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Akhil Chandran, Represented by Jayachandran, Aadinadu Village v/s State of Kerala, Represented by Public Prosecutor, High Court of Kerala, Ernakulam & Another


Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

    Crl.MC. No. 3682 of 2019

    Decided On, 11 July 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

    For the Petitioner: Brijesh Mohan, Shajin S. Hameed, Advocate. For the Respondents: R2, Syam J. Sam, R1, Amjad Ali, Advocates.



Judgment Text

1. The petitioner is a juvenile/child in conflict with law arrayed in summary trial case, S.T.No.18/2019 in the proceedings initiated under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, on the file of the Juvenile Justice Board, Kollam, for offences punishable under Secs.452, 341, 294(b), 506(i), 323, 324, 354 & 427 read with Sec. 34 of the I.P.C. The said proceedings has initially arisen out of Anx.A FIR in Crime No.1208/2018 of the Karunagappally Police Station, which has been registered for offences punishable under Secs. 451, 341, 506, 323, 427, 354 read with Sec. 34 of the I.P.C., which has been initiated on the basis of a complaint/FI statement dated 27.8.2018 submitted by the 2nd respondent defacto complainant, in which the sole accused arrayed therein, is her husband. In Anx.A FIR & FI statement, the 2nd respondent defacto complainant has not made any allegations whatsoever as against the petitioner herein. Later, the 2nd respondent in Anx. B additional Sec. 161 Cr.P.C. statement made certain allegations against the petitioner herein and the petitioner herein was arrayed as accused No.2 and since he was a child/juvenile, as he had not completed the majority age of 18 years, as on the date of the alleged commission of the offence (26.8.2018), the said case was separated and initiated under the provisions of the Juvenile Justice Act. After investigation, Anx.C final report/charge sheet has now been filed before the Juvenile Justice Board concerned, which has led to the pendency of the abovesaid summary trial case, S.T.No. 18/2019 on the file of the said Juvenile Justice Board, Kollam. In the FI statement given by the 2nd respondent before the authorities concerned, which led to the registration of the abovesaid Crime No.1208/2018 of Karunagappally Police Station, her version was that she had married one Krishakumar, the sole accused in Anx.A crime, on 12.8.2012 and in the wedlock, they have two children, and that due to the physical assault of her husband, she was constrained to stay at her home since the last 6 years and the marital tie of the abovesaid spouses was dissolved about an year back and the sole accused (her former husband) has re-married another woman. Her further version in Anx.A FIR/FIS is that on 26.8.2018 at about 8 p.m., while she was cooking, her former husband (sole accused) had trespassed into her house and caught hold of her and tore her nighty and intimidated her and when her parents tried to rescue her, the former husband had assaulted them and that he had slapped the 2nd respondent. That when the nearby people gathered, her former husband left the scene and the 2nd respondent and her parents had underwent treatment at a hospital in Karunagappally and after returning from the hospital, she found that the window glass panes were destroyed by her former husband and two of his henchmen.

2. From a reading of Anx.A FIS it can be seen that no allegations whatsoever have been raised by her, even remotely, as against the petitioner herein, who was admittedly a minor at that time. On the next day, viz., 28.8.2018, the 2nd respondent has given another version of the incidents, alleging that the petitioner herein was standing outside the house at the time of the abovesaid incidents and he had entered into her house and uttered obscene words. The petitioner is stated to be the son of the elder brother of the former husband of the 2nd respondent. The allegations raised in Anx. B additional Sec. 161 Cr.P.C. statement given by the 2nd respondent are that, at the time of the incidents, the petitioner herein, who is the son of the elder brother of her former husband, was also standing outside and then he had also abused her and that even on earlier occasions he had tried to enter into her house and made troubles for her, etc.

On the basis of the said additional Sec. 161 Cr.P.C. statement as per Anx. B, the petitioner herein was arrayed as accused No.2 and as he was found to be a minor at the time of the commission of the alleged offence, his case was separately registered under the Juvenile Justice Act as above, which led to the filing of the impugned Anx. C final report/charge sheet as against him, which has now resulted in the summary trial case, S.T.No. 18/2019, in which he has been arrayed as accused in the proceedings before the Juvenile Justice Board, Kollam.

3. Further, it appears that Anx.D is the accident register cum wound certificate issued by the hospital concerned on 26.8.2018 at about 8.20 p.m., on the day of the incident, which shows about the treatment undergone by the 2nd respondent immediately after the incident and in column No.9 thereof, it has been clearly recorded by the doctor that the 2nd respondent has informed that alleged assault was done by her former husband in her house. Column No.9 of Anx. D reads as follows:

"9. History as stated by the injured:- The alleged assault by husband at home."

4. No allegations whatsoever have been made even in Anx.D, which is issued on 26.8.2018 at about 8.20 p.m., that the 2 nd respondent defacto complainant has any case as to the involvement in any manner of the petitioner herein, who is stated to be the younger son of her husband's elder brother. It is solely on the basis of the abovesaid Anx.B additional statement given on the next day that the petitioner herein has been arrayed as accused.

5. Now in Anx.C final report, the offences alleged against the petitioner are multifarious and all the allegations raised against the principal accused in the main crime have also been now arrayed as against the petitioner, by attempting to rope him in with the aid of Sec.34 of the I.P.C. The offences alleged in Anx.C final report/charge sheet are those under Secs. 452, 341, 294(b), 506(i), 323, 324, 354, 427 and 34 of the I.P.C. The petitioner seeks quashment of the impugned Anx. C final report/charge sheet, which has now led to the pendency of the above summary trial case, before the Juvenile Justice Board.

6. The petitioner has urged various contentions in support of his claim that the impugned proceedings are liable to be quashed. Whereas Sri.Amjad Ali, learned Prosecutor and Sri.ShyamJ.Sam, learned counsel appearing for R-2 have opposed the pleas in the above Criminal Miscellaneous Case.

7. It can be seen from the abovesaid materials that the definite case of the 2nd respondent defacto complainant in Anx. A FIR & FIS given on 27.8.2018 is that the alleged incidents had taken place on 26.8.2018 at about 7.30 p.m. and that the entire allegations therein are directed against her former husband and no allegations whatsoever have been made by her as against the petitioner herein, who is stated to be the nephew of her former husband. The statement in Anx.D medical records, which was recorded about one hour after the alleged incident (which has been recorded on 26.8.2018 at about 8.20 p.m) is that the assault has been made by her husband at her home. Column No.8 also deals with history and alleged cause of the injury. It is stated therein that the alleged assault was by divorced husband at around 7.30 p.m. on 26.8.2018 at home. As can be seen from column Nos.8 and 9 of Anx.D medical records, even the version given by the 2nd respondent, within one hour after the incident, was that the assault has been done by the husband and no allegations whatsoever have been raised against the petitioner herein. Even in Anx. A FIR and FIS, which is given on the next day (27.8.2018 at about 7.15 p.m) the allegations are directed against the former husband. It is only in Anx.B additional Sec. 161 Cr.P.C. statement given belatedly on 28.8.2018 about 2 days after the incident, that allegations are raised against the petitioner and therein also what has been alleged is that the petitioner, who is her former husband's elder brother's son, had entered into her house and had used foul, abusive and derogatory words, etc.

8. Therefore, it appears that the allegations in Anx.B additional Sec. 161 statement given about 2 days after the incident, clearly to be an afterthought. It is not as if the 2nd respondent does not know the petitioner herein inasmuch as she herself would say that he is none other than her former husband's elder brother's son. If as a matter of fact the petitioner had any role in the abovesaid incident, definitely the 2nd respondent would have certainly stated about that in Anx. A FIR and FIS. The 2 nd respondent and her husband are stated to be divorced. With the subsequent allegations made in Anx. B, it is rather difficult to digest as to how the petitioner could be roped in even for offences like Secs. 452, 341, 506(i), 323, 324, 354, 427, etc. solely on the basis of Sec.34 of the I.P.C., by alleging that he shared the common intention with the principal accused. Even going by the main allegations in Anx.B additional statement, it can be seen that what is stated therein is that the petitioner had used foul, abusive and obscene languages. What exactly is the nature of the obscene languages is not even stated therein. It appears that her allegation is that the petitioner had used extremely foul and abusive languages. It is now by well established that usage of highly abusive and defamatory and foul language will not by itself constitute the offence as per Sec. 294(b) of the I.P.C. and that in order to attract the offence under Sec.294(b) of the I.P.C., the ingredient of obscenity as envisaged in Sec. 292 of the I.P.C. should be satisfied and that in other words, the words, said to have been used by the accused, should lascivious, which is sufficient enough to arouse impure sexual thoughts in the minds of the hearers, etc. The law in this regard is now well settled by a series of rulings, as in Latheef v. State of Kerala [2014(2) KLT 987], P.T. Chacko v. Nainan Chacko reported in 1967 KLT 799, Sangeetha Lakshmana v. State of Kerala reported in 2008 (2) KLT 745, etc. It will be profitable to refer to paragraph 5 of the case in Latheef's case supra, which reads as follows:

'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 Section 294(b) IPC, it must satisfy the definition of obscenity. Section 294 IPC does not define obscenity. Being a continuation of the subject dealt with under Section 292 IPC the definition of obscenity under 292(1) IPC can be applied in a prosecution under Section 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 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(2) KLT 745) 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 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 Section 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.'

9. Moreover, it is also trite that even if the words are found to be obscene, the offence under Sec. 294(b) of the I.P.C. will be attracted only if it is allegedly used in a public place. The 2nd respondent has no case that the petitioner herein has used the alleged words in the public place and her specific case is that he had allegedly used the words in her house. For these reasons, the main offence alleged against the petitioner, as raised in Anx. B additional statement, which is in relation to Sec.294(b) of the I.P.C., is not attracted and proceedings are liable to be quashed. As stated herein above, it is rather very difficult to take the view that the petitioner herein, who is a minor nephew of the former husband of the 2nd respondent defacto complainant, could be roped in for all other offences like Secs.452, 341, 506(i), 323, 324, 354 & 427, etc. of the I.P.C. by the aid of Sec. 34 of the I.P.C. on the plea that he has shared common intention with the principal accused who is the divorced husband of th

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e 2nd respondent. Such a case is not even set up in the additional statement given by none other than the 2nd respondent. The relationship between the parties appears to have been strained after the divorce and the submission made by the petitioner's counsel that the petitioner has been roped in unnecessarily only out of the disputes between the former spouses, should be given due weight by this Court. 10. In the light of these aspects, this Court is of the view that the further continuance of the impugned criminal proceedings is an abuse of the process of the court. Accordingly, it is ordered that the impugned Anx.C final report/charge sheet filed in Crime No. 1208/ 2018 of Karunagappally Police Station, which has led to the institution of summary trial case, S.T.No. 18/2019 on the file of the Juvenile Justice Board, Kollam, in which the petitioner has been arrayed as accused and all further proceedings taken in pursuance thereof as against the petitioner juvenile in conflict with law will stand quashed. The petitioner will forward certified copy copies of this order before the Juvenile Justice Board, Kollam and the investigating officer concerned for necessary information. The office of the Advocate General will forward certified copy of this order to the investigating officer concerned for necessary information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of.
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