Madras High Court

K.Kanniah Naidu vs The State By on 8 September, 2022

                                                                         Crl.O.P.No.17380 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 08.09.2022

                                                       CORAM

                          THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                Crl.O.P.No.17380 of 2022
                                              and Crl.M.P.No.10557 of 2022

                     K.Kanniah Naidu                                      ...Petitioner

                                                          -Vs-

                     1.The State by
                       The Inspector of Police,
                       T 3 Korattur Police Station,
                       Chennai.

                     2.T.Damodharan                                       ... Respondents


                     Prayer: Criminal Original petition filed under Section 482 of Code of
                     Criminal Procedure, to call for the records on the file of the first
                     respondent in Crime No.325 of 2022 and quash the first information
                     report registered by the first respondent in Crime No.325 of 2022.
                                     For Petitioner          : Mr.V.Parthiban

                                     For R1                  : Mr.E.Raj Thilak
                                                               Additional Public Prosecutor

                                     For R2                  : Mr.P.Rakesh Kumar
                                                               for Mr.L.Rajasekar



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                                                                              Crl.O.P.No.17380 of 2022

                                                          ORDER

This Criminal Original Petition has been filed calling for the

records on the file of the first respondent in Crime No.325 of 2022 and to

quash the same.

2. The FIR in Crime No.325 of 2022 has been registered for

the offences punishable under Sections 448, 294(b) and 506(1) of IPC,

on the direction issued by the learned Judicial Magistrate, Ambathur in

C.M.P.No.855 of 2022, that the first respondent shall investigate the

complaint dated 17.11.2021 and register an FIR and file a report.

3. The petitioner is arrayed as A3. He is the father of the first

accused. The second accused is the sister of the first accused. The first

accused got married with the son of the defacto complainant and it was

an arranged marriage. After their marriage, they went to U.S.A and later

to Canada. Due to their wedlock, they also gave birth to a child. There

was misunderstanding between them and as such they got separated. The

first accused returned to India to see her parents viz, the petitioner.

Thereafter, the second respondent and his wife refused to accept the first

accused in their house, due to which, the first accused lodged a complaint

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Crl.O.P.No.17380 of 2022

before the All Women Police Station, Ambattur and she was issued CSR

in CSR No.422 of 2021. In fact, the first accused also filed a petition for

restitution of conjugal rights in HMOP No.556 of 2021 and it is pending

on the file of the Sub Court, Poonamallee. Thereafter, she also filed a

complaint under the Domestic Violence Act in D.V.No.14 of 2022 and it

is pending on the file of the learned Judicial Magistrate, Ambathur.

4. While being so, the second respondent filed a petition before

the learned Judicial Magistrate, Ambathur, seeking direction under

Section 156(3) of Cr.P.C. In the said petition, the learned Judicial

Magistrate, Ambathur, directed the first respondent to register an FIR

and investigate the same and file a final report.

5. The learned counsel for the petitioner pointed out that the

petition seeking direction under Section 156(3) of Cr.P.C has been

accompanied with the affidavit in support of this petition. The complaint

did not even whisper about the name of the petitioner. Whereas, in the

affidavit, it has been stated that the petitioner herein entered into the

house of the second respondent along with A1 and A2. That apart, in the

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Crl.O.P.No.17380 of 2022

order passed by the learned Judicial Magistrate, Ambathur, the date of

which they entered into the house is mentioned as 17.11.2012 instead of

17.11.2021. Further, nowhere the date of alleged occurrence has been

mentioned neither in the petition nor in the affidavit filed by the second

respondent. He further submitted that the petitioner challenged the FIR

registered in Crime No.325 of 2022 and the same was withdrawn with a

liberty to challenge the order passed under Section 156(3) of Cr.P.C. He

also relied upon the Judgment of the Hon'ble Supreme Court of India in

the case of “Suresh Kankra Vs. State of U.P. And others” in

“Crl.A.No.52 of 2022” dated 07.01.2022, wherein held that the Judicial

Magistrate is required to be conscious of the consequences while passing

an Order under Section 156(3) of Cr.P.C it being a judicial order,

relevant materials are expected to be taken not of.

6. A perusal of the complaint revealed that the first accused is

the wife of the second respondent's son. They got married and went to

U.S.A and later to Canada. Thereafter, they got separated due to

misunderstanding and the first accused returned to India. When the first

accused along with her parents went to the second respondent's house to

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Crl.O.P.No.17380 of 2022

pacify the issues, there was a quarrel between them. When the daughter-

in-law of the second respondent enters into her matrimonial home, it

would not amount to trespass. Further, insofar as the other offences are

concerned, viz, 294(b) and 506(1) of IPC, alleging that they started

verbal abuse and started to harass the second respondent's wife with

unparliamentary words. Nowhere it is stated that what are all the words

uttered against the second respondent and his wife.

7. To attract the offence under Section 294(b) of IPC, there must

be an uttering of words to affect the person who lodged the complaint. In

this regard it is relevant to extract the Section 294(b) of IPC, as follows :-

"294. Obscene acts and songs — Whoever, to the annoyance of others— (a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."

Admittedly, there is absolutely no words uttered by the petitioners as

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Crl.O.P.No.17380 of 2022

such to constitute the offence under Section 294(b) of IPC, there is no

averments and allegations. Further the charges do not show that on

hearing the obscene words, which were allegedly uttered by the

petitioners, the witnesses felt annoyed. No one has spoken about the

obscene words, they felt annoyed and in the absence of legal evidence to

show that the words uttered by the petitioners annoyed others, it can not

be said that the ingredients of the offence under Section 294(b) of IPC is

made out.

8. It is relevant to rely upon the judgment reported in 1996(1)

CTC 470 in the case of K.Jeyaramanuju Vs. Janakaraj & anr., which

held as follows :-

"To prove the offence under Section 294 of IPC mere utterance of obscence words are not sufficient but there must be a further proof to establish that it was to the annoyance of others, which is lacking in the case."

The above judgment is squarely applicable to the present case and

therefore, the offence under Section 294(b) of IPC is not at all attracted

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Crl.O.P.No.17380 of 2022

as against the petitioners.

9. Insofar as the offence under Section 506(i) of I.P.C is

concerned, to attract the offence, threat and intention to cause an alarm

are main ingredients. The third ingredient is that the intention must be to

cause any 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, subsequent

to the main ingredients. Whereas in the case on hand, even according to

the case of the prosecution, the alleged threats issued by the petitioner

were only empty threats and they had no effect on the complainant.

10. In this regard, It is relevant to rely upon the judgment of this

Court made in Crl.O.P.(MD)No.11030 of 2014 in the case of Abdul Agis

Vs. State through the Inspector of Police, which reads as follows:-

“7.It is seen from the statements recorded under Section 161(3) of Cr.P.C. of the second respondent/ defacto complainant that it does not contain any obscene words, which were uttered by the petitioner herein and the entire allegations are very simple in nature. It is also seen from the statement of one Uthami, that the petitioner threatened the defacto complainant

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Crl.O.P.No.17380 of 2022

with dire consequences when he dashed the defacto complainant. The entire allegations are trivial in nature. Further, to attract the offence under Section 506(i) of I.P.C., there was a threatening only by words. As pointed by the learned counsel appearing for the petitioner, the threat should be a real one and not just a mere word when the petition uttering does not exactly mean what he says and also when the person to whom threat is launched does not feel threatened actually.

Therefore, the offences under Sections 294(b) and 506(i) of I.P.C. are not made out as against the petitioner herein and also the entire criminal proceedings is clear an abuse of process of Court. Therefore, this Court is inclined to quash the entire proceedings.”

11. Therefore, no offence is made out as against the petitioner and

other accused. That apart, the learned Magistrate without considering the

aspects, mechanically directed the first respondent to register an FIR and

investigate the same. The learned Magistrate before issuance of direction

under Section 156(3) of Cr.P.C, ought to have taken note of the relevant

materials available on record.

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12. In view of the above, the order passed under Section 156(3) of

Cr.P.C cannot be sustained as against the accused persons. Therefore, the

FIR in Crime No.325 of 2022 on the file of the first respondent is hereby

quashed. Accordingly, this Criminal Original Petition stands allowed.