Vinod K.K & Rithu v. State of Kerala & Suja Philip

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942 Crl.MC.No.4364 OF 2020(E)** **CRIME NO.591/2020 OF Ernakulam South Police Station , Ernakulam** ## **PETITIONERS/ACCUSED NO.1&2:** |**1**|**VINOD K.K**| |---|---| ||**AGED 51 YEARS**| ||**S/O.K.K KUMARAN,**| ||**4B, SMS SERENITY,**| ||**SUB STATION ROAD,**| ||**SOUTH PANAMPILLY NAGAR,**| ||**KADAVANTHARA, KOCHI 20**| |**2**|**RITHU,**| ||**AGED 14 YEARS**| ||**MINOR, D/O. K.K VINOD, 4B,**| ||**SMS SERENITY II,**| ||**SUB STATION ROAD,**| ||**SOUTH PANAMPILLY NAGAR,**| ||**KADAVANTHARA P.O, KOCHI 682 020,**| ||**REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN**| ||**SARI VINOD, W/O. K.K VINOD,**| ||**4B,SMS SERENITY II, SUB STATION ROAD,**| ||**SOUTH PANAMPILLY NAGAR,**| ||**KADAVANTHARA P.O,**| ||**KOCHI 682 020**| ||**BY ADVS.**| ||**SRI.K.R.VINOD**| ||**SMT.M.S.LETHA**| ||**KUM.K.S.SREEREKHA**| ||**SRI.NABIL KHADER**| ||**LIYA THANKACHAN**| ||**FATHIMA NARGIS K.A.**| |**RESPONDENTS**<br>**:**|**RESPONDENTS**<br>**:**|| |---|---|---| |**1**||**STATE OF KERALA**| |||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| |||**HIGH COURT OF KERALA,**| |||**KOCHI 682 031**| **Crl.MC.No.4364 OF 2020(E)** **2** **2** **SUJA PHILIP, AGED ABOUT 40 YEARS W/O. JOSE PRAKASH, FLAT NO. 4A, SMS SERENITY, SUB STATION ROAD, SOUTH PANAMPILLY NAGAR, KADAVANTHARA P.O, KOCHI 682 020** **BY ADV.** **R2 BY ADV. SRI.K.V.ARUN KUMAR SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.4364 OF 2020(E)** **3** ## **ALEXANDER THOMAS, J. -----------------------------------Crl.M.C. No.4364 of 2020** **-----------------------------------Dated this the 27[th] day of November, 2020** ## **ORDER** The prayers in the aforecaptioned Criminal Miscellaneous Case filed under Section 482 of the Cr.P.C. are as follows: - _“(a) Call for the records pertaining to Annexure AI F.I.R. No.591/2020 of Ernakulam Town South Police Station and quash the same invoking the inherent powers of this Hon’ble Court u/s 482 of the Code of Criminal Procedure._ - _(b) To issue any other order appropriate in the circumstances of this case.”_ 2. Heard Sri.K.R.Vinod, learned counsel appearing for the petitioners (A1 & A2) and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R1-State of Kerala. Though notice has been duly served on contesting respondent No.2 (lady de facto complainant) there is no appearance for the said party. 3. The petitioners herein have been arrayed as accused 1 & 2 among the two accused in the instant impugned Annexure A1 FIR in crime No.591/2020 of Ernakulam Town South Police Station for offences punishable under Sections 354D(1)(ii), 294(b),506 and Section 34 of the IPC on the basis of the First Information Statement **Crl.MC.No.4364 OF 2020(E)** **4** given by the 2[nd] respondent (lady de facto complainant) on 23.08.2019 at about 2.30 p.m. in respect of the alleged incident which happened between 19.08.2020 and 21.08.2020. 4. The brief of the prosecution case is that the 1[st] petitioner (A1) is the father of the 2[nd] petitioner (A2, minor daughter) and that the 1[st] petitioner, his wife and his two daughters are residing in a flat wherein the 2[nd] respondent (lady de facto complainant) and her family members are also residing and that 1[st] petitioner has placed a CCTV camera in the terrace of the said flat building, where the lady inmates frequently use their premises for doing their yoga and other exercises, and this has been done to invade into the privacy of the said women inmates of the flats including the 2[nd] respondent and that the petitioner used to watch the said CCTV footages from his residential flat and that the 1[st] petitioner so installed the CCTV without the authorization of the residents association of the apartment and that on 21.08.2020, the petitioners quarreled with the other inmates regarding the said issue of installation of the CCTV and that the petitioners have used abusive and foul language and that the 1[st] petitioner threatened and intimidated the 2[nd] respondent – de facto complainant that he would kill her and that this was also aided by the 2[nd] petitioner at that time etc. **Crl.MC.No.4364 OF 2020(E)** **5** 5. The main complaint of the petitioners is that the Annexure A1 crime has been registered at the instance of the 2[nd] respondent as a counterblast to FIR No.592 of 2020 of Ernakulam Town South Police Station filed at the instance of the 2[nd] petitioner alleging assault and outraging her modesty by three persons including the 2[nd] respondent herein on 21.08.2020 at 1 p.m. This Court has already passed judgment dated 23.09.2020 in WP(C) No.188221 of 2020 filed by the wife of the 1[st] petitioner (who is the mother of 2[nd] petitioner herein) whereby the investigation in respect of the said crime No.592 of 2020 of Ernakulam Town South Police Station in which 2nd petitioner is herein is the de facto complainant/victim, has been ordered to be entrusted for further investigation by a superior officer as may be ordered by the District Police Chief concerned and further that the District Police Chief will also be at liberty to ensure that further investigation in respect of the present crime No.591 of 2020 of Ernakulam Town South Police Station could also be entrusted to the said officer etc. One of the contentions raised by the counsel for the petitioners is that the ingredients of the offences are not made out in Annexure A1 FIR and so the proceedings are liable to be quashed. A reading of the judgment dated 23.09.2020 rendered by this Court in WP(C) No.18221 of 2020 would make it clear that while considering **Crl.MC.No.4364 OF 2020(E)** **6** the issues in that case, no plea was made by the petitioner therein, who was representing the 2[nd] petitioner herein as her guardian, that the present crime No.591 of 2020 of Ernakulam Town South Police Station is liable for quashment and on the other hand, when the Public Prosecutor submitted that if the other case concerned (crime No.592 of 2020) is entrusted to a superior officer, as prayed for in the said WP(C), then the further investigation in respect of the present crime No.591 of 2020 may also be ordered to be entrusted to the same superior officer as incidents in both cases have arisen on account of various issues in the same apartment complex etc. At that time no objection was raised that the present crime No.591 of 2020 of Ernakulam Town South Police Station is liable for quashment and that separate proceedings will be set in motion for quashing the same etc. But on the other hand the said plea of the Public Prosecutor was not opposed by the petitioner which led to this Court ordering in the judgment dated 23.09.2020 in WP(C) No.18221 of 2020 that both the crimes could be entrusted for further investigation to a superior officer as may be ordered by the District Police Chief concerned. Further, the learned Public Prosecutor has pointed out that issues in relation to both these cases have arisen on account of various disputes between the inmates of the apartment where the petitioners are residing and **Crl.MC.No.4364 OF 2020(E)** **7** that the investigation in this case may not be interdicted as this Court itself directed in the judgment dated 23.09.2020 rendered by this Court in WP(C) No.18221 of 2020 to ensure the entrustment of the further investigation in both the cases to the same superior officer etc. The said contentions of the learned Public Prosecutor appearing for the 1[st] respondent are seriously opposed by the counsel for the petitioner. 6. Having regard to the facts and circumstances of this case, this Court is inclined to take the view that the case as against the 2[nd] petitioner herein, who is only a minor girl aged hardly 14 years, could be considered for quashment in this case. The offence as per Section 354D(1)(ii) will not lie against a woman going by the necessary ingredients of that offence. It is really hard to believe that the 2[nd] petitioner who is a minor girl hardly at the age of 14 years would have done anything too serious so as to attract the offence of criminal intimidation as envisaged by Section 506 of the IPC. The remaining offence against her is only the one as per Section 294(b) of the IPC. The main allegations are to the effect that the petitioners used vulgar and foul language in the course of the altercations with the 2[nd] respondent. 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], _**P.T.**_ **Crl.MC.No.4364 OF 2020(E)** **8** _**Chacko v. Nainan Chacko**_ [1967 KLT 799] and _**Sangeetha Lakshmana v. State of Kerala**_ [2008 (2) KLT 745], that mere uttering out of abusive and vulgar words, however abusive and humiliating it may be, will not disclose the offence of uttering of obscene words as envisaged in Section 294(b), unless the words used are lascivious and have capacity to raise impure sexual thoughts and desires in the minds of the hearers etc. Reference in this connection could be made to paragraph No.5 in the decision 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 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_ **Crl.MC.No.4364 OF 2020(E)** **9** _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.”_ Hence it can be seen that even going by the admitted allegations in the prosecution materials which only allege use of abusive and foul language, will not constitute the offence of utterance of obscene words as per Section 294(b) of the IPC. 7. In that view of the matter, it is ordered that the impugned criminal proceedings at Annexure A1 in crime No.591 of 2020 of Ernakulam Town South Police Station, to the extent it is directed as against the 2[nd] petitioner (A2) will stand quashed. Further it is also ordered that the impugned criminal proceedings at Annexure A1 crime No.591 0f 2020 of Ernakulam Town South Police Station to the limited extent, it is directed as against the 1[st] petitioner (A1) to the limited extent it alleges offences as per Section 294(b) of the IPC will also stand quashed. The investigation in respect of the other offences alleged as against the 1[st] petitioner (A1) as per Sections 354D(1)(ii) and 506 of the IPC may go on in accordance with law. Since the investigation in respect of Annexure A1 crime No.591 of 2020 of Ernakulam Town South Police Station has also been ordered to be handed over to the superior officer while entrusting the further **Crl.MC.No.4364 OF 2020(E)** **10** investigation in respect of crime No.592 of 2020 of the said Police Station, the new investigating officer will ensure that a fair and proper investigation is conducted so as to raise confidence in all the stakeholders concerned. After filing of the final report, in case any of the parties concerned have any legally justiciable grievances thereto, they will be at liberty to workout their remedies in accordance with law. It is made clear that this Court has not entered into the merits of the allegations raised as against the 1[st] petitioner herein(A1) as regards the abovesaid offences in question and the investigation thereon may be conducted, fairly and properly and untrammelled and uninfluenced in any manner by observations and findings made by the this Court hereinabove. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** SCS **Crl.MC.No.4364 OF 2020(E)** **11** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 THE CERTIFIED COPY OF THE FIR NO. 591/2020 OF ERNAKULAM TOWN SOUTH POLICE STATION** **ANNEXURE A2 THE COPY OF THE FIR NO. 592/2020 OF ERNAKULAM TOWN SOUTH POLICE STATION** - **ANNEXURE A3 THE COPY OF THE PLAINT IN OS NO. 351/2020 IN THE FILES OF MUNSIFF'S COURT, ERNKULAM** **ANNEXURE A4 THE PHOTOGRAPHS SHOWING PLAYING FOOTBALL AS WELL AS SHUTTLE BADMINTON ON THE ROOFTOP OF THE APARTMENT COMPLEX.** **ANNEXURE A5 THE PHOTOGRAPH OF THE CCTV CAMERA ERECTED BY THE 1ST PETITIONER ON 19-082020** **ANNEXURE A6 THE PHOTOGRAPH SHOWING THE DISMANTLING OF CCTV CAMERA ERECTED BY THE 1ST PETITIONER IN THE TERRACE OF THE APARTMENT COMPLEX, BY ONE OF THE OFFICE BEARERS OF THE ASSOCIATION** ## **ANNEXURE A7** **THE PHOTOGRAPH SHOWING THE CCTV CAMERA ERECTED BY THE ASSOCIATION ON THE ROOF TOP WATCH STILL EXISTS** //TRUE COPY// PA TO JUDGE