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Preethimon vs State Of Kerala Represented By The on 22 November, 2007

Kerala High Court
Preethimon vs State Of Kerala Represented By The on 22 November, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 5637 of 2003()


1. PREETHIMON, AGED 30, RESIDING AT
                      ...  Petitioner
2. SUGATHAN, AGED 18, RESIDING AT

                        Vs



1. STATE OF KERALA REPRESENTED BY THE
                       ...       Respondent

                For Petitioner  :SRI.K.RAMAKUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.T.SANKARAN

 Dated :22/11/2007

 O R D E R
                            K.T. SANKARAN, J.
                  ---------------------------------------------
                     CRL.M.C.NO. 5637 OF 2003
                 ---------------------------------------------
              Dated this the 22nd day of November, 2007

                                 O R D E R

The petitioners are the accused persons in C.C.No.555 of

2002, on the file of the Court of the Judicial Magistrate of the first

class II, Kanjirapally. The offences alleged against them are

under Sections 448, 294(b) and 506(1) read with Section 34 of the

Indian Penal Code. On appearance before the court below, they

filed an application under Section 258 of the Code of Criminal

Procedure, which was dismissed by the trial court and the order of

the trial court was confirmed in Crl.R.P.No.18 of 2003, on the file

of the Court of Session, Kottayam. The prayer in the Crl.M.C is to

quash Annexure-B order in Crl.R.P.No.18 of 2003 as well as to quash

all the proceedings in C.C.No.555 of 2002, on the file of the Court

of the Judicial Magistrate of the first class II, Kanjirapally.

2. It is submitted by the counsel for the petitioner that even

if all the allegations contained in Annexure-A FIR are taken as true,

CRL.M.C. NO.5637 OF 2003 D

:: 2 ::

no offence is made out against the petitioners. Accused No.1 is an

advocate while accused No.2 is a member of the panchayat. It is

stated in Annexure-A FIR that the accused came to the police

station and enquired about the petition submitted by Soosan, the

wife of the second accused and in respect of which Crime No.206 of

2001 was registered. The further allegation in the FIR is as follows:

CRL.M.C. NO.5637 OF 2003 D

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3. Sri.K.Ramakumar, learned counsel appearing for the

petitioners, submitted that the allegations made in the FIR do not

constitute an offence under Section 294(b) of the Indian Penal

Code. He relied on the decisions in Santhilal v. Parameswaran

Pillai (1988 (2) KLT Short Notes Case No.112 at page 74),

P.T.Chacko v. Nainan Chacko (1967 KLT 799), Chacko George v.

State of Kerala (1968 KLT 219) and Ranjit V.Udeshi v. State of

Maharashtra (AIR 1965 SC 881) in support of this contention.

4. Section 294 of the Indian Penal Code reads as follows:

“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

CRL.M.C. NO.5637 OF 2003 D

:: 4 ::

months, or with fine, or with both.”

In order to constitute an offence under Section 294(b), the accused

must sing, recite or utter any obscene song, ballad or words, in or

near any public place. The question is whether the words allegedly

uttered by the accused would constitute obscene words.

5. In P.T.Chacko v. Nainan Chacko (1967 KLT 799), Justice

K.K.Mathew (as His Lordship then was) considered the question

whether the words ”

” uttered by the first accused would

constitute an offence under Section 294(b) and whether those

words would be obscene. In paragraph 5 of the judgment it was

held thus:

“5. The only point argued was that the 1st 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
1868-3-Q.B.360 at 371 Cockburn C.J., laid down the test
of ‘obscenity’ in these words:

CRL.M.C. NO.5637 OF 2003 D

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“…. 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 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.”

6. In Chacko George v. State of Kerala (1968 KLT 219),

Justice K.Sadasivan (as His Lordship then was) laid down the test of

‘obscenity’ as follows:

“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’. The words uttered must be capable of
arousing sexually impure thoughts in the minds of the
hearers.”

CRL.M.C. NO.5637 OF 2003 D

:: 6 ::

7. In Ranjit V.Udeshi v. State of Maharashtra (AIR 1965 SC

881), the Supreme Court, while dealing with the question whether

the accused persons, who were partners of a book stall committed

the offence under Section 292 of the Indian Penal Code (1860) as

they were found in possession for the purpose of sale copies of an

alleged obscene book called “Lady Chatterley’s Lover”, considered

the test of obscenity, and held thus:

“…. I think 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, and into whose hands a
publication of this sort may fall. … it is quite certain
that it would suggest to the minds of the young of either
sex, or even to persons of more advanced years,
thoughts of a most impure and libidinous character.”

8. I am of the view that the words allegedly uttered by the

accused cannot be said to be obscene words. I respectfully follow the

decisions referred to above.

9. Learned Public Prosecutor submitted that it is also stated in the

FIR as follows:

CRL.M.C. NO.5637 OF 2003 D

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Learned Public Prosecutor laid stress on the word ”

and contended that there are allegations in the FIR that the accused

persons uttered obscene words. In answer to this contention,

Sri.K.Ramakumar submitted that the vague allegation that there was

utterance of obscene words in the FIR is not enough to constitute an

offence under Section 294(b) IPC.

10. He relied on the decision in Santhilal v. Parameswaran

Pillai (1988 (2) KLT Short Notes Case No.112 at page 74), wherein it

was held:

“It is not stated either in the complaint or sworn
statement what the words used were, while alleging an
offence under S.294 IPC. Without that, it is not possible
for a court to consider whether the offence under S.294
is attracted.”

CRL.M.C. NO.5637 OF 2003 D

:: 8 ::

11. A vague or general statement in the FIR that the accused

showered obscene words is not enough to constitute an offence under

Section 294(b). It is necessary to state the words uttered by the

accused. The prosecution would not be justified in bringing in the

evidence for the first time the words allegedly spoken to by the

accused, when the same is not recorded in the First Information

Statement in a case instituted upon police report. The complaint or the

FIR, as the case may be, shall contain the words spoken to by the

accused, which, according to the prosecution, would attract the offence

under Section 294(b) of the Indian Penal Code. Or else, there is every

possibility of evidence being tendered putting forth any words as the

prosecution witnesses may wish to put forward improving upon or adding

to the allegation in the complaint or FIR causing great prejudice to the

accused and depriving his right to have a fair trial.

12. I am of the view that even if all the averments in the FIR are

taken as true, no offence under Section 294(b) is made out. Cognizance

of offence under Section 294(b) is accordingly, set aside.

CRL.M.C. NO.5637 OF 2003 D

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13. Learned counsel for the petitioner would also contend that no

offence under Section 448 is made out. He submitted that police station

being a public place, it cannot be said that the ingredients of Section 441

(criminal trespass) are made out. Section 441 provides that whoever

enters into or upon property in the possession of another with intent to

commit an offence or to intimidate, insult or annoy any person in

possession of such property, or having lawfully entered into or upon such

property, unlawfully remains there with intent thereby to intimidate,

insult or annoy any such person, or with intent to commit an offence is

said to commit criminal trespass. Section 442 provides that whoever

commits criminal trespass by entering into or remaining in any building,

tent or vessel used as a human dwelling or any building used as a place

for worship, or as a place for the custody of property, is said to commit

“house trespass”. Section 448 provides the punishment for house

trespass. I do not agree with the learned counsel for the petitioners that

the allegations made in the First Information Report do not make out an

offence under Section 448 of the Indian Penal Code. Jurisdiction under

Section 482 cannot be invoked to quash the proceedings in this case in

respect of the offence under Section 448 of the Indian Penal Code. I am

CRL.M.C. NO.5637 OF 2003 D

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also of the view that it cannot be said that the allegations in the FIR do

not constitute an offence under Section 506(1) IPC. I make it clear that

the observations made by me in respect of the offences under Sections

448 and 506(1) are meant only to decide whether jurisdiction under

Section 482 can be invoked at this stage.

In the result, the Criminal Miscellaneous Case is partly allowed.

The charge against the petitioners, in so far as it relates to the offence

under Section 294(b) of the Indian Penal Code, is quashed. The case

shall continue against the petitioners only for rest of the offences alleged

against them.

(K.T.SANKARAN)
Judge

ahz/

K.T.SANKARAN, J.

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Crl.M.C.NO. 5637 OF 2003 D

O R D E R

22nd November, 2007

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