Kerala High Court
Rajesh vs State Of Kerala on 16 September, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942
Crl.MC.No.2551 OF 2020(H)
AGAINST THE FINAL REPORT IN CC 491/2017 ON THE FILE OF JUDICIAL
MAGISTRATE OF FIRST CLASS,VAIKOM NOW PENDING BEFORE GRAMA
NYAYALAYA, VAIKOM IN C.C.NO.84/2019
CRIME NO.527/2017 OF THALAYOLAPARAMBU POLICE STATION, KOTTAYAM
PETITIONERS/ACCUSED 1 & 2:
1 RAJESH,
S/O.MARIYAPPAN, POTHRAYIL HOUSE, BRAHMAMANGALAM,
CHEMBU VILLAGE, CHEMBU P.O., PIN - 686 608.
2 REJI,
S/O.MARIYAPPAN, POTHRAYIL HOUSE, BRAHMAMANGALAM,
CHEMBU VILLAGE, CHEMBU P.O., PIN - 686 608.
BY ADVS.
SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
RESPONDENTS/STATE/DEFACTO COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.
2 STATION HOUSE OFFICER,
THALAYOLAPARAMBU POLICE STATION, (DISTRICT) KOTTAYAM,
PIN - 686 605.
3 OMANA,
W/O.PURUSHAN, MATTATHIL HOUSE, BRAHMAMANGALAM,
CHEMBU VILLAGE, CHEMBU P.O., PIN - 686 608.
SRI.B.JAYASURYA, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
16.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.2551 of 2020
2
ALEXANDER THOMAS, J.
===========================
Crl.M.C.No.2551 of 2020
===========================
Dated this the 16th day of September, 2020
ORDER
The prayer in the above Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C is as follows :
".................to call for the records in CC No.491/17 on the file of JFCM Vaikom, now pending before Grama Nyayalaya, Vaikom in C.C.No.84/2019 and to quash the same."
2. Heard Sri.George Cherian, learned Senior Counsel instructed by Smt.K.S.Santhi, learned counsel appearing for the petitioners and Sri.B.Jayasurya, learned Public Prosecutor appearing for respondent Nos.1 & 2. Though contesting respondent No.3 has been duly served, the said party has not entered appearance.
3. The petitioners herein have been arrayed as accused Nos.1 & 2 among the two accused in the instant impugned Annexure-1 FIR in Crime No.527/2017 of Thalayolaparambu Police Station, Kottayam District, for offences punishable under Secs.447, 294(b) & 506 read with Sec.34 of the Indian Penal Code on the basis of the First Information Statement furnished by the 3rd respondent (lady de facto complainant) on 30.03.2017 Crl.M.C.No.2551 of 2020 3 in respect of the alleged incidents which happened on the same day. The police after investigation has filed the impugned Annexure-2 final report/charge sheet in the said crime, which has now led to the pendency of calendar case C.C.No.491/2017 on the file of the Judicial First Class Magistrate's Court, Vaikom. The case was later transferred from the said Magistrate's Court to the Grama Nyayalaya, Vaikom, where it is now pending as calendar case C.C.No.84/2019. The petitioners have raised various contentions for quashment of the impugned criminal proceedings.
4. However, after hearing both sides, this Court is of the considered view that the offence as per Sec.294(b) of the IPC will not lie in the instant case even going by the admitted prosecution allegations. The main allegations raised by the 2nd respondent in the impugned criminal proceedings as against the petitioners in regard to the alleged offence as per Sec.294(b) of the IPC is that at the time of the incident, the petitioners have used extremely abusive and vulgar language to the 3 rd respondent and that thereby they have committed the abovesaid offence as per Sec.294(b) of the IPC.
5. It has been held by this Court in a series of decisions 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 Crl.M.C.No.2551 of 2020 4 v. Nainan Chacko [1967 KLT 799] that abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined in Sec.292 of the IPC and that even if the alleged words used by the accused are abusive and humiliating, in order to make such words obscene punishable under Sec.294(b) of the IPC, it must necessarily satisfy the definition of obscenity as per Sec.292 of the IPC and that to make punishable the alleged words, the same must be in a sense lascivious, or it must appeal to the prurient interest or will deprave and corrupt the hearers, etc. It is now well established that to make the alleged words obscene, the same must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons and defining morals by sex appeal or lustful desires. It will be profitable to refer to paragraph No.5 of the judgment of this Court in Latheef v. State of Kerala [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 Crl.M.C.No.2551 of 2020 5 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."
6. In the light of these well settled legal position, there cannot be any doubt that even if the allegations raised in the impugned criminal proceedings that the petitioners have in fact used such abusive, humiliating and vulgar words, as alleged by the 3 rd respondent therein, still the same will not constitute the offence as per Sec.294(b) of the IPC. It cannot be said that the said alleged words mentioned therein has been made in a lascivious sense or that it will appeal to the prurient interest or will deprave and corrupt the persons or that it will involve some lascivious elements arousing impure sexual thoughts or feelings in the mind of the hearers or the words must have the effect of depraving persons and defining morals by Crl.M.C.No.2551 of 2020 6 sex appeal or lustful desires on the persons who hear such words, etc.
7. Hence, it is only to be held that the initiation and continuance of the impugned criminal proceedings for the offence as per Sec.294(b) of the IPC will have to be interdicted by resort to the extraordinary powers conferred under Sec.482 of the Cr.P.C. This Court is not inclined to consider and grant the plea of the petitioners for quashment of the impugned criminal proceedings to the extent it involves other offences as per Secs.447, 506(1) & 34 of the IPC.
8. The learned Senior Counsel appearing for the petitioners would point out that the 2nd petitioner has a job offer in a foreign country and that prolonged continuance of the impugned criminal proceedings will detrimentally affect his future and that this Court may direct the trial court to complete the trial in respect of the other offences, without any further delay and within a reasonable time limit that may be stipulated by this Court. Further, the learned counsel appearing for the petitioners would submit that this Court may also facilitate mediation of the disputes between the petitioners and the 3rd respondent in respect of the matters arising in the impugned criminal proceedings, as the parties are neighbours and that the sincere mediatory effort may be successful to iron out the differences between the parties and as the offences are otherwise Crl.M.C.No.2551 of 2020 7 quashable on the ground of settlement.
9. As per the directions of this Court, the Grama Nyayalaya, Vaikom has now given a report as per letter dated 16.09.2020, in which it has been inter alia stated that after transferring of the case from JFCM-I, Vaikom to the Grama Nyayalaya, Vaikom, the accused have not appeared so far and fresh summons was ordered to both the accused and since lock down and the other safety measures are being observed, the case is being adjourned by notification and that if this Court so directs, then the case could be finally disposed of within six months, etc.
10. The learned Senior Counsel appearing for the petitioners would submit that as already averred in paragraph No.5 of this Crl.M.C, both the petitioners have already secured bail, when the case was earlier pending as C.C.No.84/2019 on the file of the Judicial First Class Magistrate's Court, Vaikom, etc.
11. Having regard to the abovesaid aspects, the following directions and orders are passed :
(i) The impugned Annexure-2 final report/charge sheet filed in Crime No.527/2017 of Thalayolaparambu Police Station, which led to the pendency of calendar case C.C.No.84/2019 on the file of the Grama Nyayalaya, Vaikom to the extent it is directed Crl.M.C.No.2551 of 2020 8 as against the petitioners herein for the offence as per Sec.294(b) of the IPC and all proceedings emanating therefrom as against the petitioners to the extent it is directed against them for the said offence as per Sec.294(b) of the IPC will stand quashed and set aside.
(ii) The petitioners may immediately enter appearance before the Grama Nyayalaya, without much delay and the Gram Nyayalaya will issue notices to both the petitioners as well as to the 3rd respondent and the parties may be referred to the nearest mediation centre. The Mediation Centre may take all reasonable endeavours possible under the circumstances to ensure that the mediation process is commenced and finalized,without much delay, preferably within a period of two months from the date of reference to the Mediation Centre by the court below concerned.
(iii) On finalizing the mediation process, the Mediator/Mediation Centre will give a report on the final outcome of the mediation process as well as copy of the memorandum of mediation settlement agreement, if so arrived at between the parties to the Gram Nyayalaya, Vaikom, who is dealing with C.C.No.84/2019 as well as to the Registry of this Court, who may keep the same in this case file. Needless to say, copies of the same should also be Crl.M.C.No.2551 of 2020 9 given by the Mediation Centre/Mediator to both the petitioners as well as the 3rd respondent. If the mediation process is successful, it will be open to the petitioners to seek for appropriate relief in appropriate proceedings, in the manner known to law. If the mediation process if not successful, then the Grama Nyayalaya, Vaikom will ensure that the trial in C.C.No.84/2019 for the other offences concerned, shall be duly completed, without much delay, preferably within an outer time limit of six months from the date of receipt of a certified copy of this order. The further proceedings in C.C.No.84/2019 on the file of the Grama Nyayalaya, Vaikom shall be kept in abeyance for the period during which the matter is under the consideration of the Mediation Centre, as aforestated.
12. The Registry will forward a certified copy of this order to the Grama Nyayalaya, Vaikom, who is dealing with C.C.No.84/2019, for necessary information, at the cost of the petitioners.
With these observations and directions, the above Crl.Miscellaneous case will stand disposed of.
Sd/-
ALEXANDER THOMAS JUDGE vgd Crl.M.C.No.2551 of 2020 10 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE 1 TRUE COPY OF THE FIR NO.527/17 OF
THALAYOLAPARAMBU POLICE STATION.
ANNEXURE 2 TRUE COPY OF FINAL REPORT IN CRIME
NO.527/17 OF THALAYOLAPARAMBU POLICE
STATION.