Thomas Jacob vs State Of Kerala
2024 Latest Caselaw 32547 Ker

Citation : 2024 Latest Caselaw 32547 Ker
Judgement Date : 11 November, 2024

Kerala High Court

Thomas Jacob vs State Of Kerala on 11 November, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                  THE HONOURABLE MR. JUSTICE S.MANU

    MONDAY, THE 11TH DAY OF NOVEMBER 2024 / 20TH KARTHIKA, 1946

                       CRL.MC NO. 2481 OF 2020

          CRIME NO.710/2018 OF MAYYIL POLICE STATION, Kannur

        AGAINST THE ORDER/JUDGMENT DATED IN FIR NO.710 OF 2018 OF

JUDICIAL MAGISTRATE OF FIRST CLASS -II, KANNUR

PETITIONER:

            THOMAS JACOB
            AGED 45 YEARS
            PALAKUNUTHADATHIL HOUSE, CHAALAPADAM PATTIKKAD,
            THRISSUR-680 652.


            BY ADVS.
            M.P.ASHOK KUMAR
            SRI.P.C.GOPINATH
            SMT.BINDU SREEDHAR
            SHRI.ASIF N


RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA-
            682 031.

    2       N.P.RAGHAVAN,
            STATION HOUSE OFFICER, MAYYIL POLICE STATION, KANNUR-
            670 602.


            SMT NIMA JACOB, PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
11.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 2481 OF 2020
                                       2


                                                               2024:KER:83736



                                 ORDER

This Crl.MC was filed challenging the FIR in crime

No.710/2018 of Mayyil Police Station, Kannur. The offences alleged

against the Petitioner are under Sections 294(b) and 506 of IPC.

2. The learned Public Prosecutor submitted that final

report is already filed before the Judicial First Class Magistrate Court,

Kannur in this case. However, in view of the law laid down by the

Hon'ble Supreme Court in Abhishek v. State of Madhya Pradesh

[2023 SCC OnLine 1083], that challenge against the FIR will not

become infructuous for the reason that final report is filed, I

proceeded to consider whether the registration of the FIR in the case

itself is sustainable.

3. I have perused the FIR produced as Annexure A1.

The 2nd Respondent herein registered the crime stating that when he

was on duty on 15.11.2018, at about 7.30 hours, he received a call

in his mobile number 9497980888 from +61468334227 and the

person who made the call addressed him in abusive language and

threatened that his legs will be chopped off. The voice clip was CRL.MC NO. 2481 OF 2020

2024:KER:83736

recorded in the mobile phone of the 2nd Respondent. He himself

registered the case and proceeded further.

4. The learned counsel for the Petitioner submitted

that the offence under Section 294(b) of IPC will not be attracted

even if the allegation is accepted as correct. He submitted that only

when the occurrence is in a public place, the offence under Section

294(b) can be attracted. Here, in this case, the specific case of the

2nd respondent is that the Accused used filthy language against him

by making a call to his mobile number. I find considerable force in

this argument. It is well settled that mere using of abusive or

humiliating words will not attract the offence under Section 294(b)

of the IPC. I refer to the following observation of this Court in

Latheef v. State of Kerala reported in 2014 (2) KLT in this

regard.

'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 CRL.MC NO. 2481 OF 2020

2024:KER:83736

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 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 CRL.MC NO. 2481 OF 2020

2024:KER:83736

(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.'

5. If the allegation raised in this case is tested in the

light of the law laid down by this Court in the judgment referred

above, the definite conclusion would be that the offence under

Section 294(b) is not be attracted in this case in any view of the

matter. Therefore, I find that the offence under Section 294(b) is not

attracted in this case.

6. Remaining is the offence under Section 506 of the

IPC. The said offence is non-cognizable. No permission required

under law was obtained from the Magistrate concerned by the Police

in this case. Therefore, a prosecution solely for the offence under

Section 506 of the IPC is not sustainable.

7. The inevitable conclusion therefore is that the FIR