Kerala High Court
Vijaya @ Viji vs Anoopi on 6 September, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
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CRL.MC NO. 441 OF 2018
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 6TH DAY OF SEPTEMBER 2024 / 15TH BHADRA, 1946
CRL.MC NO. 441 OF 2018
CRIME NO.760/2017 OF ALUVA WEST POLICE STATION
CC NO.901/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
ALUVA
PETITIONER/ACCUSED:
VIJAYA @ VIJI
AGED 44 YEARS, W/O.LATE K.G.REGHUNATH,
THOPPIL HOUSE, KARUMALOOR P.O.,
TATTAMPADY, ALUVA WEST, ERNAKULAM DISTRICT.
BY ADV SRI.GEORGE SEBASTIAN
RESPONDENTS/DEFACTO COMPLAINANT & STATE:
1 ANOOPI
D/O.DEVADAS, KURULAI HOUSE, MAROTTICHUVADU,
KARUMALOOR P.O., TATTAMPADI, ALUVA WEST,
ERNAKULAM DSITRICT-683101.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY ADVS. SMT.BABY SNOWDIT
SRI.PRASUN.S
SRI.P.V.SREENIJIN
SRI.RENJITH.T.R, SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
06.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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CRL.MC NO. 441 OF 2018
2
P.V.KUNHIKRISHNAN, J.
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Crl.M.C. No.441 of 2018
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Dated this the 06th day of September, 2024
ORDER
This criminal miscellaneous case is filed to quash the
proceedings in C.C.No.901/2017 on the file of the Judicial First
Class Magistrate Court-II, Aluva, arising from Crime
No.760/2017 of Aluva West Police Station. Annexure-D is the
final report. The above case is charge sheeted alleging offences
punishable under Sections 294(b), 506, 354(iv) and 509 of the
Indian Penal Code.
2. The prosecution case is like this:
While Charge Witness Nos.1 and 2 were returning from a
temple on 15.06.2017 at 9.30 am, the accused, in the presence
of others, called Charge Witness Nos.1, 2 and the sister of
Charge Witness No.1 as a prostitute and also called "പൂറിമോളെ".
Hence it is alleged that the accused committed the offence.
According to the prosecution, the accused uttered the above
words because of the belief that the husband of the petitioner
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died because of Charge Witness No.1 and others. Hence it is
alleged that the accused committed the offence. According to
the petitioners, even if the entire allegations are accepted, no
offence is made out.
3. Heard the learned counsel for the petitioner, learned
counsel for the 1st respondent and also the learned Public
Prosecutor.
4. The counsel for the petitioner reiterated the
contentions in this criminal miscellaneous case and submitted
that even if the entire allegations are accepted, no offence is
made out. The Public Prosecutor and the counsel for the 1 st
respondent submitted that the contentions raised by the
petitioners are all matters of evidence and this Court may not
interfere with the same invoking the powers under Section 482
Cr.P.C.
5. This Court considered the contentions of the
petitioner and the Public Prosecutor. The first offence alleged
against the petitioner is under Section 294(b) IPC. The word
uttered by the accused is " പൂറിമോളെ". Whether the same would
attract Section 294(b) IPC is the question to be decided.
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6. 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 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
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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 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
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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 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 Kerala [2008
(1) KHC 812], this Court also considered the meaning of
obscenity. It will be better to extract the relevant portion of the
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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 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."
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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 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
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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 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 dictum, this Court perused
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the allegation in charge. Accused and victims are ladies. I am
of the considered opinion that the offence under Section 294(b)
IPC is not attracted in the factual circumstances of this case.
10. As far as the offence alleged under Section 506 IPC is
concerned, the Apex Court considered the ingredients of the
same 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 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
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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 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
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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)
11. In the light of the above principle, I am of the opinion
that the offence under Section 506 IPC is also not attracted in
the facts and circumstances of the case.
12. The next offence alleged in the final report is under
Section 354(iv) IPC. Section 354A IPC is extracted hereunder:
Section 354A:- Sexual harassment and punishment for
sexual harassment
(1) A man committing any of the following acts--
(i) xxxx xxxx xxxx xxxx xxxx xxxx
(ii) xxxx xxxx xxxx xxxx xxxx xxxx
(iii) xxxx xxxx xxxx xxxx xxxx xxxx
(iv) making sexually coloured remarks
shall be guilty of the offence of sexual harassment.
13. Therefore, to attract Section 354(iv) IPC, a man
should make a sexually coloured remarks. Admittedly in this
case the accused is a lady and the defacto complainant is also a
lady. In such circumstances, Section 354(iv) IPC is not
attracted.
14. What remains is the offence under Section 509 IPC. In
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the Police final report the offence under Section 509 IPC is not
alleged. But the learned Magistrate took cognizance under
Section 509 IPC also. It will be better to extract Section 509
IPC:
"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. "
15. Section 509 IPC says about word, gesture, or act
intended to insult the modesty of a woman. As I mentioned
earlier, the petitioner/accused is a lady and the victim is also a
lady. In such circumstances, it is difficult to attract Section 509
IPC also in the facts and circumstances of the case.
16. It is true that, if the allegations against the petitioner
are true, the same may be defamatory to the defacto
complainant. But the offences alleged are not attracted in the
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facts and circumstances of the case. Therefore I am of the
considered opinion that the continuation of prosecution against
the petitioner is not necessary.
Therefore, this criminal miscellaneous case is allowed. All
further proceedings against the petitioner in C.C.No.901/2017
on the file of the Judicial First Class Magistrate Court-II, Aluva,
arising from Crime No.760/2017 of Aluva West Police Station,
are quashed.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
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PETITIONER ANNEXURES
Annexure A A TRUE COPY OF THE DISCHARGE SUMMARY
DATED 27/08/2014 ISSUED FROM THE AMRITA
INSTITUTE OF MEDICAL SCIENCES AND
RESEARCH CENTRE, ERNAKULAM
Annexure B A TRUE COPY OF THE FIR IN CRIME 665/2017
OF ALUVA WEST POLICE STATION
Annexure C A TRUE COPY OF THE FIR ALONG WITH FI
STATEMENT IN CRIME 760/2017 OF ALUVA
WEST POLICE STATION
Annexure D A TRUE COPY OF THE FINAL REPORT IN CRIME
760/2017 NOW PENDING AS CC 901/2017
BEFORE THE JFCM COURT-II, ALUVA ALONG
WITH STATEMENTS OF WITNESS
