Kerala High Court
Martin Antony vs State Of Kerala on 21 November, 2024
Author: P.V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
2024:KER:88228
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA, 1946
CRL.MC NO. 7906 OF 2019
CRIME NO.10/2019 OF KARIMANNOOR POLICE STATION, IDUKKI
AGAINST THE ORDER DATED IN CC NO.194 OF 2019 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -I (FOREST OFFENCES),
THODUPUZHA
PETITIONER/ACCUSED:
MARTIN ANTONY
AGED 33 YEARS
S/O. ANTONY,ATTHIKKAL HOUSE, NAYYASSERY BHAGOM,
KARIMANNOOR VILLAGE, KARIMANNOOR, IDUKKI,
PIN-685 581,
BY ADVS.
RENJITH B.MARAR
LAKSHMI.N.KAIMAL
SADCHITH.P.KURUP
C.P.ANIL RAJ
SRI.SUMESH.S.KALARICKEL
SMT.SINDHU K.S.
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REP BY THE SI OF POLICE KARIMANNOOR POLICE
2024:KER:88228
CRL.MC NO.7906 OF 2019
2
STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA,ERNAKULAM-682 031
2 SYROSH MATHEW,
MALKEPERAMBIL HOUSE, NEYYASSERY BHAGOM,
KARIMANNOOR VILLAGE, KARIMANNOOR,IDUKKI-685 581
BY ADV
SRI.DOMSON J.VATTAKUZHY (FOR R2)
OTHER PRESENT:
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 21.11.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
2024:KER:88228
CRL.MC NO.7906 OF 2019
3
P.V. KUNHIKRISHNAN, J.
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Crl.M.C.No.7906 of 2019
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Dated this the 21st day of November, 2024
ORDER
This Criminal Miscellaneous Case is filed to quash the proceedings in C.C No.194/2019 on the file of the Judicial First Class Magistrate Court-I, Thodupuzha. It is a prosecution initiated against the petitioner alleging offences punishable under Sections 341, 294(b) and 506(i) of the Indian Penal Code ( for short IPC).
2. The allegation against the petitioner is that the accused called the son of the defacto complainant as "Chattukalan" or something similar to a lame person. It is also alleged that the accused threatened that he will mentally and physically harass the defacto complainant. Annexure-A1 is the complaint based on which Annexure-A2 First Information Report was registered. Subsequently, after 2024:KER:88228 CRL.MC NO.7906 OF 2019 4 investigation Annexure-A8 Final Report is filed. According to the petitioner, even if the entire allegations are accepted no offences under Sections 341, 294(b) and 506(1) of the Indian Penal Code is made out against the petitioner.
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
4. Annexure-A3 is the First Information Report in this case. The relevant portion of Annexure-A3 First Information Report based on which the FIR is registered is extracted here under.
".............ആന്റണി സാറിന്റെ മകൻ മാർട്ടിൻ എന്നോട് " നീ എന്റെ മരം വെട്ടിക്കും അല്ലേടാ പിള്ളേർ വീട്ടിലുണ്ടല്ലോ കാണിച്ചുതരാം എന്നും നിന്റെ മകൻ ചട്ടുക്കാലൻ വീട്ടിൽ ഇല്ലേ നിന്റെ തന്ത കടുവമത്തായി അല്ലേ" എന്ന് വിളിച്ച് തടഞ്ഞുനിർത്തി അധിക്ഷേപിക്കുകയും ചെയ്യുകയും ഭീഷണിപ്പെടുത്തുകയും ചെയ്തു........."
5. The question to be decided is whether the offences under Sections 341, 294(b) and 506 of the Indian Penal Code is made out in the in this facts and circumstances.
2024:KER:88228 CRL.MC NO.7906 OF 2019 5
6. I will consider the offence under Section 294(b) IPC first. The ingredients of Section 294(b) of the Indian Penal Code is considered by this Court and the Apex Court in several decisions.
7. The Apex Court in Apoorva Arora v. State (Govt. Of NCT of Delhi) [2024 KHC Online 6153] considered the meaning of obscenity. It will be better to extract the relevant portion of the above judgment.
"34. From a plain reading of Section 67 and the material that is characterised as 'obscene' therein, it is clear that the High Court posed the wrong question, and it has naturally arrived at a wrong answer. At the outset, the enquiry under Section 292 of the IPC or under Section 67 of the IT Act does not hinge on whether the language or words are decent, or whether they are commonly used in the country. Rather, from the plain language of the provision, the inquiry is to determine whether the content is lascivious, appeals to prurient interests, or tends to deprave and corrupt the minds of those in whose hands it is likely to fall. The High Court embarked on a wrong journey and arrived at the wrong destination.
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35. Profanity is not per se obscene: The second threshold error is in the finding of the High Court that the language is full of swear words, profanities, and vulgar expletives that could not be heard in open court and also that it is not the language of the youth. Based on this finding, the High Court has held that the content is obscene as it "will affect and will tend to deprave and corrupt impressionable minds". In its own words, the High Court held:
"30. ...this Court found that the actors/protagonists in the web series are not using the language used in our country i.e. civil language. The Court not only found excessive use of "swear words", "profane language" and "vulgar expletives" being used, it rather found that the web series had a series of such words in one sentence with few Hindi sentences here and there. In the episode in question, there is clear description and reference to a sexually explicit act. The Court had to watch the episodes with the aid of earphones, in the chamber, as the profanity of language used was of the extent that it could not have been heard without shocking or alarming the people around and keeping in mind the decorum of language which is maintained by a common prudent man whether in professional or public 2024:KER:88228 CRL.MC NO.7906 OF 2019 7 domain or even with family members at home. Most certainly, this Court notes that this is not the language that nation's youth or otherwise citizens of this country use, and this language cannot be called the frequently spoken language used in our country.
36. When the entire content of the series is seen in the light of above, it would lead any common person to a conclusion that the language used in the web series is foul, indecent and profane to the extent that it will affect and will tend to deprave and corrupt impressionable minds. Therefore, on the basis of this finding it can be held that the content of the web series will certainly attract the criminality as envisaged under Section 67 of the Information Technology Act."
(emphasis supplied) The specific material which the High Court found to be obscene, i.e., that which tends to deprave and corrupt impressionable minds, was "foul, indecent and profane"
language. Nothing more. The High Court has equated profanities and vulgarity with obscenity, without undertaking a proper or detailed analysis into how such language, by itself, could be sexual, lascivious, prurient, or depraving and corrupting. It is well-established from the precedents cited that vulgarity and profanities do not per 2024:KER:88228 CRL.MC NO.7906 OF 2019 8 se amount to obscenity. While a person may find vulgar and expletive-filled language to be distasteful, unpalatable, uncivil, and improper, that by itself is not sufficient to be 'obscene'. Obscenity relates to material that arouses sexual and lustful thoughts, which is not at all the effect of the abusive language or profanities that have been employed in the episode. Rather, such language may evoke disgust, revulsion, or shock. The reality of the High Court's finding is that once it found the language to be profane and vulgar, it has in fact moved away from the requirements of obscenity under Section 67 of the IT Act. The High Court failed to notice the inherent contradiction in its conclusions.
8. In Sangeetha Lakshmana v. State of Kerala [2008 (1) KHC 812], this Court also considered the meaning of obscenity. It will be better to extract the relevant portion of the above judgment:
"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 2024:KER:88228 CRL.MC NO.7906 OF 2019 9 the bank for taking possession of the flat. As a matter of fact, as per Annexure B proceedings of the Debts Recovery Tribunal dated 12/07/2006 all proceedings pursuant to the possession notice dated 07/07/2006 issued by the bank were stayed till 17/08/2006. There is no dispute that the order of the Debts Recovery Tribunal was passed in the morning of 12/07/2006. 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 (a public servant) was deterred by the petitioner from discharging his official duties. Such being the position, allowing the above CC Case to proceed further will amount to abuse of the process of the Court. Accordingly, all proceedings in CC 293 of 2006 on the file of the Chief Judicial Magistrate, Ernakulam is quashed."
9. In Latheef v. State of Kerala [2014 (2) KHC 604], this Court again considered the ingredients to attract Section 294(b) IPC. It will be better to extract the relevant portion of the above judgment:
"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 2024:KER:88228 CRL.MC NO.7906 OF 2019 10 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 Lakshmana v. State of Kerala reported in 2008 (1) KHC 812 : 2008 (2) KLT 745 : 2008 (1) KLD 339 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 2024:KER:88228 CRL.MC NO.7906 OF 2019 11 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."
(underline supplied)
10. In the light of the above dictum, this Court perused the First Information Statement of the defacto complainant and also the final report. According to me, even if the words used by the defacto complainant are accepted in toto, the offence under Section 294(b) of the Indian Penal Code is not made out in the light of the above dictum laid down by this Court and Apex Court.
2024:KER:88228 CRL.MC NO.7906 OF 2019 12
11. The other offence alleged is Section 506(i) of the Indian Penal Code. The ingredients of Section 506(i) of the Indian Penal Code is considered by Apex Court in several decisions.
12. The Apex Court considered the ingredients of the Section 506(i) of the Indian Penal Code in detail in Manik Taneja and anr. v. State of Karnataka and anr. [2015 KHC 4046]. The relevant portion of the above judgment is extracted hereunder:
"13. S.506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation"
as defined in S.503 IPC is as under:
"503. Criminal Intimidation.-- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.-- A threat to injure the reputation of any deceased person in whom the person threatened is 2024:KER:88228 CRL.MC NO.7906 OF 2019 13 interested, is within this section."
14. A reading of the definition of "Criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.
15. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "Criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the minds of the second 2024:KER:88228 CRL.MC NO.7906 OF 2019 14 respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in S.503 IPC."
(underline supplied)
13. In the light of the above dictum, this Court considered the allegation in the first information report and the final report. I am of the considered opinion that, even if the entire allegations are accepted, the offence under Section 506(i) of the Indian Penal Code is also not made out.
14. The other offence alleged is under Section 341 of the Indian Penal Code. Section 341 of the Indian Penal Code deals about the punishment for the wrongful restraint. Section 339 of the Indian Penal Code defines wrongful restraint. Section 339 says that whoever, voluntarily obstructs so as to prevent that person from proceeding in any direction in which, that person has a right to proceed, is said wrongfully to restrained that person. In the First Information Statement 2024:KER:88228 CRL.MC NO.7906 OF 2019 15 and in the final report, it is only stated that the accused restrained the defacto complainant and thereafter committed the offences under Sections 294(b) and 506(i) of the Indian Penal Code. This Court already found that the offences under Sections 294(b) and 506(i) of the Indian Penal Code is not made out. If that is the case, I am of the considered opinion that Section 341 of the Indian Penal Code alone will not stand, because, there is no case to the prosecution that the defacto complainant was proceeding in any direction in which he has a right to proceed and the petitioner restrained him at that time. In such circumstances, according to me, the offence under Section 341 of the Indian Penal Code is also not made out.
15. The upshot of the above discussion is that, the continuation of the prosecution against the petitioner is not necessary.
Therefore this Crl.M.C is allowed. All further proceedings against the petitioner in CC No.194/2019 on the 2024:KER:88228 CRL.MC NO.7906 OF 2019 16 files of Judicial First Class Magistrate Court-I, Thodupuzha, arising from Crime No.10/2019 of Karimannoor Police Station, are quashed.
Sd/-
P.V.KUNHIKRISHNAN JUDGE SSG/MSA 2024:KER:88228 CRL.MC NO.7906 OF 2019 17 APPENDIX OF CRL.MC 7906/2019 PETITIONER'S ANNEXURES Annexure A1 A TRUE COPY OF THE COMPLAINT DATED 31.12.2018 Annexure A2 CERTIFIED COPY OF THE FIR NO 10/2019 DATED 5.1.2019 OF KARIMANNOOR POLICE STATION Annexure A3 A TRUE COPY OF THE 161 STATEMENT OF THE CW1 Annexure A4 A TRUE COPY OF THE 161 STATEMENT OF THE CW2 Annexure A5 A TRUE COPY OF THE 161 STATEMENT OF THE CW3 Annexure A6 A TRUE COPY OF THE 161 STATEMENT OF THE CW4 Annexure A7 A TRUE COPY OF THE SCENE MAHAZAR Annexure A8 CERTIFIED COPY OF THE FINAL REPORT FILED IN C.C NO 194/2019 ON THE FILES OF THE JFMC I THODUPUZHA