINANT:** - **1 THE STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682031** - **2 REBA AGED 25 YEARS** **W/O.LIVINS, VAZHAPPILLY HOUSE, SAHAYA ROAD, LALOOR, ELTHURUTH, ARANATTUKARA, THRISSUR WEST, THRISSUR DISTRICT 680 618** **R2 BY ADV. SRI.VINAY RAMDAS R2 BY ADV. SMT.K.B.ANAMIKA** **SRI.RAMESH CHAND, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON** **28.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.7918 of 2018 2 # **ALEXANDER THOMAS, J. =========================== Crl.M.C.No.7918 of 2018** **===========================** Dated this the 28[th] day of September, 2020 ## **ORDER** The prayer in the aforecaptioned Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C is as follows : _“.............to quash Annexure A1 & A2 first information report and final report in Crime No.446/2017 of West Police Station, Thrissur City and all further proceedings in C.C.No.1328/2017 on the files of the Judicial First Class Magistrate Court-II, Thrissur by allowing this Criminal Miscellaneous Case.”_ 2. Heard Sri.N.M.Madhu, learned counsel appearing for the petitioners, Sri.Vinay Ramdas, learned counsel appearing for the 2[nd] respondent and Sri.Ramesh Chand, learned Public Prosecutor appearing for the 1[st] respondent-State. 3. The petitioners herein are accused Nos.1 to 3 among the three accused in the impugned Annexure-A1 First Information Report in Crime No.446/2017 of Thrissur West Police Station, which has been registered on 23.03.2017 at 4.50 p.m., on the basis of the First Information Statement conveyed by the 2[nd] respondent on the same day, in respect of the alleged incident which happened on 22.03.2017, Crl.M.C.No.7918 of 2018 3 etc., for offences punishable under Secs.323, 354, 294(b) read with Sec.34 of the Indian Penal Code. The police after investigation has filed the impugned Annexure-A2 final report/charge sheet in Annexure-A1 Crime No.446/2017 of Thrissur West Police Station, which has now led to the pendency of calendar case C.C.No.1328/2017 on the file of the Judicial First Class Magistrate’s Court-II, Thrissur. 4. The 1[st] petitioner herein (A1) is the younger son of the 2[nd] & 3[rd] petitioners herein (A2 & A3). The 2[nd] respondent-lady de facto complainant is the wife of the elder son of petitioner Nos.2 & 3. The petitioners would urge that the abovesaid allegations have been falsely foisted against them by the 2[nd] respondent with the intention to compel the 2[nd] petitioner for not carrying out his demand that the 2[nd] respondent and her husband (elder son of 2[nd] & 3[rd] petitioners) to shift their residence from the house of 2[nd] & 3[rd] petitioners. Further that, Annexures-A3 & A4 would show that the 2[nd] petitioner has already set the law in motion for evicting the 2[nd] respondent and her husband from the house. Further that there is no iota of truth in the allegations created by the petitioners and that the impugned criminal proceedings has been initiated only to cause unlawful harassment to the petitioners and to ensure that the 2[nd] & 3[rd] petitioners will permit the 2[nd] respondent’s husband and her to Crl.M.C.No.7918 of 2018 4 continue to reside in the residence of the 2[nd] & 3[rd] petitioners, etc. 5. A copy of the First Information Statement given by the 2[nd] respondent on 23.03.2017, which led to the registration of Annexure-A1 crime, has been available for the perusal of this Court by the learned Public Prosecutor. A reading of the said FIS would make it clear that the 2[nd] respondent’s husband is the elder son of the 2[nd] & 3[rd] petitioners. That the 2[nd] respondent and her husband are residing in the residence of 2[nd] & 3[rd] petitioners, wherein the 1[st] petitioner herein (A1, who is the younger son of the 2[nd] & 3[rd] petitioners) is also residing there. Further that, on 22.03.2017 at about 9.15 p.m., when the 2[nd] respondent was standing in kitchen, the 1[st] petitioner herein had come near her and had hit on her left breast with his right shoulder. To this, the 2[nd] respondent had questioned the 1[st] petitioner (A1) as what he is doing, to which the 1[st] petitioner replied as to why she has not seen the 1[st] petitioner coming to the kitchen. That this led to heated exchange of words between the petitioner and the 2[nd] respondent and that the 1[st] petitioner had used abusive and humiliating words. Further that, the 1[st] petitioner has done such humiliating acts to the 2[nd] respondent even on prior occasions. That immediately on seeing the altercations between the 1[st] petitioner and the 2[nd] respondent, the 2[nd] & 3[rd] petitioners (A2 & A3, who are the Crl.M.C.No.7918 of 2018 5 parents of the husband of the 2[nd] respondent) had also come there and they had also uttered abusive and humiliating words to her and that when the quarrel intensified, 2[nd] & 3[rd] petitioners have forced her to go out of her house and she cried and she intimated to the police, etc. 6. After consideration of the materials on record, this Court is of the considered view that the major allegations raised against the 2[nd] & 3[rd] petitioners (A2 & A3), who are the parents of the husband of the 2[nd] respondent is to the effect that on seeing the altercation and heated arguments between the 1[st] petitioner and the 2[nd] respondent, the 2[nd] & 3[rd] petitioners had also come there and had also started uttering abusive and humiliating words to the 2[nd] respondent and that when the quarrel between the 1[st] petitioner and the 2[nd] respondent intensified, the 2[nd] & 3[rd] petitioners had made the 2[nd] respondent to go out of the house, etc. So the major allegations raised as against the 2[nd] & 3[rd] petitioners are to the effect that they had uttered abusive and humiliating words to the 2[nd] respondent and when the quarrel had intensified, they had pushed the 2[nd] respondent out of the house belonging to the 2[nd] & 3[rd] petitioners, etc. The 2[nd] & 3[rd] petitioners have got a specific case that due to difference of opinion, they had told the 2[nd] respondent and her husband (who is the elder son of the 2[nd] & 3[rd] petitioners) to shift out of the residence belonging to the 2[nd] & 3[rd] Crl.M.C.No.7918 of 2018 6 petitioners due to frequent quarrel and that later, they were also constrained to initiate proceedings in that regard, as against the 2[nd] respondent and her husband before the Maintenance Tribunal as well as the Appellate Tribunal constituted under the provisions of the Maintenance & Welfare of Parents and Senior Citizens Act, 2007. One of the specific contentions raised by the 2[nd] & 3[rd] petitioners that it is only to preclude them from taking steps to stick to the demand that the 2[nd] respondent and her husband should shift their residence that the instant allegations have made, etc. 7. From an overall conspectus of the facts and circumstances of the case, this Court is inclined to take the view that the major allegations against the 2[nd] & 3[rd] petitioners are in relation to utterance of allegedly humiliating and abusive words, for which they have been alleged to have committed Sec.294(b) of the IPC. It is by now 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], etc. that abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined in Sec.292 of the IPC and that even if the alleged words used by the accused are abusive and humiliating, in order to make such words Crl.M.C.No.7918 of 2018 7 obscene punishable under Sec.294(b) of the IPC, it must necessarily satisfy the definition of obscenity as per Sec.292 of the IPC and that to make punishable the alleged words, the same must be in a sense lascivious, or it must appeal to the prurient interest or will deprave and corrupt the hearers, etc. It is now well established that to make the alleged words obscene, the same must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons and defining morals by sex appeal or lustful desires. It will be profitable to refer to paragraph No.5 of the judgment of this Court in _**Latheef v. State of Kerala**_ [2014 (2) KLT 987], 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 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_ Crl.M.C.No.7918 of 2018 8 _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.”_ 8. Since the main allegations as against the 2[nd] & 3[rd] petitioners are to the effect that they have used the humiliating and abusive words, etc., it cannot be said that the vital ingredients of the offence as per Sec.294(b) of the IPC are made out in the instant case. The other allegation arising against the 2[nd] & 3[rd] petitioners is that during the course of the heated exchange of words between the rival parties, the 2[nd] & 3[rd] petitioners had pushed the 2[nd] respondent out of their home. It has to be borne in mind that the 2[nd] & 3[rd] petitioners have a definite case that disputes were frequently occurring between the 2[nd] respondent and her husband vis-a-vis the 2[nd] & 3[rd] petitioners and that the 2[nd] & 3[rd] petitioners have demanded that the 2[nd] respondent and her husband should shift their residence. Indisputably the residence in question belongs to the 2[nd] & 3[rd] Crl.M.C.No.7918 of 2018 9 petitioners. 9. Taking an overall conspectus of the facts and circumstances of this case and taking into account these factual aspects and also the fact that the 2[nd] & 3[rd] petitioners are elderly persons, this Court is of the considered view that the impugned criminal proceedings as against the 2[nd] & 3[rd] petitioners could be quashed taking resort to the inherent powers conferred under Sec.482 of the Cr.P.C. Accordingly, it is ordered that the impugned criminal proceedings arising out of Annexure-A2 final report in Crime No.446/2017 of Thrissur West Police Station, which had led to the pendency of calendar case C.C.No.1328/2017 of Thrissur Town West Police Station to the limited extent it is directed as against the 2[nd] and 3[rd] petitioners herein (A2 & A3) and all further proceedings emanating therefrom as against the 2[nd] and 3[rd] petitioners herein (A2 & A3) will stand quashed and set aside. 10. The proceedings as against the 1[st] petitioner (A1) may proceed strictly in accordance with law, untrammeled and uninfluenced by the observations and findings in this order. However, it is ordered that the Judicial First Class Magistrate's Court-II, Thrissur, who is now dealing with C.C.No.1328/2017 may issue notices to both the 1[st] petitioner (A1) as well as to the 2[nd] respondent (de facto complainant) and may ascertain whether both of them are Crl.M.C.No.7918 of 2018 10 willing to explore the possibilities of mediatory settlement as they are closely related. If both the 1[st] petitioner herein and the 2[nd] respondent herein are willing to explore the possibility of mediatory settlement, then the learned Magistrate may refer both of them to the nearest Mediation Centre or the District Mediation Centre, Thrissur. Thereupon, the Mediator will ensure that the mediation process is completed without much delay, preferably within a period of four months. If the mediation process is successful, the 1[st] petitioner will be at liberty to initiate separate proceedings for quashment of the impugned criminal proceedings on the ground of settlement between the parties. If the mediation process is not successful, the 1[st] petitioner will be at liberty to work out his remedies in the manner known to law. After conclusion of such mediation settlement proceedings, the Mediation Centre will furnish the report of the Mediator along with the copy of the mediation settlement agreement, if arrived at between the parties to the learned Magistrate as well as to the parties concerned. The learned Magistrate may defer the further proceedings in the above calendar case, until the conclusion of the mediation proceedings. With these observations and directions, the above Crl.M.C will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd Crl.M.C.No.7918 of 2018 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 446/2017 OF WEST POLICE STATION, THRISSUR CITY** **ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.446/2017 OF WEST POLICE STATION, THRISSUR CITY** **ANNEXURE A3 TRUE COPY OF THE ORDER IN PROCEEDING NO. C2-4476/2017 DATED 18-08-2017 PASSED BY THE MAINTENANCE TRIBUNAL & REVENUE DIVISIONAL OFFICER, THRISSUR** **ANNEXURE A4 TRUE COPY OF THE ORDER IN PROCEEDING NO. C4-44317/2017 DATED 25-05-2018 PASSED BY THE APPELLATE TRIBUNAL & DISTRICT COLLECTOR, THRISSUR**