Kerala High Court
Shabi vs State Of Kerala on 15 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.5169 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 15TH DAY OF OCTOBER 2024 / 23RD ASWINA, 1946
CRL.MC NO. 5169 OF 2018
CRIME NO.1102/2009 OF NEDUMBASSERY POLICE STATION,
ERNAKULAM
PETITIONER/ACCUSED:
SHABI
AGED 46 YEARS, S/O.PADMANABHAN,
POKKARUPARAMBIL HOUSE, MUKUNDAPURAM TALUK,
LOKAMALESWARAM VILLAGE, PULOOT DESOM,
THRISSUR DISTRICT.
BY ADV. SRI.C.DHEERAJ RAJAN
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
2 LOYOLA DESOUZA
GULF AIR, NEDUMBASSERRY AIRPORT,
ERNAKULAM - 683 585 .
SRI.RENJITH.T.R, SENIOR PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 15.10.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.M.C. No.5169 of 2018
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P.V.KUNHIKRISHNAN, J.
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Crl.M.C. No.5169 of 2018
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Dated this the 15th day of October, 2024
ORDER
This Criminal Miscellaneous Case is filed to quash the proceedings against the petitioner in Crime No.1102/2009 of Nedumbassery Police Station. It is a prosecution initiated against the petitioner alleging offences punishable under Sections 294(b) and 509 IPC.
2. The prosecution case is that the petitioner was travelling in an aircraft GF 27 maintained by Gulf Air. The petitioner was travelling as a passenger on seat No.28 F in the said aircraft. It is alleged that the petitioner on 20.06.2009 at about 10PM to 10.30PM, while travelling in the said aircraft shouted and abused the crew, 2nd respondent herein, by using abusive Crl.M.C. No.5169 of 2018 3 2024:KER:76553 language and gesture due to the non availability of chicken meal of his choice. It is the further case of the prosecution that even though a warning was given by the flight senior, the petitioner continued the same.
Hence it is alleged that the accused committed the above said offences.
3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.
4. The above case is registered based on Annexure A1 complaint. It will be better to extract Annexure A1 complaint:
"Passenger Mr.Pokkaruparambil Shabi on seat 28F was very upset & angry when he didn't get his choice of chicken meal he started shouting and abusing the crew using rude language and gesture. He wouldn't listen to any of the crew and said we were only servants on board. It was difficult to control him on the flight. Service and crew and and passengers in economy was disrupted and disturbed because of this behavior. He was given a warning by the flight senior but still he continued Crl.M.C. No.5169 of 2018 4 2024:KER:76553 with the same behavior. Captain was informed and security was called. Written warning was'nt given to him because he was not willing to accept or listen to the crew. 30 minutes before top of descent he was calm."
5. Based on the same, Annexure A3 charge sheet was filed. Whether the same amounts to an offence under Section 294(b) IPC is the first question to be decided in this case. The ingredients of Section 294(b) IPC is considered by the Apex Court and this 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 Crl.M.C. No.5169 of 2018 5 2024:KER:76553 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 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 Crl.M.C. No.5169 of 2018 6 2024:KER:76553 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 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 Crl.M.C. No.5169 of 2018 7 2024:KER:76553 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 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 Crl.M.C. No.5169 of 2018 8 2024:KER:76553 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 Crl.M.C. No.5169 of 2018 9 2024:KER:76553 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."
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.
Crl.M.C. No.5169 of 2018 102024:KER:76553 "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 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 Crl.M.C. No.5169 of 2018 11 2024:KER:76553 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 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) Crl.M.C. No.5169 of 2018 12 2024:KER:76553
8. In the light of the above principles, this Court considered Annexure A1 complaint and Aneuxre A3 charge sheet. I am of the considered opinion that the offence under Section 294(b) IPC is not made out in this case.
9. The other offence alleged is under Section 509 IPC. Section 509 IPC is extracted hereunder:
"509. Word, gesture or act intended to insult the modesty of a woman.--Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine."
10. To attract the offence under Section 509 IPC, the accused should make word, gesture or act intended to insult the modesty of a woman. Even if the entire Crl.M.C. No.5169 of 2018 13 2024:KER:76553 allegations in the FIR and the charge sheet are accepted, I am of the considered opinion that, no offence under Section 509 IPC is made out. Therefore, the continuation of the prosecution against the petitioner is not necessary.
Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner in Crime No.1102/2009 of Nedumbassery Police Station including Annexure A3 charge sheet are quashed.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
Crl.M.C. No.5169 of 2018
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APPENDIX OF CRL.MC 5169/2018
PETITIONER ANNEXURES
ANNEXURE A1 THE TRUE COPY OF THE WRITTEN
COMPLAINT SUBMITTED BY THE 2ND
RESPONDENT.
ANNEXURE A2 THE TRUE COPY OF THE CRIME 1102/2009
REGISTERED BY THE NEDUMBASERRY POLICE AGAINST THE PETITIONER.
ANNEXURE A3 THE TRUE COPY OF THE CHARGE SHEET SUBMITTED BY NEDUMBASSERRY POLICE IN CRIME 1102/2009.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE