Madhya Pradesh High Court
Nikhil Juneja vs The State Of Madhya Pradesh on 30 April, 2024
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 30 th OF APRIL, 2024
MISC. CRIMINAL CASE No. 15863 of 2021
BETWEEN:-
1. NIKHIL JUNEJA S/O SHRI DR. NITIN JUNEJA,
AGED ABOUT 20 YEARS, OCCUPATION: STUDENT
AIIMS UG BOYS HOSTEL SAKET NAGAR BHOPAL
P.S. BAAG SEVANIYA DIST. BHOPAL MP (MADHYA
PRADESH)
2. RACHIT CHATURVEDI S/O SHRI DR. R.K
CHATURVEDI, AGED ABOUT 21 YEARS,
OCCUPATION: STUDENT AIIMS UG BOYS HOSTEL
SAKET NAGAR BHOPAL P.S. BAAG SEVANIYA
DIST. BHOPAL MP (MADHYA PRADESH)
3. TANISHQ AGRAWAL S/O SHRI RAJEEV AGRAWAL,
AGED ABOUT 20 YEARS, OCCUPATION: STUDENT
AIIMS UG BOYS HOSTEL SAKET NAGAR BHOPAL
P.S. BAAG SEVANIYA DIST. BHOPAL MP (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI ANIL KHARE-SR. ADVOCATE WITH MS. TANVI KHARE-
ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR. P.S. P.S.
BAAG SEVANIYA BHOPAL MP (MADHYA
PRADESH)
2. KOH E SAFA D/O MEHMOOD AHMED LANE NO. 3
MAKKA HILLS BADEDHI JAMMU NAD KASHMIR
INDIA TEMPORARILY MBBS GIRLS HOSTEL
AIIMS CAMPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI JITENDRA SHRIVASTAV-PANEL LAWYER )
This application coming on for admission this day, the court passed the
Signature Not Verified
Signed by: PREETI TIWARI
Signing time: 5/7/2024
2:51:42 PM
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following:
ORDER
The petitioners, who were student of All India Medical Science, Bhopal are facing criminal trial under Section 294/34 of the IPC registered upon a compliant of respondent no.2 at Police Station- Baagsevaniya, District-Bhopal vide Crime No.703/2020.
2. The notice of the present petition was issued to respondent no.2 but no one appeared on behalf of respondent no.2/complainant though served.
3. The respondent no.2/complainant lodged a complaint before the National Commission for Women on 15.1.2020 stating that in the morning of 27.11.2019, she received an e-mail which did not have much content but e-mail id was in her name and e-mail contents abusing language which was targeted her due to which she was traumatized and reported the same to the National Cyber Cell, however, when no action was taken by National Cyber Cell, she lodged a report against the petitioners and some other students of her class. The complainant/respondent no.2 and petitioners were students of MBBS and all were students of IIIrd year studying in All India Medical Science (AIMS), Bhopal. Upon complaint of respondent no.2, the Police registered a complaint and filed the charge-sheet.
4. Learned Sr. Counsel appearing on behalf of the petitioners submits that if the contents of FIR are taken as it is, even through no cognizable offence is made out prima facie. He further submits that offence has been registered under Section 294 of the IPC, however, ingredients of Section 294 of the IPC are not available and allegation is that the offenders used abusive language in the e-mail. There was no element of obscenity and in the absence of obscenity, no offence under Section 294 of the IPC is made out.
Signature Not Verified Signed by: PREETI TIWARI Signing time: 5/7/2024 2:51:42 PM 35. Learned Sr. Counsel relied upon by the judgment of Apex Court delivered in the matter of N.S.Madangopal & anr. Vs. K. Lalitha 2022 SCC OnLine SC 2030 wherein it was held that for the purpose of constituting an offence punishable under Section 294(b) of the IPC, mere utterance of obscene words are not sufficient but there must be a further proof to establish that it was for annoyance to the others and the same should be in or near a public place. Relevant paragraph of the judgment are as under:
7. Section 294(b) of the IPC talks about the obscene acts and songs. Section 294 of the IPC as a whole reads thus:
"294. Obscene acts and songs - Whoever, to the annoyance of others -(a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."
8. It is to be noted that the test of obscenity under Section 294(b) of the I.P.C. is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences. The following passage from the judgment authored by Justice K.K. Mathew (as his Lordship then was) reported in P.T. Chacko v. Nainan (1967 KLT 799) explains as follows:
"The only point argued was that the 1st accused has not committed an offence punishable under Section 294(b) IPC., by uttering the words above-mentioned. The courts below have held that the words uttered were obscene and the utterance caused annoyance to the public. I am not inclined to take this view. In the Queen v. Hick-lin, [L.R.] 3 Q.B. 360 at 371 Cockburn C.J. Laid down the test of 'obscenity' in these words:
"....... the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences" This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881. In Samuel Roth v. U.S.A., 354 US 476 (1957), Chief Justice Warren said that the test of 'obscenity' is the "substantial tendency to corrupt by arousing lustful desires". Mr. Justice Harlan observed that in order to be 'obscene' the matter must "tend to sexually impure thoughts". I do not think that the words uttered in this case have such a tendency. It may be that the words are defamatory of the Signature Not Verified Signed by: PREETI TIWARI Signing time: 5/7/2024 2:51:42 PM 4 complainant, but I do not think that the words are 'obscene' and the utterance would constitute an offence punishable under S. 294(b) IPC".
9. It has to be noted that in the instance case, the absence of words which will involve some lascivious elements arousing sexual thoughts or feelings or words cannot attract the offence under Section 294(b). None of the records disclose the alleged words used by the accused. It may not be the requirement of law to reproduce in all cases the entire obscene words if it is lengthy, but in the instant case, there is hardly anything on record. Mere abusive, humiliating or defamative words by itself cannot attract an offence under Section 294(b) IPC. To prove the offence under Section 294 of IPC mere utterance of obscence words are not sufficient but there must be a further proof to establish that it was to the annoyance of others, which is lacking in the case. No one has spoken about the obscene words, they felt annoyed and in the absence of legal evidence to show that the words uttered by the appellants accused annoyed others, it can not be said that the ingredients of the offence under Section 294 (b) of IPC is made out."
6. He further relied upon the judgment delivered by Coordinate Bench in M.Cr.C. No.19835/2017 (Prafulla Kumar Jaiswal Vs. State of M.P. & anr.) on 22.9.2023 wherein the Coordinate Bench has held that the using of abusive language and utterance of galigalauch are not sufficient for constituting an offence under Section 294 (b) of the IPC. The relevant paragraph of the judgment are as under:
"13. On a perusal of the complaint and statement of witnesses, it is apparent the entire allegations against the applicant is that on the basis of exhortation by one Subhash Chandra, Praful Jaiswal and others had intention to cause voluntarily hurt and had abused them and had also extended threat to damage the camera. Thus, a look of the complaint makes it clear that applicant and others abused and were having intention to cause voluntary hurt and had also threatened to damage the camera. Section 294 of IPC talks about the obscene acts and songs. Section 294 of IPC reads as under:
"294. Obscene acts and songs - Whoever, to the annoyance of others
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(a) does any obscene act in any public place, or Signed by: PREETI TIWARI Signing time: 5/7/2024 2:51:42 PM 5
(b) sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."
14. The essential ingredients for an offence under Section 294 of IPC are:
(i) An obscene act must have been done in a public place.
(ii) The act of song or ballad or words were obscene.
(iii) The acts done by the accused causing annoyance to others.
15. In his statement recorded under Section 161 of Cr.P.C, Kailash Tamrakar stated that " फुल कुमार ग दी ग दी गाली गलोच करने लगा" and Roop Kumar Harbol stated that " फुल कुमार अभ ता एवं गली गु तार माँ बहन का िकया"
16. These two witnesses in their statement recorded under Section 161 of Cr.P.C have nowhere stated that any word stated by Praful Kumar caused any annoyance to both of them and others. Causing of annoyance to others is a sine qua non for commission of offence under Section 294 of IPC. In Om Prakash Vs. State of M.P., reported in 1989 (5)(cri.) 589 it is held that mere platitudinous utterances signifying the enraged state of person's mind would not be sufficient to attract Section 294 of IPC.
17. It has to be noted that in the case on hand, the absence of allegations of annoyance and alleged stated words to be obscene words cannot attract the charge under Section 294 of IPC. As it is not clear that as to what obscene words were stated by the applicant mere saying that "गाली गलोच क " is not sufficient to attract rigor of Section 294 of IPC. In case of N.S. Madhanagopal and Another Vs. K. Lalitha, reported in 2022 SC OnLine SC 2030 Hon'ble Apex Court held as under:
"that mere abusive, humilating or defamative words by itself cannot attract an offence under Section 294(b) of IPC. To prove the offence under Section 294 of IPC mere utterance of obscene words are not sufficient but there must be a further proof to establish that it was to the annoyance of others, which is lacking in the case. No one has spoken about the obscene words, they felt annoyed and in the absence of legal evidence to show that words uttered by the applicants/accused annoyed others, it cannot be said that the Signature Not Verified Signed by: PREETI TIWARI Signing time: 5/7/2024 2:51:42 PM 6 ingredients of the offence under Section 294 of IPC is made out."
18. In light of the above discussion, it is manifestly clear that legal evidence to constitute an offence under Section 294 of IPC is missing."
7. Learned P.L. for the respondent/State submits that sufficient material is available against the present applicant and therefore, no case for quashment is made out.
8. As per the FIR, the obscene act was not done in any public place or near public place and the same was committed by sending e-mail. The e-mail was not addressed to anyone though it was sent to e-mail id of complainant. In the e-mail, nothing was stated directly in respect of complainant and the words were not obscene and the act done by the accused persons did not cause annoyance to others.
9. On perusal of the complaint, the FIR, the statement of witnesses and other evidence collected by the investigation officer during investigation, sufficient material are not available to put petitioners on trial for offence punishable under Section 294/34 of the IPC. The petitioners are students of MBBS, AIMS Bhopal and continuation of trial against the petitioners would be an abuse of the process of court and the ends of justice requires that the proceedings be quashed.
10. In view of the celebrated judgment of the Apex Court delivered in the matter of State of Haryana & Ors. Vs. Bhajan Lal (1992) Suppl 1 SCC 335, the continuation of trial against the petitioners would defeat the interest of justice. The relevant extract of the aforesaid decision is reproduced below:
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise Signature Not Verified Signed by: PREETI TIWARI Signing time: 5/7/2024 2:51:42 PM 7 of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report of the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
11. Considering the above, I am of the view that necessary Signature Not Verified ingredients for offence punishable under Section 294/34 of the IPC are missing Signed by: PREETI TIWARI Signing time: 5/7/2024 2:51:42 PM 8 and therefore, the criminal proceedings pending before Judicial Magistrate First Class, Bhopal in R.C.T. No.8711/2020 arising out of Crime No.703/2020 of Police Station-Baagsevaniya, Bhopal is liable to be quashed qua petitioners and hereby quashed.
12. With the aforesaid, the petition is allowed.
(VINAY SARAF) JUDGE P/-
Signature Not Verified Signed by: PREETI TIWARI Signing time: 5/7/2024 2:51:42 PM