Vishnu Vikraman v. State of Kerala and Addl. Vijayasree M.S.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 22ND DAY OF OCTOBER 2020 / 30TH ASWINA, 1942** ## **Crl.MC.No.907 OF 2020(C)** **AGAINST THE ORDER/JUDGMENT IN CC 1450/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ADOOR** **CRIME NO.1973/2013 OF Adoor Police Station , Pathanamthitta** ## **PETITIONER/S:** **VISHNU VIKRAMAN AGED 26 YEARS S/O. VIKRAM UNNITHAN, KUTTIYIL PUTHENVEEDU, CHOORAKKODU P.O., ADOOR, PATHANAMTHITTA-691 551** **BY ADVS. SRI.M.T.SURESHKUMAR SRI.R.RENJITH** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031** **2 ADDL. VIJAYASREE M.S. AGED 49 YEARS SOUGHT TO BE IMPLEADED** **R2 BY ADV. JOSE ANTONY** ## **OTHER PRESENT:** ## **SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.907 OF 2020(C)** **2** ## **ALEXANDER THOMAS, J.** ## **= = = = = = = = = = = = = = = = = Crl.M.C. No.907 of 2020** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 22[nd] day of October, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows : _“....to quash Annexure A2 final report and all other proceedings arising therefrom and pending as CC No. 1450 of 2014 of Judicial Magistrate of First Class, Adoor, Pathanamthitta District in the interest of justice and equity.”_ 2. Heard Sri.M.T.Suresh Kumar, learned counsel appearing for the petitioner (A4), Sri.B.Jayasurya, learned Public Prosecutor appearing for R1-State of Kerala and Sri. Jose Antony, learned counsel appearing for contesting respondent No.2 (lady defacto complainant). 3. The petitioner herein has been arrayed as the accused No.4 among the 4 accused in the instant Annexure-A1 FIR in Crime No. 1973 of 2013 of Adoor Police Station which has been registered on 29.10.2013 on the basis of the First Information Statement given by the 2[nd] respondent/lady defacto complainant on the same day in relation to the alleged incident which is said to have happened on 27.10.2013. The offences alleged are those punishable under Secs. 323, 294 (b), 341, 114, 188 & 34 of the IPC. The police after investigation has filed the impugned Annexure-A2 final report/charge sheet in the said Crime No.1973 of 2013 of Adoor Police Station, which has now led to the pendency of calendar case **Crl.MC.No.907 OF 2020(C)** **3** C.C.No.1450 of 2014 on the file of the Judicial First Class Magistrate Court, Adoor, Pathanamthitta District. 4. The brief of the prosecution case is to the effect that A1 in this case is the husband of the 2[nd] respondent/lady defacto complainant and A2 and A3 are the father and mother respectively of A1 (husband) and A4 is the nephew (sister's son) of A1. At the time of the alleged incident, the 2[nd] respondent/lady defacto complainant was aged about 42 years and A1 (husband) was aged about 48 years and that on the day in question, the 2[nd] respondent was taking rest after surgery and hospitalization and that A1 (husband) had come near her and abused her in filthy language and then assaulted her by kicking on her abdomen. Thereupon, A2 & A3 (parents of A1) and A4 (petitioner herein) who is the nephew of A1 had also come to the room of the lady defacto complainant and uttered out to A1 that the 2[nd] respondent is doing black magic to ensure the death of A1 and that therefore, the lady defacto complainant should be appropriately handled. The words allegedly uttered out to A1 at that time, are to the following effect : “ÈßæK æµÞÜïÞX çÕIßÏçÜï¿Þ ¥ÕZ µâç¿ÞdÄ¢ æºÏñÄí. ¥ÄáæµÞIí ¥Õæ{ ÖøßÏÞæA¿Þ .” 5. Further, it is common ground that A2 and A4 who are the parents of A1 have died during the pendency of the abovesaid criminal proceedings. Further, it is pointed out by the counsel for the petitioner that A1 is now in Kuwait in connection with his employment. **Crl.MC.No.907 OF 2020(C)** **4** 6. The main contention urged by the counsel for the petitioner is to the effect that even if the allegations raised in the impugned criminal proceedings in Annexures A1 and A2 are broadly assumed to be true, none of the ingredients of the alleged offences will be made out as against the petitioner herein (A4). The second contention urged by the petitioner is that after filing of this Crl.M.C. on 30.1.2020, later the entire disputes between the petitioner and the 2[nd] respondent/lady defacto complainant have been settled and the 2[nd] respondent has entered appearance through her counsel and has filed an affidavit dated 1.8.2020 which has been produced along with Crl.M.A.No.2 of 2020 in this Crl.M.C., wherein she has stated that the entire disputes between the petitioner herein and 2[nd] respondent have been resolved and that she does not have any further grievance as against the petitioner and that the impugned criminal proceedings to the extent it is directed as against the petitioner (A4) may be quashed by this Court and further that, she is hopeful that the matrimonial dispute with her husband (A1) would also be settled and she is waiting for initiative from his part. 7. As regards the first contention raised by the petitioner, the following aspect has to be borne in mind. The petitioner is stated to be the son of the sister of A1, who is the husband of the 2[nd] respondent. The petitioner is also living in the immediate neighbourhood of A1 and R2. R2 was then living in her matrimonial house along with her husband and A2 **Crl.MC.No.907 OF 2020(C)** **5** and A3, who are the parents of A1. A2 and A3 are now no more. The specific allegation is that on the day in question, due to certain disputes, A1 had come to her room and abused her in extremely filthy and foul language and assaulted her by kicking on her abdomen. Thereupon, A2, A3 and A4 had also come to the room and uttered out that it is learned that R2 is doing black magic to cause the death of A1 and that A1 should strongly and appropriately handled then on that account. 8. There are no allegations in the impugned criminal proceedings that A2 to A4, more particularly A4 has at any point of time, prior to the incident instigated and goaded A1 to assault or abuse R2, who is the wife of A1. The main allegation is that initially on account of certain disputes A1 had assaulted R2 by kicking on her abdomen and thereupon, A2 to A4 had come to the room and then uttered out the abovesaid words. Abetment is defined in Sec. 107 of the IPC which reads as follows : _**“107. Abetment of a thing** .—A person abets the doing of a thing, who— First.— Instigates any person to do that thing; or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”_ **Crl.MC.No.907 OF 2020(C)** **6** 9. Sec.114 of the IPC deals with the offence of abettor present ## when the offence is committed and the same reads as follows : _“_ _**114. Abettor present when offence is committed** .—Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.”_ 10. One of the basic requirement of fulfilling the ingredient of Sec.114 of the IPC is that the necessary ingredients of abetment as envisaged in Sec.107 should be necessarily satisfied. Going by the abovesaid admitted allegations in the impugned criminal proceedings, it cannot be said that the petitioner (A4) has made any prior effort so as to instigate and goad A1 to assault R2. Merely because A4 had rushed to the room after the assault had taken place and uttered out the abovesaid alleged words will not amount to a scenario that A4 has abetted A1 to commit the offence as per Sec.323 of the IPC. Moreover, there are no specific allegations are made by the 2[nd] respondent in the impugned criminal proceedings as to who among A2 to A4 has uttered out the abovesaid words. Therefore, even if it is assumed that the abovesaid utterance of the alleged words may have some colour of abetment, since there are no specific allegations as to who among the accused 2 to 4 has uttered out those words and as to whether all the three of them as stated has uttered such words etc. are not in any manner made out in the impugned criminal proceedings. Therefore, since the vital requirement of abetment of an offence as envisaged in Sec.107 of the IPC is conspicuously **Crl.MC.No.907 OF 2020(C)** **7** absent in this case, there is no question of envisaging the offence of Sec.114 of the IPC which deals with the scenario of abettor present, when the offence is committed. Therefore, it is only to be held that the offence as per Sec. 117 of the IPC is not made out as against the petitioner (A4) in the facts and circumstances of this case. ## 11. Sec.188 of the IPC reads as follows : ## _**“188** ._ _**Disobedience to order duly promulgated by public servant.** —_ _Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both._ _Explanation.—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm._ _Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section.”_ 12. Sec.195 of the Crl.P.C. reads as follows : ## _**“195** ._ _**Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.**_ _**(1)** No Court shall take cognizance(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or_ _(ii) of any abetment of, or attempt to commit, such offence, or_ _(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;_ _(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or_ _(ii) of any offence described in section 463, or punishable under section 471,_ **Crl.MC.No.907 OF 2020(C)** **8** _section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or_ _(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii),_ _(iv) except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate._ _**(2)** Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:_ _Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded._ _**(3)** In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section._ _**(4)** For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate:_ ## _Provided that-_ _(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;_ _(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.”_ 13. It is specifically mandated in Sec. 195 of the Cr.P.C. that an offence as per Sec. 188 of the IPC can be taken cognizance of by the competent criminal court only on the basis of a complaint in writing of the public servant concerned or of some other public servant, to whom he is administratively sub-ordinate. Therefore, the decision on the part of the learned Magistrate in having taken cognizance of the offence as per Sec.188 of the IPC in the instant case is illegal and ultravires. Therefore, the impugned criminal proceedings to the extent it involves the offence of Sec. 188 of IPC is liable for interdiction. **Crl.MC.No.907 OF 2020(C)** **9** 14. The other offences involved in this criminal proceedings are those punishable under Secs.323, 341 and 294(b) of the IPC. The said allegations as per Secs. 323 and 341 are exclusively attributed to A1 (husband of R2). The allegations raised against A2 to A4 are to the effect that they have abetted and were present. There are no allegations that the petitioner (A4) has committed the offences as per Secs. 323, 294(b) and 34 of the IPC. The main allegations are to the effect that A2 to A4 have abetted A1 to commit the abovesaid offences as per Secs. 323, 294(b) and 341 of the IPC and that A2 to A4 were present when A1 had committed the said offence on R2. Since, the ingredients of abetment as per Sec.107 of the IPC and as the offence as per Sec.114 of the IPC are not made out as against the petitioner (A4) on account of the earlier stated reasons, the said offences that the petitioner herein has abetted A1 to commit the offences as per Secs. 323, 294(b) and 341 of the IPC will not lie. Lastly, it has also been borne in mind that the allegations in the impugned criminal proceedings are to the effect that at the relevant time, A1 had used extremely filthy, abusive and foul language to R2. 15. 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 in order to attract the offence of uttering obscene words as envisaged in Sec.294(b) of the IPC, the **Crl.MC.No.907 OF 2020(C)** **10** necessary ingredient of obscenity as envisaged in Sec.292 of the IPC should be satisfied and that the alleged words should be lascivious and should be capable of arousing impure sexual thoughts in the mind of the hearers and mere use of abusive and foul language will not constitute the ingredients of Sec.294(b) of the IPC, which deals with utterance of abusive words. It will be profitable to refer to para No.5 of the decision of this Court in [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 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.”_ **Crl.MC.No.907 OF 2020(C)** **11** 16. Except raising a bald allegation that abusive and foul language has been used, there are no specific words alleged to have been used at the time of the alleged incident so as to bring out a case of Sec. 294(b) of the IPC. In the light of these aspects, it is only to be held that the allegation that the petitioner has either abetted the offence as per Sec. 294(b) of the IPC or that he had common intention along with A1 to commit the said offence as per Sec.294(b) of the IPC will not lie in the facts and circumstances of this case. 17. The limited allegations raised as against the petitioner (A4) are to the effect that after A1 had assaulted R2 by kicking on abdomen, A2 to A4 had entered the room and uttered out the abovesaid words in question. That is the only limited allegations made out as against A4. The said allegations cannot constitute the basis for alleging that the petitioner had common intention along with A1 to commit offences as per Secs.323 and 341 of the IPC etc. In other words, none of the offences alleged in the instant case are made out as against the petitioner. Therefore, the impugned criminal proceedings are liable for interdiction at the hands of this Court. 18. Further, it is also to be borne in mind that the 2[nd] respondent has now filed affidavit dated 1.8.2020 stating that the entire disputes between her and the petitioner (A4) who is her husband’s nephew have **Crl.MC.No.907 OF 2020(C)** **12** been fully resolved and that she does not have any subsisting grievance as against the petitioner herein and that she has no objection in quashing the criminal proceedings to the extent it is directed as against the petitioner herein. Further that, she is hopeful that the matrimonial disputes with her husband, who is now said to be employed in Kuwait will also be settled in future and that she is eagerly awaiting for an initiative from his part. It has also been borne in mind that A2 and A4, who are the parents of A1 have also died during the pendency of the abovesaid impugned criminal proceedings. 19. The above Crl.M.C. was filed on 30.1.2020 and when the case has come up for consideration on 31.1.2020, this Court had directed that the learned Public Prosecutor should get instructions from the investigating officer. The learned Public Prosecutor would submit that the investigating officer had then recorded the statement of the 2[nd] respondent on 4.2.2020. At that time, she had stated that she is not in a position to settle the disputes with the petitioner. Sri. Jose Antony, learned counsel for R2 would submit on the basis of the instructions of the party that later, due to the intervention of well wishers of the family, the entire disputes between the petitioner and R2 were settled, as the allegations raised against the petitioner were minor in nature and the same were raised on account of misunderstandings etc. she has now resolved the disputes and she has no objection in quashing the impugned criminal proceedings as **Crl.MC.No.907 OF 2020(C)** **13** against the petitioner and that she is hopeful that the disputes between her and her husband (A1), who is now based in Kuwait would also be settled in the immediate future etc. and that she is eagerly awaiting for initiative from his part. 20. Taking into account the totality of the facts and circumstances of this case, this Court is of the considered opinion that the discretion conferred under Sec.482 of the Cr.P.C. would be befittingly invoked in the facts and circumstances of this case. In that view of the matter, it is ordered that the impugned Annexure-A2 final report/charge sheet filed in the impugned Annexure-A1 Crime No.1973/2013 of Adoor Police Station, which has now led to the pendency of calendar case C.C. No.1450/2014 on the file of the Judicial First Class Magistrate Court, Adoor to the limited extent it is directed as against the petitioner herein (A4) and all further proceedings emanating therefrom to the extent it is directed as against the petitioner (A4) will stand quashed and set aside. The impugned criminal proceedings to the extent it is directed as against the other accused may proceed strictly in accordance with law and untrammeled and uninfluenced by any of the observations and findings made by this Court in this petition. The petitioner will produce a certified copy of this order before the investigating officer concerned as well as the before the Judicial First Class Magistrate Court, Adoor, who is dealing with CC No.1450/2014 for necessary information. **Crl.MC.No.907 OF 2020(C)** **14** With these observations and directions, the above Criminal Miscellaneous case will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** SKS **Crl.MC.No.907 OF 2020(C)** **15** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **TRUE COPY OF THE FIR AND FIS IN CRIME ANNEXURE-A1 NO.1973 OF 2013 OF ADOOR POLICE STATION, DATED 29.10.2013** **ANNEXURE-A2 TRUE COPY OF THE FINAL REPORTED DATED 5.1.2014 IN CRIME NO.1973 OF 2013 OF ADOOR POLICE STATION.**