Kerala High Court
Sajikumar vs State Of Kerala on 3 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.MC NO. 5489 OF 2018
TO QUASH THE FINAL REPORT DATED 05.04.2024 IN CRIME
NO.196/2017 OF RAILWAY POLICE STATION ERNAKULAM AND THE
CONSEQUENTIAL PROCEEDINGS IN CC NO.494 OF 2017 OF JUDICIAL
MAGISTRATE OF FIRST CLASS-I,ERNAKULAM
PETITIONER/ACCUSED:
SAJIKUMAR
AGED 36 YEARS
PAZHAYATH KIZHAKKETHIL, H-NO.6, FAMILY NAGAR,
PUTHIYA KOVIL, KADAPPAKKADA P.O, KOLLAM
BY ADVS.
ABHILASH VISHNU S.
ATHUL SHAJI
RESPONDENTS/TATE AND DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031
2 UDAYAPRAKASH P.,
AGED 45 YEARS, S/O.PARAMESWARA KURUP, TRAVELLING
TICKET INSPECT, SLEEPER DEPOT,KOCHUVELI-695 021
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2
OTHER PRESENT:
SRI.RENJITH.T.R, SR.PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 03.10.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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3
P.V. KUNHIKRISHNAN,J.
-----------------------------------
Crl.M.C.No.5489 of 2018
------------------------------------
Dated this the 03rd day of October, 2024
ORDER
This Crl.M.C is filed to quash the
proceedings in CC.No.494/2017 on the files of
Judicial First Class Magistrate Court-I, Ernakulam.
arising from Crime No.196/2017. It is a case charge
sheeted against the petitioner alleging offences
punishable under Sections 294(b) and 353 of the
Indian Penal Code and also under Section 147 of the
Indian Railway Act. Annexure A is the final report.
2. On 05.04.2017, the defacto complainant
was the TTE in Kocuveli-Yeshvantpur Gareebrath
Train. When the defacto complainant, who was
inspecting the tickets of the passengers, the
accused was found in berth No.63 of the G5 AC Coach
of the train. The petitioner was not having a proper
ticket and he was requested to pay fine. It is
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alleged that the petitioner used abusive language
towards the defacto complainant and obstructed the
official duty of the defcato complainant. Hence, it
is alleged that the accused had committed the
offence. According to the petitioner, even if the
entire allegations are accepted, no offence is made
out against the petitioner.
3. Heard the learned counsel for the
petitioner and the Public Prosecutor.
4. The allegation against the petitioner
in the final report is extracted hereunder:
" പ്രതി മതിയായ യാത്രാ ടിക്കറ്റ് ഇല്ലാതെ T.12258-ാം നമ്പർ
കൊച്ചുവേളി - യശ്ശ്വന്ത്പൂർ ഗരീബ് രഥ് ട്രെയിനിന്റെ G5
കോച്ചിൽ 63-ാം നമ്പർ ബർത്തിൽ യാത്ര ചെയ്തു വരവേ ടി
ട്രെയിനിലെ TTI ആയ 1-ാം സാക്ഷി ടി കോച്ച് പരിശോധിച്ച്
വരവേ പ്രതിയോട് ഫൈൻ അടക്കണമെന്ന് ആവശ്യപ്പെട്ടതിലുള്ള
വിരോധത്താൽ 05.04.2017 തീയ്യതി രാത്രി 8.30 മണിയോടെ
ട്രെയിൻ പിറവം റോഡ് കഴിഞ്ഞ ഉടനെ പ്രതി 1-ാം സാക്ഷിയോട്
ഫൈൻ അടക്കില്ല എന്നും നീ എന്താണെന്നു വച്ചാൽ ചെയ്യടാ
മയിരേ എന്നും നീ എന്നെ അങ്ങ് 'ഊമ്പും' എന്നും മറ്റും പറയുകയും
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1-ാം സാക്ഷിയുടെ ഔദ്യോഗിക കൃത്യനിർവഹണത്തിന് തടസ്സം
വരുത്തുകയും ചെയ്തിരിക്കയാൽ പ്രതി മേൽവകുപ്പുകൾ പ്രകാരമുള്ള
കുറ്റകൃത്യം ചെയ്ത്തിരിക്കുന്നു എന്ന്. "
5. The first offence alleged is under
Section 294(b). The Apex Court and this Court
considered the ingredients to attract Section 294(b)
of the Indian Penal Code in different decisions.
6. 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 is lascivious,
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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
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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
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."
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(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 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.
7. In Sangeetha Lakshmana v. State of
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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
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
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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."
8. 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
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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
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
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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)
9. In the light of the above principle
laid down by the Apex Court and this Court, I am of
the considered opinion that the offence under
Section 294(b) IPC is not made out in this case.
This Court considered the allegation in the final
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report, I am of the considered opinion that the
statement of petitioner may be abusive or
defamatory, but, that will not attract the offence
under Section 294(b) of the Indian Penal Code.
Therefore, I am of the considered opinion that, the
offence under Section 294(b) of the Indian Penal
Code is not attracted in the facts and circumstances
of the case.
10. The other offence alleged is under
Section 353 of the Indian Penal Code. Section 353 of
the Indian Penal Code 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
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description for a term which may extend to two
years, or with fine, or with both.
11. To attract Section 353 of the Indian
Penal Code, assault or criminal force on a public
servant defering him from discharging his duty is
necessary. Assault is defined in Section 351 of the
Indian Penal Code, which is also 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.
12. Criminal force is defined in Section
350 of the Indian Penal Code, and the same is also
extracted:
350. Criminal force.-- Whoever intentionally
uses force to any person, without that person's
consent, in order to the committing of any
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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 of the
Indian Penal Code, and the same is also extracted.
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
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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.
14. Based on the above definitions, this
Court perused the complaint and the allegation in
the final report. In the final report, it is stated
that the petitioner obstructed the official duty of
the charge witness No.1. The manner in which it is
obstructed, is not clear in the final report. In the
first information statement also, the same is not
mentioned clearly. But in the further statement
given under Section 161 Cr.P.C the charge witness
No.1 narrated the way in which his official duty is
discharged. The relevant portion of the statement is
extracted hereunder:
അപ്പോൾ അയാൾ ' എനിക്ക് പണം അടക്കാൻ പറ്റില്ല, നീ
എന്താണ് എന്ന് വച്ചാൽ ചെയ്യടാ മയിരേ' എന്ന് പറഞ്ഞു.
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അയാൾ ചീത്ത വിളിച്ചതിൽ വച്ച് എനിക്ക് മനോവിഷമം
ഉണ്ടായി. കൂടാതെ നീ എന്നെ അങ്ങ് ഊമ്പും എന്നും കൂടി അയാൾ
പറഞ്ഞു. അയാൾ തർക്കിച്ചു നിന്നതുകൊണ്ട് നിന്നതിനാൽ
എനിക്ക് എന്റെ ഡ്യൂട്ടി ചെയ്യാൻ സാധിക്കാതെ വന്നു.
15. According to the learned counsel for
the prosecution, since the petitioner continued the
wordy quarrel, the charge witness No.1 was not able
to do his official duty. Admittedly, there is no
criminal force or assault in this case. If that is
the case, I am of the considered opinion that the
offence under Section 353 of the Indian Penal Code
is also not made out.
16. What remains is under Section 147 of
the Indian Railway Act, Section 147 of the Indian
Railway Act is extracted hereunder:
147. Trespass and refusal to desist from
trespass.-- (1) If any person enters upon or
into any part of a railway without lawful
authority, or having lawfully entered upon or
into such part misuses such property or refuses
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to leave, he shall be punishable with
imprisonment for a term which may extend to six
months, or with fine which may extend to one
thousand rupees, or with both:
Provided that in the absence of special and
adequate reasons to the contrary to be mentioned
in the judgment of the court, such punishment
shall not be less than a fine of five hundred
rupees.
(2) Any person referred to in sub-section (1)
may be removed from the railway by any railway
servant or by any other person whom such railway
servant may call to his aid.
17. Even if the entire allegations are
accepted, the offence under Section 147 of the
Indian Railway Act is also not attracted, because,
when the petitioner enter the railway station, he
was having a general ticket. But the prosecution
case is that, the petitioner cannot travel in the
particular coach of Gareebrath train .
18. The upshot of the above discussion is
that the prosecution against the petitioner is to be
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quashed.
Therefore, this Crl.M.C is allowed. All
further proceedings against the petitioner in CC
No.494/2024 on the files of the Judicial First Class
Magistrate Court-I, Ernakulam arising from Crime
No.196/2017, Railway Police Station, Ernakulam, are
quashed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SSG
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PETITIONER'S ANNEXURES
ANNEXURE A TRUE COPY OF THE FIR AND THE FINAL REPORT
DATED 30/04/2017 IN CRIME NO.196/2017
ALONG WITH THE RECORDS AND STATEMENT OF
WITNESSESS ANNEXED THEREWITH
ANNEXURE B TRUE COPY OF THE MEDICAL BOARD
PROCEEDINGS AND OPINION OF SPECIALIST
DATED 11.01.2017 OF THE PETITIONER
