Kerala High Court
Rajeesh vs State Of Kerala on 20 November, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
Crl.M.C.No.7070/2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA, 1941
Crl.MC.No.7070 OF 2019(C)
AGAINST THE ORDER/JUDGMENT IN CC 887/2015 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -IV,KOZHIKODE
CRIME NO.457/2015 OF Vellayil Police Station , Kozhikode
PETITIONERS/ACCUSED NOS. 1 TO 3:
1 RAJEESH,AGED 37 YEARS
S/O. SREEDHARAN, KANIYARAKKAL HOUSE, WEST HILL, KOZHIKODE -
673 005.
2 SHONITHA,W/O. RAJESH, KANIYARAKKAL HOUSE, WEST HILL,
KOZHIKODE - 673 005.
3 DEVAYANI,W/O. SREEDHARAN, KANIYARAKKAL HOUSE, WEST HILL,
KOZHIKODE - 673 005.
BY ADV. SRI.SUVIN.R.MENON
RESPONDENTS/STATE:
1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM - 682 031.
2 STATION HOUSE OFFICER,VELLAYIL POLICE STATION, BEACH ROAD,
WEST HILL, KOZHIKODE, KERALA - 673005.
* 3 SUHESH.P.N,KALATHIL HOUSE, CIVIL STATION.P.O,KOZHIKODE-673020
* 4 SATHYABHAMA,KALATHIL HOUSE, CIVIL STATION.P.O, KOZHIKODE-
673020
* 5 T.RESHMA.,KALATHIL HOUSE, CIVIL STATION.P.O,KOZHIKODE,
KERALA-673020.
* ARE IMPLEADED AS ADDL.R3 TO ADDL R5 AS PER ORDER DATED
29.10.2019 IN CRL.M.A.2/2019 IN CRL.M.C.7070/2019
R3-5 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR
R3-5 BY ADV. SRI.DHEERAJ KRISHNAN PEROT
OTHER PRESENT:
SRI.AMJAD ALI, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.11.2019, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.7070/2019 2
ALEXANDER THOMAS, J.
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Crl.M.C.No.7070 of 2019
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Dated this the 20th day of November, 2019
ORDER
The prayer in the above Criminal Miscellaneous Case filed under Section 482 of Cr.P.C is as follows:-
"......pleased to quash Annexure A1 Final Report in Crime No. 457 of 2015 of Vellayil Police Station submitted before the Judicial First Class Magistrate - IV, Kozhikode I and pending as C.C. No.887 of 2015 on the files of Judicial First Class Magistrate Court-IV, Kozhikode."
2. Heard Sri. Suvin. R. Menon, learned counsel appearing for the petitioners, Sri. Amjad Ali, learned Public Prosecutor appearing for R1 and R2 and Sri. V.V. Nandagopal Nambiar, learned counsel appearing for contesting respondents 3 to 5 (def facto complainant and the two injured persons concerned).
3. The petitioners herein have been arrayed as accused Nos.1 to 3 among the three accused in the instant impugned Annexure-A2 Crime No.457/2015 of Vellayil Police Station, Kozhikode, which was initially registered for offences punishable under Sections, 341, 323, 294(b),506(i), 379, 426 and 34 of the IPC. The said crime has been registered pursuant to the directions issued by the learned Magistrate under Section 156(3) of Cr.P.C., whereby the Police was directed to register a crime and conduct investigation in respect of the allegations raised in the private criminal Crl.M.C.No.7070/2019 3 complaint filed by the 3rd respondent de facto complainant. It is on this basis, the impugned Annexure-A2 crime has been registered on 6.7.2015 in respect of the alleged incident which happened on 13.4.2015. The 3rd respondent de facto complainant's wife is respondent No.5, who in turn happens to be the sister of the 1 st petitioner herein (A1) and the daughter of the 3rd petitioner herein (A3). The 2nd petitioner herein (A2) is the wife of the 1st petitioner herein.
4. The prosecution case in short is that 3 rd respondent and 5th respondent had visited the house of the petitioners on 13.4.2015, where the 4th respondent was then residing for some time. That on 13.4.2015 at about 8.30 p.m., the 1st petitioner (A1) had caught hold of R4 herein and hit her with his hand at which point of time, R5 had intervened, upon which the 1st petitioner (A1) had abused her in extremely foul and obscene language and that then, the 2nd and 3rd petitioners (A2 and A3) had pushed the 5th respondent. Further it is alleged that in the said altercation, the gold ornaments of the 5th respondent were lost and one scooter was damaged and that according to the first informant, the accused persons have also committed theft etc. It appears that in the course of investigation , the 3 rd respondent de facto complainant and the 5th respondent had given statement before the Investigating Officer stating that the gold ornaments were found out later and the scooter was not actually damaged. On this basis, the Police has deleted the offences as per Sections 379 and 426 of the IPC in the instant crime. The Police, after investigation, has filed the impugned Annexure-A1 Crl.M.C.No.7070/2019 4 final report/charge sheet in Annexure-A2 Crime No.457/2015 of Vellayil Police Station, whereby the petitioners herein have been arrayed as the three accused therein and the offences alleged now are those punishable under Sections 341, 323, 294(b) and 506 (i) r/w.Sec.34 of the IPC. The Judicial First Class Magistrate Court-IV, Kozhikode has subsequently taken cognizance in this matter and the case is now pending as Calendar Case, C.C.No.887/2015 on the file of the Judicial First Class Magistrate Court-IV, Kozhikode.
5. The petitioners seek quashment of the impugned criminal proceedings. The main contentions raised by the petitioners are to the following effect:- The alleged incident is said to have happened as early as on 13.4.2015 whereas the impugned criminal proceedings has been set in motion only in the 1 st week of July, 2015 and there is no credible and reasonable explanation whatsoever for the prosecution to even remotely justify the long delay in this regard and that the long and unexplained delay will vitiate the impugned criminal proceedings, as the allegations are the product of afterthought and fabrication. Further that the parties are close relatives and simple disputes have been blown out of proportion by the contesting respondents and that even the police are now convinced that the allegations of theft and mischief are factually wrong in as much as the charge witnesses themselves have admitted that the gold ornaments have been found out and that no damage has been caused to the scooter etc. and now the Police has deleted the offences as per Sections 379 and 426 of the IPC. That the Crl.M.C.No.7070/2019 5 above said aspect is a clear indication that the allegations are motivated, false and are vitiated by such embellishments. In that regard, it is pointed out that yet another private criminal complaint has been filed by respondent No.3 against the 1st petitioner, which is pending etc. The other contentions raised are to the effect that even going by the admitted allegations, the offences as per Section 294(b) (use of obscene word) and Section 341 ( punishment for wrongful restraint) are not made out, and that the remaining offences are non-cognizable and bailable and in view of the long delay, this Court may interdict in the matter etc.
6. As regards the offence as per Section 294(b) of the IPC is concerned, it is seen that the only allegation raised in the impugned prosecution materials is to the effect that the accused persons, more particularly, A1 had used extremely foul and obscene language against the 4th respondent etc. It is now well settled by a series of rulings as in Latheef v. State of Kerala [2014(2) KHC 604], Sangeetha Lakshmana v. State of Kerala [2008(1) KHC 812] and P.T. Chacko v. Nainan Chacko [1967 KLT 799] that the mere use of vulgar and abusive language cannot be the basis to make out an offence as per Section 294(b) of IPC and that the complainant should have a specific case that the alleged words used by the accused was lascivious in content, which have capability of arousing impure and defiling sexual thoughts in the minds of the hearers etc. Further that the complainant shall specifically state as to what exactly were the alleged obscene words used by the accused persons etc. Further it is also well settled that the Crl.M.C.No.7070/2019 6 incident should have taken place in a public place and in the instant case, admittedly, the scene of occurrence of the alleged incidents is the residential house of the petitioners herein. It will be profitable to refer paragraph No.5 of the decision of this Court in Latheef's case (supra), 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 S.294(b) IPC it must satisfy the definition of obscenity. S.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 KHC 231: 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 Lakshamana v. State of Kerala reported in 2008 (1) KHC 812: 2008(2) KLT 745: 2008 (1) KLD 339 this 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. In the result, this revision petition is allowed. The conviction and sentence against the revision petitioner under S.294(b) IPC in ST No.3810/1998 of the Judicial First Class Magistrate Court, Chittoor are set aside, on the finding in revision that the revision petitioner is not guilty of the offence punishable under S.294(b) IPC. The revision petitioner will stand released from prosecution on acquittal, and the bail bond executed by him will stand discharged."
7. After hearing both sides, it is seen that, other than raising Crl.M.C.No.7070/2019 7 the allegation that the 1st petitioner herein has used abusive and obnoxious language, the complainant does not have any case that the accused persons had used lascivious words, which have capability of arousing impure and defiling sexual thoughts in the minds of its hearers etc. Further the alleged use of words has taken place in the residential house of the 1st petitioner,which is not a public place. For these reasons, it is only to be held that the vital ingredients of the offence as per Section 294(b) of IPC (use of obscene words) are not made out in this case.
8. Now, the contention of the petitioners based on Section 341 of IPC (punishment for wrongful restraint) could be dealt with. Section 339 of the IPC defines 'wrongful restraint' as follows:-
"339. Wrongful restraint.- whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Exception.- The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right o obstruct, is not an offence within the meaning of this section."
From a reading of the prosecution materials, it can be seen that there are no allegations in the prosecution materials including the statement made by the witnesses that any one of them, whoever, in any manner, wrongfully restrained by the accused. Further it is to be noted that the scene of occurrence is none other than the residential house of the petitioners and that the 4th respondent is their relative through marriage, who was staying there for some time as a guest and R3 and Crl.M.C.No.7070/2019 8 R5 had also come there as guests. In the light of these aspects, this Court is constrained to take the view that the vital ingredients of the offence as per Section 339 of the IPC (wrongful restraint) are not made out in this case. The remaining two offences are those involving 506(i) (criminal intimidation) and Section 323 of IPC (punishment for voluntarily causing hurt). Both these offences are non-cognizable as well as bailable. There is delay of about three months and three weeks in the initiation of the impugned criminal proceedings, after the occurrence of the alleged incident, which had happened as early as on 13.4.2015 . Respondents 3 to 5 had also raised complaint that the accused persons had also committed offences of theft (Section 379 of IPC) as well as offence of mischief (Section 426 of IPC). Now based on the statements of the charge witnesses, the Police are now convinced that the said allegations are factually wrong and those offences have been deleted. This is the clear indication that the very believability and credibility of the prosecution case is at stake. Added to this, there is long and unexplained delay in the initiation of the criminal proceedings, from which this Court would infer on a reasonable basis that these allegations could be the product of fabrication and aforethought, more so particularly, as the incidents had occurred on account of the disputes between relatives, who are related through marriage. Moreover, the remaining two offences are non-cognizable as well as bailable. In the light of all these aspects, this Court is constrained to take the view that further continuation of the impugned criminal proceedings would be a Crl.M.C.No.7070/2019 9 sheer wastage of precious resources and time of the police machinery, prosecution agency and the criminal courts and therefore, the impugned criminal proceedings could be interdicted by exercising inherent powers conferred under Section 482 of Cr.P.C. In that view of the matter, it is ordered that the impugned Annexure-A1 final report/charge sheet filed in Crime No.457/2015 of Vellayiil Police Station, Kozhikode, which has now led to the pendency of Calendar Case, C.C.No.887/2015 on the file of the Judicial First Class Magistrate Court-IV, Kozhikode and all further proceedings arising therefrom pending against the petitioners/ accused will stand quashed. The petitioners will produce certified copy of this order before the court below concerned as well as the Investigating officer concerned. The office of the Advocate General will also forward a certified copy of this order to the Investigating Officer concerned.
With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE.
acd Crl.M.C.No.7070/2019 10 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF THE FINAL REPORT
FILED IN CRIME NO.457 OF 2015 OF
VELLAYIL POLICE STATION SUBMITTED
BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE - IV, KOZHIKODE.
ANNEXURE A2 A TRUE COPY OF THE FIRST INFORMATION
REPORT IN CRIME NO.457 OF 2015 OF
VELLAYIL POLICE STATION.
True Copy
P.S. To Judge.