Vijay Govardhanadas Shah and Sankar S. v. State of Kerala and Jasmine Deepak Pujara

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 CRL.MC NO. 6089 OF 2022 ``` ``` CRIME NO.608/2021 OF MATTANCHERRY POLICE STATION, ERNAKULAM PROCEEDINGS IN C.C.NO.1690/2021 OF JUDICIAL FIRST CLASS MAGISTRATE ``` ## **`COURT, MATTANCHERRY`** ## **`PETITIONERS/ACCUSED 1 AND 2:`** ``` 1VIJAY GOVARDHANADAS SHAH, AGED 55 YEARS, S/O GP SHAH, CLERK, NAVNEETH KRISHNA TEMPLE, PALACE ROAD, MATTANCHERRY – 682 001. 2SANKAR.S, AGED 48 YEARS, S/O SUDALAL MUTHU, STAFF, NAVNEETH KRISHNA TEMPLE, PALACE ROAD, MATTANCHERRY – 682 001. BY ADVS. JAYASREE K.P. JOHN JOSEPH ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, MATTANCHERRY POLICE STATION, KOCHI – 682 001. (THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM) 2JASMINE DEEPAK PUJARA, W/O DEEPAK PUJARA, CC 8/1906, PALACE ROAD, MATTANCHERRY, KOCHI – 682 001. ``` ``` SRI VIPIN NARAYAN (SR PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC NO. 6089 OF 2022 2 ## ORDER Petitioners are accused Nos.1 and 2 in C.C.No.1690 of 2021 on the file of the Judicial First Class Magistrate court, Mattancherry, arising out of Crime No.608 of 2021 of Mattancherry Police Station. The petitioners face allegations of having committed offence under Section 294(b) read with Section 34 of the Indian Penal Code. 2. The learned counsel appearing for the petitioners would submit that the petitioners are employees of Sri Navneeth Krishna Swami Temple, Palace Road, Mattancherry. It is submitted that the gist of the allegation is that the petitioners had mouthed obscenities in a public place as a consequence of the heated arguments they had with the de-facto complainant in the case. 3. The learned counsel appearing for the petitioners would submit that merely because defamatory words are used, the same would not fall within the definition of ‘obscenity’ for the purpose of Section 294(b) of the Indian Penal Code. It is submitted that a false allegation has been raised on account of civil disputes between the apex body which runs the Sri Navneeth Krishna Swami Temple against the husband of the de-facto complainant demanding vacant CRL.MC NO. 6089 OF 2022 3 possession of buildings and structures let out to him. It is submitted that the allegations were raised merely on account of personal animosity on account of civil disputes pending between the apex body, which manages the affairs of the Sri Navneeth Krishna Swami Temple and the husband of the de-facto complainant. It is submitted that the F.I.R in the case was registered after a delay of more than one month and the delay has not been properly explained. It is submitted that in such circumstances, the proceedings against the petitioners is liable to be quashed in exercise of the jurisdiction vested in this Court under Section 482 of the Cr.P.C. Notice of this petition has been served on the 2[nd] respondent / de-facto complainant. However, there is no appearance for the 2[nd] respondent / de-facto complainant. 4. Heard the learned Public Prosecutor also. 5. Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am of the view that the petitioners are entitled to succeed. A perusal of Annexure – A2 final report will indicate that the allegations against the petitioners are the following:- "ഒന്നും രണ്ടും പ്രതികൾക ആവലാതിക്കാരിയ ോടും കുടുംബത്തോടും വസ്തു സംബന്ധമായി സിവിൽ കേസ്ക കോടതിയിൽ കൊടുത് ിലുള്ള മുൻ വിരരോധം നിമിത്തം CRL.MC NO. 6089 OF 2022 4 ഒന്നാം സാക്ഷിയെ അപമാനിക്കണമെന്നുള്ള ഉദ്ദേശ്യത്തോടും കരുതലലോടും കൂടി 19.04.21 തിയതി പകൽ 11.30 മണിക മട്ടാഞ്ചേരി വില്ലേജ് ടി കരയിൽ കിഴകക പടിഞ്ഞാറായി കിടക്കുന്ന പാലസ് ററോഡിൽ H&HM ജംഗ്ഷനിൽ നിന്നും 20 മീറ്റർ പടിഞ്ഞാറ് മാറി ടി ററോഡിന് തെക്കുവശം കിഴക ദർശനത്തിലുള്ള നവനീത് കൃഷ്ണ ക്ഷേത്രത്തിലേക്കുള്ള ആർച രൂപത്തിലുള്ള ഗേറ്റിനകതത ഇടനാഴിയിൽ 6.1/2 മീറ്റർ തെക മാറി പടിഞ്ഞാറുവശം തെക്കുവടക്കായി കിടക്കുന്ന മതിലിന്റെ പില്ലറിൽ നിന്നും 9.25 മീറ്റർ തെക്കുപടിഞ്ഞാറ് മാറിയും ആയതിന് പടിഞ്ഞാറുവശം കാണുന്ന കിണറിന്റെ കിഴക ഭാഗത ത നിന്നും 1 മീറ്റർ നേരെ കിഴകക മാറിയും കാണുന്ന ടൈൽ പാകിയ വീടിന് പുറകുവശത്തുള്ള ക്ഷേത്രമതിലിനടുത്തേയക്ക ഒന്നാം സാക്ഷിയെ ഒന്നും രണ്ടും പ്രതികൾ വിളിച്ചുവരുത്തി മതിലിനനോട് ചേർന്നുള്ള കുടിവെള്ള പൈപ്പിന്റെ വാൽവ് ഒന്നാം സാക്ഷിയും മറ്റും അടച്ചുവെന ആരരോപിച്ച പ്രതികൾ ചേർനന ഗുജറാത്തി ഭാഷയിൽ മാതാ ചോദ് (വേശ്യ) എനന വിളിചച പപൊതു സ്ഥലതത പരസ്യമായി അസഭ്യം പറഞ്ഞും പ്രതികൾ കൃത്യത്തിന് പരസ്പരം ഉത്സാഹികളും സഹായികളുമായി വർത്തിച്ച മേൽ വകുപ പ്രകാരം കുറ്റം ചെയ് ായി വെളിവായിട്ടുള്ളതാണ് .” In Latheef v. State of Kerala [2014 (2) KLT 987], this Court has considered as to what would constitute obscenity for the purpose of Section 294(b) of the Indian Penal Code. It was held:- “4. Sub Section (1) of Section 292 IPC provides that for the purposes of sub-s. (2), dealing with punishment and sentence for obscenity, “a book, pamphlet, paper, writing, CRL.MC NO. 6089 OF 2022 5 drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious, or appeals to the prurient interest, or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” Thus sub-s. (1) to S. 292 IPC gives a clear idea as to what is meant by obscenity under the law, punishable under Sections 294(2), 293 and 294 IPC. 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) IPC, it must satisfy the definition of obscenity. Section 294 IPC does not define obscenity. Being a continuation of the subject dealt with under S.292 IPC the definition of obscenity under 292(1) IPC can be applied in a prosecution under S.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 CRL.MC NO. 6089 OF 2022 6 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)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.” It is to be noted that in Latheef (supra), this Court followed the judgments in P.T.Chacko v. Nainan Chacko [1967 KLT 799] and CRL.MC NO. 6089 OF 2022 7 ## Sangeetha Lakshmana v. State of Kerala [2008(2) KLT 745] . ## In P.T.Chacko (supra), it was held :- 5. The only point argued was that the 1[st] accused has not committed an offence punishable under S.294(b) IPC by uttering the words above mentioned. The courts below have held that the words uttered were obscene and the utterance caused annoyance to the public. I am not inclined to take this view. In the Queen v. Hicklin 1868-3Q.B.360 at 371 Cockburn C.J. laid down the test of ‘obscenity’ in these words: “ …..the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.” This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881 at 887. In Samuel Roth v. U.S.A (1957) 354 U. S.476, Chief Justice Warren said that the test of ‘obscenity’ is the “substantial tendency to corrupt by arousing lustful desires”. Mr. Justice Harlan observed that in order to be ‘obscene’ the matter must “tend to sexually impure thoughts”. I do not think that the words uttered in this case have such a tendency. It may be that the words are CRL.MC NO. 6089 OF 2022 8 defamatory of the complainant, but I do not think that the words are ‘obscene’ and the utterance would constitute an offence punishable under S.294(b) IPC. ## In Sangeetha Lakshmana (supra), it was held:- “5. In order to satisfy the test of obscenity, the words uttered must be capable of arousing sexually impure thoughts in the minds of its hearers. The word “rascal” does not have the tendency of depraving or corrupting those minds which are open to the prurient of lascivious influences. Secondly, the occurrence itself allegedly took place when the Sub Inspector went to the flat in question in purported exercise of rendering aid to the bank for taking possession of the flat. As a matter of fact, as per Annexure B proceedings of the Debts Recovery Tribunal dated 12-72006 all proceedings pursuant to the possession notice dated 7-7-2006 issued by the bank were stayed till 17-082006. There is no dispute that the order of the Debts Recovery Tribunal was passed in the morning of 12-072006. If so, neither the bank nor the police officer could have proceeded to the flat in question for taking possession of the same. Hence, the Inspector had no business at all at the premises in question, much less, do any act in discharge of his duties. If so, it cannot be said that the Sub inspector CRL.MC NO. 6089 OF 2022 9 (a public servant) was deterred by the petitioner from discharging his official duties. Such being the position, allowing the above C.C. Case to proceed further will amount to abuse of the process of the court. Accordingly, all proceedings in C.C. 293 of 2006 on the file of the Chief Judicial Magistrate, Ernakulam is quashed.” ## In a recent judgment of the Supreme Court in N.S.Madhanagopal & Another v. K.Lalitha [2022 Live Law (SC) 844], it was held:- “Section 294(b) of the IPC talks about the obscene acts and songs. Section 294 of the IPC as a whole reads thus: "294.Obscene acts and songs - Whoever, to the annoyance of others - (a) does any obscene act in any public place,or (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 to be noted that the test of obscenity under Section 294(b) of the I.P.C. is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences. The following passage from the judgment authored by Justice CRL.MC NO. 6089 OF 2022 10 K.K. Mathew (as his Lordship then was) reported in P.T. Chacko v. Nainan (1967 KLT 799) explains as follows: “The only point argued was that the 1[st] accused has not committed an offence punishable under Section 294(b) IPC, by uttering the words above-mentioned. The courts below have held that the words uttered were obscene and the utterance caused annoyance to the public. I am not inclined to take this view. In the Queen v. Hicklin, [L.R.] 3 Q.B. 360 at 371 Cockburn C.J. Laid down the test of ‘obscenity’ in these words: “……. the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences” This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881. In Samuel Roth v. U.S.A., 354 US 476 (1957), Chief Justice Warren said that the test of ‘obscenity’ is the “substantial tendency to corrupt by arousing lustful desires”. Mr. Justice Harlan observed that in order to be ‘obscene’ the matter must “tend to sexually impure thoughts”. I do not think that the words uttered in this case have such a tendency. It may be that the words are defamatory of the complainant, but I do not think that the words are ‘obscene’ and the utterance would constitute an CRL.MC NO. 6089 OF 2022 11 ## offence punishable under S. 294(b) IPC”. It has to be noted that in the instance case, the absence of words which will involve some lascivious elements arousing sexual thoughts or feelings or words cannot attract the offence under Section 294(b). None of the records disclose the alleged words used by the accused. It may not be the requirement of law to reproduce in all cases the entire obscene words if it is lengthy, but in the instant case, there is hardly anything on record. Mere abusive, humiliating or defamative words by itself cannot attract an offence under Section 294(b) IPC. To prove the offence under Section 294 of IPC mere utterance of obscence words are not sufficient but there must be a further proof to establish that it was to the annoyance of others, which is lacking in the case. No one has spoken about the obscene words, they felt annoyed and in the absence of legal evidence to show that the words uttered by the appellants accused annoyed others, it can not be said that the ingredients of the offence under Section 294 (b) of IPC is made out.” 6. Having regard to the law laid down by this Court in P.T.Chacko (supra), Latheef (supra), Sangeetha Lakshmana (supra) and the law down by the Supreme Court in N.S.Madhanagopal and CRL.MC NO. 6089 OF 2022 12 Another (supra), which quotes with approval the judgment of this Court in P.T.Chacko (supra), I am of the view that the proceedings against the petitioners cannot be sustained. Therefore, all further proceedings against the petitioners in C.C.No.1690 of 2021 on the file of the Judicial First Class Magistrate Court, Mattancherry will stand quashed as against the petitioners. Sd/GOPINATH P. JUDGE DK CRL.MC NO. 6089 OF 2022 13 ## **`APPENDIX OF CRL.MC 6089/2022`** ## `PETITIONER ANNEXURES` ``` Annexure A1A TRUE COPY OF THE FIR IN CRIME NO 608 /2021 OF SUB INSPECTOR OF POLICE, MATTANCHERRY ALONG WITH THE FIRST INFORMATION STATEMENT Annexure A2A CERTIFIED COPY OF THE FINAL REPORT IN CC NO. 1690 OF 2021 OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, MATTANCHERRY ```