Kerala High Court
K.D.Johny vs State Of Kerala on 25 September, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
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CRL.MC NO. 2688 OF 2018
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY,THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946
CRL.MC NO. 2688 OF 2018
CRIME NO.593/2017 OF Ernakulam North Police Station
CC NO.992 OF 2017 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE ,
ERNAKULAM
PETITIONERS/ACCUSED 1 & 3:
1 K.D.JOHNY
AGED 56,S/O.DEVASSY,KAPPITHAN PARAMBU HOUSE,
VADUTHALA,CHERANELLOOR VILLAGE,
ERNAKULAM DISTRICT.
2 AKHILA LUCY JOHN
AGED 27,D/O.K.D.JOHNY,KAPPITHAN PARAMBU HOUSE,
VADUTHALA,CHERANELLOR VILLAGE,ERNAKULAM DISTRICT.
BY ADV SRI.MATHEW SEBASTIAN
RESPONDENTS/COMPLAINANT AND STATE:
1 STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE,
ERNAKULAM TOWN NORTH POLICE STATION,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,COCHI-682031.
2 FREDSON.K.F
AGED 33,S/O.FELIX,KAPPITHAN PARAMBU HOUSE,
VADUTHALA,CHERANELLOOR VILLAGE,
ERNAKULAM DISTRICT.
BY ADV SRI.P.MOHAMED SABAH
SRI.SANAL.P.RAJ, PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
25.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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2
P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.2688 of 2018
----------------------------------------------
Dated this the 25th day of September, 2024
ORDER
This criminal miscellaneous case is filed to quash the
proceedings in C.C.No.992/2017 on the file of the Additional
Chief Judicial Magistrate Court, Ernakulam. The above case is
charge-sheeted against the petitioners alleging offences
punishable under Sections 447, 294(b) and 506(i) read with
Section 34 of the Indian Penal Code.
2. The prosecution case is that, on 11.03.2017 at 8 pm,
the accused, after trespassing into the property of the defacto
complainant, used filthy language and threatened to kill him.
According to the petitioners, even if the entire allegations are
accepted, no offence is made out.
3. Heard the learned counsel for the petitioners and the
learned counsel for the 2nd respondent. I also heard the learned
Public Prosecutor.
4. The counsel for the petitioners reiterated the
contentions raised in this criminal miscellaneous case and
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submitted that no offence is made out. The counsel for the
defacto complainant takes me through the FI Statement, the
statement recorded by the witness under Section 161 Cr.P.C.
and also other documents produced along with the final report
and submitted that the offences are made out and the
contention raised by the petitioners is to be raised before the
trial court at the appropriate stage.
5. This Court considered the contentions of the
petitioners and the respondents. The offences alleged are
under 447, 294(b) and 506(i) read with Section 34 of the Indian
Penal Code. The allegation against the petitioners as per the
final report is extracted hereunder:
"1 മുതൽ 3 വരെ പ്രതികൾക്ക് 1-)o സാക്ഷിയെയും കുടുംബത്തെയും
ഭീഷണിപ്പെടുത്തണമെന്നുള്ള ഉദ്ദേശത്തോടും കരുതലോടും കൂടി
11.03.17 തീയതി രാത്രി 20.07 മണിക്ക് 1-)o സാക്ഷിയും മറ്റും
കുടുംബമായി താമസിച്ചുവരുന്ന ചേരാനല്ലൂർ വില്ലേജ്
വടുതലക്കരയിൽ കപ്പിത്താൻ പറമ്പ് വീടിന്റെ കോമ്പൗണ്ടിൽ
കുറ്റകരമായി അതിക്രമിച്ച് കയറി 1-)o സാക്ഷിയെയും
കുടുംബത്തെയും അസഭ്യം പറഞ്ഞ് വേദനിപ്പിച്ചും കൊല്ലുമെന്ന്
ഭീഷണിപ്പെടുത്തിയും പ്രതികൾ മേൽ വകുപ്പുകൾ പ്രകാരം
ശിക്ഷിക്കത്തക്ക കുറ്റം ചെയ്തിരിക്കുന്നു എന്ന്"
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6. Whether the offences are attracted in the light of the
above allegation is the 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 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
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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 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
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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 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
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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 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
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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 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,
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"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 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)
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9. In the light of the above dictum, this Court perused
the allegation in charge. 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."
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14. A reading of the definition of "Criminal
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
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as the comments posted on the Facebook are
concerned, it 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 other offence alleged is under Section 447 IPC.
Section 447 IPC says about the punishment for criminal
trespass. Criminal trespass is defined in Section 441 IPC, which
is extracted hereunder:
"Whoever enters into or upon property in the
possession of another with intent to commit an
offence or to intimidate, insult or annoy any person
in possession of such property, or having lawfully
entered into or upon such property, unlawfully
remains there with intent thereby to intimidate,
insult or annoy any such person, or with intent to
commit an offence, is said to commit "criminal
trespass".
13. From the above it is clear that whoever enters into or
upon property in the possession of another with intent to
commit an offence or to intimidate, insult or annoy any person
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in possession of such property, then only there is criminal
trespass. This Court already found that the offences under
Sections 294(b) and 506 IPC are not made out. If that is the
case, there cannot be any criminal trespass.
14. The upshot of the above discussion is that the
continuation of prosecution against the petitioners is not
necessary.
Therefore, this criminal miscellaneous case is allowed. All
further proceedings against the petitioners in C.C.No.992/2017
on the file of the Additional Chief Judicial Magistrate Court,
Ernakulam are quashed.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
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PETITIONER ANNEXURES
ANNEXURE-A1 CERTIFIED COPY OF THE FIRST INFORMATION
REPORT DATED 16.3.2017 IN CRIME
NO.593/2017 OF ERNAKULAM TOWN NORTH
POLICE STATION
ANNEXURE-A2 CERTIFIED COPY OF THE FINAL REPORT IN
CRIME NO.593/2017 OF ERNAKULAM TOWN
NORTH POLICE STATION DATED 18.7.2017.
