Kerala High Court
Muhammed vs State Of Kerala on 30 October, 2024
Author: P.V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
2024:KER:80995
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
CRL.MC NO. 1977 OF 2019
CRIME NO.176/2014 OF THIRURANGADI POLICE STATION, MALAPPURAM
AGAINST THE ORDER DATED IN CC NO.1287 OF 2014 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -II, PARAPPANANGADI
PETITIONER/ACCUSED:
MUHAMMED
AGED 60 YEARS
S/O.ABULLAKUTTY, KUTTIRAYIN MARAKKARAKATH,
A.R.NAGAR, MALAPPURAM DISTRICT.
PIN- 682 012
BY ADV
K.MOHANAKANNAN
RESPONDENTS/STATE & RESPONDENT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HON'BLE HIGH
COURT OF KERALA, ERNAKULAM-682 012.
2 LATHA
AGED 46 YEARS
W/O.GIRISH @ MANI, CHETTITHODI HOUSE, TIRURANGADI
PO, CHEMMAD, MALAPPURAM DISTRICT
PIN-6763 06.
2024:KER:80995
CRL.MC NO.1977 OF 2019
2
OTHER PRESENT:
SRI.RENJITH.T.R, SR.PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 30.10.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
2024:KER:80995
CRL.MC NO.1977 OF 2019
3
P.V. KUNHIKRISHNAN, J.
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Crl.MC No.1977 OF 2019
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Dated this the 30th day of October, 2024
ORDER
The petitioner is the accused in CC No.1287/2014 on the files of Judicial First Class Magistrate Court, Parappanangadi, arising from Crime No.176/2014 of Tirurangadi Police Station. The above case is charge sheeted alleging offences under Section 354-D(1)(ii) and 294(b).
2. The allegation against the petitioner is that on 29.12.2013, while the defacto complainant was in a marriage house near his house, the accused stared her and on 28.01.2014 again he has done the very same thing and spit out on the floor and shown indecent gestures and also uttered abusive words.
Hence, it is alleged that the accused committed the offence. Annexure-A1 is the complaint. On basis of Annexure-A1, the first information report was 2024:KER:80995 CRL.MC NO.1977 OF 2019 4 registered. Annexure-A2 is the final report.
3. According to the petitioner, even if the entire allegations are accepted, no offence is made out as alleged. Hence, this Crl.M.C.
4. Heard counsel for the petitioner and the Public Prosecutor.
5. Eventhough, the notice was issued to the 2nd respondent, who is the defacto complainant and she received notice, she refused to appear before this Court.
6. The counsel for the petitioner submitted that the complaint is filed with malafide intention. It is submitted that petitioner's wife namely Mymoonath had occasion to file a complaint against the husband of the 2nd respondent and her husband for trespass into their house and for using abusive words. Annexure-A3 is the complaint.
Annexure-A3 was submitted on 07.11.2013 and an investigation was conducted by the police, and 2nd 2024:KER:80995 CRL.MC NO.1977 OF 2019 5 respondent and her husband was summoned by the police. Thereafter, the present complaint is filed is the submission. According to the petitioner, even if the entire allegations, in Annexures-A1 and A2 are accepted, no offence is made out. The Public Prosecutor submitted that the contentions raised by the petitioner are all matters of evidence, and the same is to raised before the trial court.
7. This Court perused Annexures-A1 and A2. A perusal of Annexure-A1 would show that according to 2nd respondent, her husband and the petitioner are on inimical terms and whenever she go for her work, the petitioner used to use abusive words and wrong gestures. It is also stated that, the petitioner used to stare at her and even used to spit out to the floor. It is also stated that the petitioner filed false complaint against the 2nd respondent. Therefore, it is alleged that the accused committed the offence. The alleged abusive 2024:KER:80995 CRL.MC NO.1977 OF 2019 6 words used by the petitioner is not stated in complaint or final report. The first offence alleged is under Section 354-D(1)(ii). Section 354-D(1)(ii) says that any man, who monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking. Even if the entire allegations in Annexures-A1 and A2 are accepted, there is no such allegation against the petitioner. Therefore, I am of the considered opinion that the offence under Section 354-D(1)(ii) of the Indian Penal Code is not attracted.
8. The other offence is under Section 294(b) of the Indian Penal Code. As I mentioned earlier, the alleged abusive words, used by the petitioner is not mentioned either in Annexure-A1 or in Annexure-A2 final report. The ingredients of Section 294(b) is considered by this Court and Apex Court.
2024:KER:80995 CRL.MC NO.1977 OF 2019 7
9. 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.
35. Profanity is not per se obscene:
The second threshold error is in the 2024:KER:80995 CRL.MC NO.1977 OF 2019 8 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 2024:KER:80995 CRL.MC NO.1977 OF 2019 9 people around and keeping in mind the decorum of language which is maintained by a common prudent man whether in professional or public 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 2024:KER:80995 CRL.MC NO.1977 OF 2019 10 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 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 2024:KER:80995 CRL.MC NO.1977 OF 2019 11 the inherent contradiction in its conclusions.
10. 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 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 2024:KER:80995 CRL.MC NO.1977 OF 2019 12 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."
11. 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.
2024:KER:80995 CRL.MC NO.1977 OF 2019 13 "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 Lakshmana v. State of Kerala reported in 2008 (1) KHC 812 : 2008 (2) KLT 2024:KER:80995 CRL.MC NO.1977 OF 2019 14 745 : 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 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 2024:KER:80995 CRL.MC NO.1977 OF 2019 15 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)
12. In the light of the above principle, I am of the considered opinion that the offence under Section 294(b) is also not attracted. The upshot of the above discussion is that no offence is made out even if the entire allegations in Annexure-A1 and Annexure-A2 are accepted.
Therefore, this Crl.M.C is allowed. All further proceedings against the petitioner in CC No.1287/2014 on the files of Judicial First Class Magistrate Court, Parappanangadi, arising from Crime 2024:KER:80995 CRL.MC NO.1977 OF 2019 16 No.176/2014 of Tirurangadi Police Station, are quashed.
Sd/-
P.V.KUNHIKRISHNAN JUDGE SSG 2024:KER:80995 CRL.MC NO.1977 OF 2019 17 APPENDIX OF CRL.MC 1977/2019 PETITIONER'S ANNEXURES ANNEXURE A1 TRUE COPY OF THE COMPLAINT DATED 29/01/2014 FILED BY THE 2ND RESPONDENT BEFORE THE CIRCLE INSPECTOR OF POLICE, TIRURANGADI.
ANNEXURE A2 TRUE COPY OF THE FINAL REPORT IN CRIME NO.176/2014 OF TIRURANGADI POLICE STATION.
ANNEXURE A3 TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE SUB INSPECTOR OF POLICE TIRURANGADI DATED NIL