IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 Crl.MC.No. 1748 of 2011() ------------------------- CC.412/2010 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA .................... PETITIONER(S): ACCUSED 1 AND 2: ------------------------------------------------------ 1. A.VARGHESE, AGED 51 YEARS, S/O.VARGHESE, KARIMANGLATHU VEEDU, VATTAKOTTAL, THEKKEKARA MURI, MADATHUMBHAGHOM, PURAMATTOM VILLAGE. 2. VARGHESE K.MATHEW, AGED 48, S/O.MATHEW,KARIMANGLATHU VEEDU, VATTAKOTTAL, THEKKEKARA MURI, MADATHUMBHAGHOM, PURAMATTOM VILLAGE. BY ADVS. SRI.P.HARIDAS, SMT.SIKKY RAVISHANKAR. RESPONDENT(S): STATE & COMPLAINANT: ------------------------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KOIPURAM POLICE STATION. 3. MANJUMOL, W/O.SHAJI, MYLAMOODU PARACKAL, MUNDUMALA P.O., PURAMATTOM, KAVUNGUMPRAYAR, PURAMATTOM VILLAGE, THIRUVALLA TALUK. R1 & R2 BY PUBLIC PROSECUTOR SRI.MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.1748/2011 APPENDIX PETITIONER'S ANNEXURE: ANNEX.1: COPY OF THE FINAL REPORT DTD. 31/10/2010. RESPONDENT'S ANNEXURE: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1748 of 2011 -------------------------------------- Dated this the 14th day of June, 2011. ORDER Petitioners are accused 1 and 2 in Crime No.685 of 2010 of Koipram Police Station and C.C.No.412 of 2010 of the court of learned Judicial First Class Magistrate-II, Pathanamthitta for offences punishable under Sections 323 and 294(b) read with Section 34 of the Indian Penal Code (for short, “the IPC”). Prosecution case is that on 21.10.2010 at about 3 p.m. petitioners used obscene words at CW1, assaulted him in furtherance of their common intention and thereby committed offences as alleged. It is contended by learned counsel for petitioners that charge under Sec.294(b) of the IPC cannot stand due to non- mention of the alleged obscene words in the records. I have heard learned counsel for petitioners and the learned Public Prosecutor. 2. As submitted by learned counsel learned Magistrate has not read over particulars of the offence. If offence under Sec.294(b) of the IPC cannot stand since as contended by learned counsel the alleged obscene words are not stated in the records there is no possibility of the court considering whether the words allegedly uttered by petitioners satisfied the test of obscenity as understood in Sec.294 (b) of the IPC. It is open to the petitioners to contend at the stage of Sec.251 of the Code of Criminal Procedure (for short, “the Code”) that particulars of offence regarding Sec.294(b) of the IPC cannot be read over Crl.MC No.1748/2011 2 and proceeding has to be stopped so far as that offence is concerned in view of the decision in Kamala Rajaram v. State of Kerala (2005(3) KLT 617) invoking Secs. 251 and 258 of the Code. There is no reason why this Court should interfere when petitioners have that right. 3. It is submitted by learned counsel that second petitioner is working abroad and that he will have to be dragged into the court. I make it clear that it is open to the second petitioner to request learned Magistrate to permit him to appear through counsel and if necessary seek permanent exemption under Sec.205 of the Code. If any such request is made learned Magistrate shall consider the same and pass appropriate orders having regard to the circumstances stated above. With the above direction, this Criminal Miscellaneous Case is closed. THOMAS P.JOSEPH, Judge. cks