Allowed

Vanaja A.K. v. State of Kerala

Kerala HC20 Dec 2022Crl.MC/1252/2021

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal miscellaneous petition to quash criminal proceedings initiated against the petitioner. The court held that the final report lacked sufficient material to prove that alleged obscene words met the legal definition of obscenity under section 294(b) IPC or that the acts constituted criminal intimidation under section 506(i) IPC or an act likely to spread dis

What did the court decide?

The criminal miscellaneous petition was allowed, and the final report along with all subsequent proceedings in ST. No.45/2020 including before the Magistrate Court were quashed.

Vanaja A.K. Vs State of Kerala — Quashing and FIR | Kerala HC (2022)

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+IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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TUESDAY, THE 20TH DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944

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CRL.MC NO. 1252 OF 2021

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[IN ST.NO.45/2020 ON THE FILE OF THE JUDICIAL FIRST CLASS

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MAGISTRATE, KUNNAMANGALAM]

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PETITIONER/ACCUSED:

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VANAJA A.K.
AGED 47 YEARS
W/O.LATE VENUGOPALAN,VADAKKEMAKKOLATHU
HOUSE,PAINGOTTUPURAM,KUNNAMANGALAM(P.O), KOZHIKODE-
673571.
BY SRI.V.T.MADHAVANUNNI

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RESPONDENTS/STATE AND COMPLAINANT:

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1STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERNAKULAM,KOCHI-31.
2ASOKAN NAIR.V,
AGED 60 YEARS
S/O RAMAN NAIR,VADAKKANGOLATH HOUSE,
PAINTOTTUPURAM,KUNNAMANGALAM(PO), KOZHIKODE-673571.
BY SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
20.12.2022 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC No.1252 of 2021 2

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O R D E R

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The petitioner, a lady aged 47 years, was
implicated as the sole accused in S.T.No.45/2020
on the file of the Judicial First Class Magistrate
Court, Kunnamangalam. The aforesaid case arises
from Crime No.981/2019 of Medical College Police
Station, Kozhikode, which was initially registered
on a complaint submitted by the 2nd respondent for
the offences punishable under sections 294(b),
506(i) of the Indian Penal Code (IPC) and section
120(e) of the Kerala Police Act, 2011. Later in
the final report, the offence under section 120(e)
of the Kerala Police Act was deleted, and the
offence under section 270 of the IPC was added.

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2.The prosecution case is as follows:

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The defacto complainant, who is a retired
Assistant Sub Inspector of Police, is residing

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with the family in the property adjacent to that
of the petitioner. The petitioner, with the

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CRL.MC No.1252 of 2021 3

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intention to harass the defacto complainant, planted Tapioca stems for cultivation at a spot on her property, which was only 1½ feet away from the boundary of the defacto complainant. Even though the defacto complainant objected to this, the petitioner continued the said activities. Later, with the intention to harass the defacto complainant, the petitioner allegedly deposited kitchen waste on the property of the petitioner close to the boundary of the defacto complainant, and whenever the defacto complainant raised objection, the petitioner used to utter obscene words such as ' മൈ�രാ , പുലയാടിച്ചിമ�ാളെ� . It was also alleged that on account of the deposit of domestic waste, the defacto complainant was unable to use his well, thereby causing him serious difficulties and inconvenience. Annexure-A1 complaint was submitted in such circumstances based on which the aforesaid crime was registered. After completing the investigation, the police filed a final report

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CRL.MC No.1252 of 2021 4

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before the Judicial First Class Magistrate Court,
Kunnamangalam, for the offences punishable under
Sections 294(b), 506(i) and 270 of the Indian

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Penal Code (IPC). Cognizance thereon was taken by
the learned Sessions Judge in ST. No.45/2020.
This Crl.M.C. is filed in such circumstances to
quash the aforesaid proceedings.

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3.Heard Sri. V.T. Madhavanunni, the learned

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counsel for the petitioner and Sri. Vipin Narayan,
the learned Public Prosecutor for the State. Even

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though the service of notice on the 2nd respondent
is completed, there was no response for the 2nd
respondent.

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submits that the petitioner is a widow with two
teenage girls. Her husband died on 9.8.2003, and

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she and her family are living depending upon the
income derived from the agricultural activities on
her property. As part of the same, she planted
tapioca on her property, which was objected to by

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CRL.MC No.1252 of 2021 5

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the defacto complainant. According to the defacto
complainant, since tapioca stems were planted just
1½ feet away from his property, it was causing
nuisance to him. Since the petitioner was not
prepared to remove the tapioca stems, a false
complaint was submitted before the police, and
according to the petitioner, as the defacto
complainant was a retired police officer, by using
his influence, the police submitted a final report
with false allegations. It is further contended by
the learned counsel for the petitioner that even
if all the allegations contained in Annexure-A2
final report are accepted as true, there are no
materials to attract the offences alleged against
the petitioner. It is further stated that the
allegations with regard to the uttering of obscene
words and the act of threatening the defacto
complainant are very vague and without mention of
any specific date or place of occurrence. It was
further argued that, even if it is assumed that

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CRL.MC No.1252 of 2021 6

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the petitioner had uttered obscene words, the

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exact words referred to in the final report will
not attract the offence under section 294(b) of

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IPC as under no circumstances the same can be

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treated as obscene words. The quashing of the

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proceedings against the petitioner was sought in
such circumstances.

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Prosecutor would oppose the aforesaid allegations.
It is pointed out that the final report contains
the specific allegations against the petitioner,
and the question as to whether the allegations are
correct or not is a matter to be considered during
the trial. It is pointed out that the challenge

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raised by the petitioner in this Crl. M.C. is

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premature, and the contentions put forward by the
petitioner are to be considered during the course
of the trial. In such circumstances, the dismissal

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of Crl. M.C. was sought.

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6.I have carefully gone through the records.

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CRL.MC No.1252 of 2021 7

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Even though the FIR and statements under section

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161 of the Cr. P.C, of the witnesses were not
produced along with the Crl.MC, The learned
counsel for the petitioner, made available the
copies of the FIR and final report, and I have
perused the same.

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7. One of the crucial contentions raised by

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the learned counsel for the petitioner was that
the materials placed on record were not sufficient
to attract the offences alleged against her. One
of the offences alleged against her is under
section 294(b) IPC. According to the learned
counsel for the petitioner, to attract the said
offence, the words must be obscene; even if the
said words are abusive or humiliating, that is not
sufficient. Reliance was placed by the learned
counsel for the petitioner on the decisions
rendered by this Court in Latheef v. State of
Kerala [2014(2)KHC 604], Sajan C.K. v. State of

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Kerala and Another [2019(2)KLD 172]:[2019 KHC

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CRL.MC No.1252 of 2021 8

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528]. When considering the aforesaid question, it

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can be seen that what is made as an offence under
section 294(b) IPC is the act of singing, reciting
or uttering any obscene song, ballad or words in
or near any public place. Therefore, one crucial
element that attracts the offence is the use of
obscene words, songs or ballads. In section
294(b), the word ‘obscenity’ is not defined, but

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an indication as to the meaning of the word
‘obscene’ is available in section 292 of IPC,

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which deals with the sale of obscene books, etc.
Section 292(1) reads as follows:

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“292(1) For the purposes of sub-section (2), a
book, pamphlet, paper, writing, drawing,
painting, representation, figure or any other
object, shall be deemed to be obscene if it is
lascivious or appeals to the prurient interest
or if its effect, or (where it comprises two or
more distinct items) the effect of any one of
its items, is, if taken as a whole, such as to
tend to deprave and corrupt person, who are
likely, having regard to all relevant
circumstances, to read, see or hear the matter
contained or embodied in it.”

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In Dhanisha v. Rakhi N.Raj and Another [2012(2)KLT

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55], the Division Bench of this Court held that,

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there is nothing in section 294IPC to hold that

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CRL.MC No.1252 of 2021 9

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the word ‘obscene’ should have a different meaning

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than that is made applicable to section 292 IPC.

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In Latheef’s case (supra), it was observed by the
Hon’ble Supreme Court that abusive words or
humiliating words, or defamatory words will not
amount to obscenity as defined under the law. Of
course, there is no doubt that the words alleged
to have been used by the petitioner are, infact,
abusive and humiliating. But to make it ‘obscene’
and punishable under section 294(b) of the IPC, it

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must satisfy the definition of ‘obscene’. In that
decision also, the meaning of obscenity, as
mentioned in section 292(1) IPC, was relied on. In
P.T. Chacko v. Nainan Chacko reported in 1967 KLT
799, it was 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. After
referring to the said decision and certain other
decisions, it was held in Latheef’s case (supra)

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CRL.MC No.1252 of 2021 10

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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. In Latheef’s

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case (supra), almost a similar word, which is one

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of the words referred to in the final report, was
considered and it was found that it does not

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satisfy the test of obscenity.

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8.Sajan’scase (supra) is yet another

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decision which dealt with the test of obscenity in
connection with a word similar to that used in

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this case. After referring to a large number of
decisions, it was held that to make a word obscene
punishable under section 294(b) of IPC, the words

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alleged to have been uttered must be capable of
arousing sexually impure thoughts in the minds of

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its hearers. When applying the aforesaid

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principles laid down by this Court in the

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decisions referred to above, I am of the view

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CRL.MC No.1252 of 2021 11

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that, the words allegedly used by the petitioner

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and are relied on by the prosecution to attract
the offence under section 294(b) of IPC would not
satisfy the test of obscenity, even though the
said words are humiliating and abusive. As
observed in the decisions referred to above, the

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abusive nature of the language/words is not
sufficient to attract the offence under section
294(b) IPC. Therefore, I find some force in the
contentions raised by the learned counsel for the
petitioner in this regard.

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9.There is yet another aspect which makes

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the contention of the learned counsel for the
petitioner with respect to the ingredients of the
offence punishable under section 294(b)IPC legally
sustainable. As per section 294(b)IPC, the words
must have been uttered in or near a public place.
In this case, going by the complaint submitted by
the defacto complainant, his further statements

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and the statement of his wife, who has referred to

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CRL.MC No.1252 of 2021 12

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the utterance of the abusive words, it can be seen

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that the date and place at which such utterances
were made are not mentioned. In Aji Raj v. State
of Kerala [2020(2)KLT 279], the meaning of the
expression “in or near any public place” as
contemplated under section 294(b) was specifically
considered, and it was observed in paragraph 12,
as follows:

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“12. Now, the contention regarding the commission of
the offence under S.294(b) I.P.C. shall be adverted
to. It is significant that the expression “public
place” is used in S.294(a) I.P.C. but the expression
used in S.294(b) I.P.C. is “in or near any public
place”. The expression “in or near any public place”
is much wider in its sweep and scope than the
expression “public place”. If obscene words are
uttered or used by the accused even in the vicinity of
a public place, then the offence under S.294(b) I.P.C.
would be attracted. Such an act committed by the
accused in a private place but which is located in the
close vicinity of a public place, in a manner audible
to other persons and to the annoyance of other
persons, would attract the offence punishable under
S.294(b) I.P.C.”

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Thus, it is true that, even if the utterance were
made in a place which is located in the close
vicinity of a public place in a manner audible to
the other persons and to the annoyance of the
other persons, it would attract the offence
punishable under section 294(b)IPC. In this case,

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CRL.MC No.1252 of 2021 13

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it can be seen that there is no indication as to

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the exact place at which such utterances were
made. No specific date is also mentioned therein,
and it is a general and vague statement.
Therefore, no offence would be attracted since
nothing in the final report indicates that the
incident occurred in a public place or near a
public place. Going by the scene mahazar prepared
in this case, the description of the place is as
the private property of the defacto complainant as
well as the accused person. It does not refer to
any public place, and there is no description
indicating that the act was in the vicinity of a
public place. Therefore, for this reason also, the
contention raised by the learned counsel for the
petitioner that the materials are not sufficient
to attract the offence under section 294(b) IPC,
is to be accepted.

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10.Another offence is under section 506(i)of
IPC. I have gone carefully through the allegations

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CRL.MC No.1252 of 2021 14

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raised against the petitioner in the final report

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as well as in the statement of the witnesses in
this regard. Even though it is vaguely mentioned

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in the statements of the witnesses that the
petitioner threatened the victim, the place or the

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date on which such threat was made was not
specifically mentioned. The words allegedly used
by the petitioner for making such a threat are
also not specified anywhere in the complaint.
Section 503 of the IPC defines the offence of

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criminal intimidation, which is made punishable
under section 506(i) of the IPC. Section 503 of
IPC reads as follows:

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“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 intim
idation.

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Explanation.—A threat to injure the reputation of any
deceased person in whom the person threatened is
interested, is within this section. Illustration A,
for the purpose of inducing B to desist from
prosecuting a civil suit, threatens to burn B’s
house. A is guilty of criminal intimidation.”

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From the aforesaid provision, it is discernible

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CRL.MC No.1252 of 2021 15

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that the threat must be with any injury to his

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person, reputation or property, or to the person
or reputation of anyone 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. Since the words used by the petitioner were
not specifically mentioned, and the place or date
of making such a threat is not mentioned, I am of
the view that materials now available on record
are not sufficient to hold that the petitioner had
committed the offence of criminal intimidation
which is punishable under section 506(i) of IPC.
Therefore, the contention raised by the learned
counsel for the petitioner in this regard is also
to be accepted.

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11.The remaining offence is under section
270 of IPC. The said provision reads as follows:

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“According to section 270 of Indian penal code,
Whoever malignantly does any act which is, and which

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CRL.MC No.1252 of 2021 16

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he knows or has reason to believe to be, likely to
spread the infection of any disease dangerous to
life, shall be punished with imprisonment of either
description for a term which may extend to two years,
or with fine, or with both.”

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In order to attract the said provision, there must
be a malignant act on the part of the accused with
the knowledge that by doing such an act, he is
likely to spread the infection of any disease
dangerous to life. In this case, the basic
allegation with respect to the same is that the
petitioner deposited domestic waste in her
property adjacent to the boundary of the
petitioner's property, thereby making it difficult
for the petitioner to use the well. It is admitted
that the waste deposit was made on the petitioner's
property. Even though it was alleged that, on account
of the act of the petitioner, the water in the well
of the defacto complainant was contaminated, thereby
preventing him from using it, no materials indicating

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the same have been produced by the prosecution. It
is evident that no attempt was made by the

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prosecution to test the water in the well of the

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CRL.MC No.1252 of 2021 17

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defacto complainant to establish that the acts

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allegedly committed by the petitioner resulted in
the contamination of the water and, thereby, it
was an act likely to spread the infection or any
disease dangerous to life. In such circumstances,

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I am of the view that the materials placed on

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record are not sufficient to attract the offence
under section 270 of IPC as well.

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12.Thus, when considering the relevant

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aspects, I find force in the contentions put

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forward by the learned counsel for the petitioner.
To be precise, careful scrutiny of the materials

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compels this court to conclude that this is a

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proceeding initiated without proper materials and,
therefore, it is an abuse of the process of the
Court.

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In the result, this Crl.M.C. is allowed, the
final report submitted in Crime No.981/2019 of
Medical College Police Station and all proceedings

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pursuant to the same, including the proceedings in

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CRL.MC No.1252 of 2021 18

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S.T.No.45/2020 on the file of the Judicial First

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Class Magistrate Court, Kunnamanglam are hereby

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quashed.

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 Sd/-

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 ZIYAD RAHMAN A.A.,JUDGE

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pkk

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CRL.MC No.1252 of 2021 19

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APPENDIX OF CRL.MC 1252/2021

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PETITIONER’S ANNEXURES

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ANNEXURE A1A TRUE COPY OF THE COMPLAINT OF THE DEFACTO
COMPLAINANT DATED 25.12.2019 FILED IN MEDICAL
COLLEGE POLICE STATION KOZHIKODE CITY.

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ANNEXURE A2A CERTIFIED COPY OF THE FINAL REPORT IN ST
45/2020 ON THE FILE OF THE JUDICIAL I CLASS
MAGISTRATE,KUNNAMANGALAM
ANNEXURE A3THE PHOTOGRAPHS OF THE PROPERTY INVOLVED IN
THE DISPUTE.

Vanaja A.K. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Vanaja A.K. v. State of Kerala

Case brief

What is this about?

What did the court decide?

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