Kerala High Court
Athul vs State Of Kerala on 8 November, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.MC NO. 6810 OF 2019 1
2024:KER:84705
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
CRL.MC NO. 6810 OF 2019
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.650 OF 2018 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -I,PALAKKAD
PETITIONER/S:
1 ATHUL
AGED 24 YEARS
S/O. VISWAMBARAN, VISHVALAYAM HOSUE, KADAMBANAD,
PATHANAMTHITTA DISTRICT.
2 DEEPAK
AGED 24 YEARS
S/O.MURALI, HARISREE HOUSE, OLAVAKKOD RAILWAY
COLONY, OLAVAKKOD P.O., PALAKAKD DISTRICT.
3 AKTHAR
AGED 25 YEARS
S/O. NAZEER, AISWARYA HOUSE, NEAR CIVIL STATION,
CHULLIYODU ROAD, KOZHIKODE DISTRICT.
4 NOYIS
AGED 25 YEARS
S/O. THOMAS, PADINJAREMURI HOUSE, PUTHANPALLIKUNNU,
PALA, KOTTAYAM DISTRICT.
5 SUJEESH
AGED 26 YEARS
S/O. SREEDHARAN, FARGA MANZIL, EDAPPALLI NORTH,
ERNAKULAM DISTRICT.
6 ANAL
AGED 26 YEARS
S/O. SYRIAC, VILANGUPATTA HOUSE, NEAR PERAMBRA,
CRL.MC NO. 6810 OF 2019 2
2024:KER:84705
PERAMBRA, KOZHIKODE DISTRICT.
BY ADV C.DHEERAJ RAJAN
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA.
OTHER PRESENT:
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
08.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 6810 OF 2019 3
2024:KER:84705
P.V.KUNHIKRISHNAN, J
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Crl.M.C. No. 6810 of 2019
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Dated this the 8th day of November, 2024
ORDER
This Criminal Miscellaneous case is filed to quash the proceedings based on Annexure-A2 final report. The petitioners are the accused in CC No.1140/2015 on the file of the Judicial First Class Magistrate Court-I, Thiruvananthapuram. The above case is charge-sheeted against the petitioners alleging offences punishable under Secs.143, 147, 294(b), 353, 506(ii) r/w 149 IPC.
2. The prosecution case is that on 04.02.2015 at about 1 pm, the petitioners along with 19 others formed themselves into an unlawful assembly and obstructed the jeep travelled by GSI Sunilkumar and other police officials and thereafter, showered obscene words and threatened them with death. On the basis of the same, Crime No.112/2015 was CRL.MC NO. 6810 OF 2019 4 2024:KER:84705 registered by Sreekaryam Police Station as evident by Annexure-A1. Subsequently, the final report was filed as evident by Annexure-A2. According to the petitioners, even if the entire allegations are accepted, no offence is made out against the petitioners. Hence, this Criminal Miscellaneous case.
3. Heard the learned counsel for the petitioners and the learned Public Prosecutor.
4. The main offence alleged against the petitioners are under Secs. 294(b), 353 and 506 (ii) IPC. The allegation in Annexure-A2 final report against the petitioners are extracted hereunder :
"ഔദദദദ്യോഗഗിക കൃതദ നഗിർവഹണതഗിനന് തടസസ്സം ദനരഗിടുവഗിപഗിക്കണമമെന്നുള ഉദദ്ദേശദതദ്യോടുസ്സം കരുതദലദ്യോടുസ്സം കൂടഗി പ്രതഗികൾ നദദ്യോയ വഗിദരദ്യോധമെദ്യോയഗി സസ്സംഘസ്സം ദചേർനന് അവരുമട മപദ്യോതു ഉദദ്ദേശകദ്യോരദസദ്യോധദതഗിനുമെദ്യോയഗി ആദലദ്യോചേഗിച്ചുറചന് പ്രതഗികൾ ഓദരദ്യോരുതരുസ്സം ടഗി സസ്സംഘതഗിമല അസ്സംഗസ്സം ആമണന്നുള അറഗിദവദ്യോടുകൂടഗി 4.2.15 തതീയതഗി ഉചയന് 13 മെണഗിക്കന് മചേറുവക്കൽ വഗിദല്ലേജഗിൽ മചേറുവക്കൽ വദ്യോർഡഗിൽ ചേരുവടഗി മുക്കന് ടഗി ദറദ്യോഡഗിൽ കഗിഴക്കന് എൻജഗിനതീയറഗിങന് ദകദ്യോദളേജന് ഇടദറദ്യോഡഗിൽ ടഗി ഇടദറദ്യോഡഗിനന് കഗിഴക്കുവശസ്സം സഗിതഗി മചേയ്യുന എൻജഗിനതീയറഗിങന് ദകദ്യോദളേജന് മമെൻസന് ദഹദ്യോസ്റ്റൽ മകടഗിടതഗിമന്റെ പടഗിഞദ്യോറന് വശസ്സം ദകദ്യോമമ്പൗണന് മെതഗിലഗിമന്റെ മതക്കുവശസ്സം ദഗറഗിമന്റെ വടക്കന് പടഗിഞദ്യോദറ മൂലച്ചുവടഗിൽ നഗിന്നുസ്സം എടന് മെതീറർ മതക്കുപടഗിഞദ്യോറു മെദ്യോറഗിയസ്സം ടതീ ദറദ്യോഡഗിനന് വടക്കുവശസ്സം ദറദ്യോഡന് മെദ്യോർജതീനഗിൽ സഗിതഗി മചേയ്യുന നമർ ഇല്ലേദ്യോത ദകദ്യോൺകതീറന് ദപദ്യോസ്റ്റന് ചുവടഗിൽ നഗിന്നുസ്സം 6 മെതീറർ ദനമര മതക്കന് മെദ്യോറഗിയസ്സം ടതീ ദറദ്യോഡഗിൻമറ മതക്കുവശസ്സം ദറദ്യോഡന് മെദ്യോർജഗിനഗിൽ സഗിതഗിമചേയ്യുന 8/EC/12 നമർ ദകദ്യോൺകതീറന് ദപദ്യോസ്റ്റഗിമന്റെ ചുവടഗിൽ CRL.MC NO. 6810 OF 2019 5 2024:KER:84705 നഗിന്നുസ്സം 10 മെതീറർ ദനമര പടഗിഞദ്യോറന് മെദ്യോറഗിയള ടദ്യോറഗിട ദറദ്യോഡഗിൽ ദസ്റ്റഷൻ വക ജതീപഗിൽ സഞ്ചരഗിച്ചു വന 6 മുതൽ 9 വമര കകഗികൾ 1 മുതൽ 6 വമര പ്രതഗികളസ്സം മെറ്റു കണദ്യോൽ അറഗിയദ്യോവുന 19 പ്രതഗികളസ്സം ദചേർനന് ജതീപന് തടഞ്ഞു നഗിർതഗിയഗിടന് "തദളദയദ്യോളേഗി പൂതചഗി മമെരനദ്യോമര നഗിങ്ങൾക്കഗിവഗിമട എനദ്യോടദ്യോ കദ്യോരദസ്സം കദ്യോരദസ്സം " എനന് അസഭദസ്സം വഗിളേഗിച്ചുമകദ്യോണന് "ഞങ്ങദളേദ്യോടന് കളേഗിചദ്യോൽ നഗിൻമറമയദ്യോമക്ക കദ്യോൽ മവടഗിമയടുക്കുമമെടദ്യോ" എനന് വധഭതീഷണഗി മുഴക്കഗി 6 മുതൽ 9 വമര കകഗികളമട തുടർന്നുള ഔദദദദ്യോഗഗിക കൃതദനഗിർവഹണതഗിനന് തടസസ്സം ദനരഗിടുവഗിപഗിച്ചുസ്സം പ്രതഗികൾ കൃതദതഗിനന് ഭദ്യോഗഭദ്യോക്കദ്യോയഗി പ്രവർതഗിചന് ദമെൽ വകപകൾ പ്രകദ്യോരമുള കറസ്സം മചേയഗിരഗിക്കുന്നു എന്നുളതന് ."
5. The first offence alleged against the petitioners is under Sec.294(b) IPC. The ingredients to attract Sec.294(b) is considered by this Court and the Apex Court in several decisions. 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 CRL.MC NO. 6810 OF 2019 6 2024:KER:84705 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 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 CRL.MC NO. 6810 OF 2019 7 2024:KER:84705 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 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 CRL.MC NO. 6810 OF 2019 8 2024:KER:84705 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.
6. 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 CRL.MC NO. 6810 OF 2019 9 2024:KER:84705 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."
7. 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 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 CRL.MC NO. 6810 OF 2019 10 2024:KER:84705 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 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 CRL.MC NO. 6810 OF 2019 11 2024:KER:84705 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)
8. In the light of the above principle, I am of the considered opinion that even if the entire allegations are accepted, no offence under Sec.294(b) is attracted.
9. The other offence alleged is under Sec. 506 (ii) IPC. As far as Sec. 506 is concerned, the Apex Court considered the matter 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 CRL.MC NO. 6810 OF 2019 12 2024:KER:84705 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 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 CRL.MC NO. 6810 OF 2019 13 2024:KER:84705 appellants to cause alarm in the minds of the second 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)
10. Keeping in mind the above principle laid down by the Apex Court, this Court perused the final report. I am of the considered opinion that no offence is made out against the petitioners under Sec.506 (ii) IPC.
11. The other offence alleged is under Sec. 353 IPC. Section 353 IPC is extracted hereunder:
"353. Assault or criminal force to deter public servant from discharge of his duty.-- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
12. To attract the offence under Section 353 IPC, CRL.MC NO. 6810 OF 2019 14 2024:KER:84705 assault or criminal force is necessary. Criminal force is defined in Section 350 IPC, which is extracted hereunder:
"350. Criminal force.--Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other."
13. Force is defined in Section 349 IPC. The same is also extracted hereunder :
"349. Force.--A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling : Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described: First.--By his own bodily power. Secondly.--By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person. Thirdly.--By inducing any animal to move, to change its motion, or to cease to move."CRL.MC NO. 6810 OF 2019 15
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14. Even if the entire allegations in the final report are accepted, there is no criminal force used by the petitioners.
15. Assault is defined in Section 351 IPC. Section 351 IPC is extracted hereunder:
"351. Assault.--Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation.--Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault."
16. This Court anxiously considered the final report in the light of the assault stated in Section 351 IPC. I am of the considered opinion that there is no assault made out, even if the entire allegations in the final report are accepted.
17. A perusal of the final report would not show CRL.MC NO. 6810 OF 2019 16 2024:KER:84705 that the offence under Sec. 353 IPC is made out, because there is no assault or criminal force alleged by the prosecution. If the offences under Secs. 294(b), 353 and 506
(ii) IPC are not made, the continuation of the prosecution under Secs.143, 147 r/w 149 IPC will not stand.
18. The upshot of the above discussion is that the prosecution against the petitioners can be quashed.
Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioners in CC No. 1140/2015 on the file of the Judicial First Class Magistrate Court-I, Thiruvananthapuram arising from Crime No. 112/2015 of Sreekaryam Police Station are quashed.
Sd/-
P.V.KUNHIKRISHNAN JUDGE SKS CRL.MC NO. 6810 OF 2019 17 2024:KER:84705 APPENDIX OF CRL.MC 6810/2019 PETITIONER ANNEXURES ANNEXURE A1 THE TRUE COPY OF THE FIR IN CRIME 112/2015 OF SREEKARYAM POLICE STATION.
ANNEXURE A2 THE TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE POLICE AUTHORITY.
ANNEXURE A3 THE TRUE COPY OF THE ORDER DATED 30.5.2019 IN CRL.M.C. 2467/2019.