IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 Crl.MC.No. 1367 of 2011() ------------------------- ST.4485/2010 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM, KOTTAYAM DISTRICT ............................................ PETITIONER(S): ACCUSED: ------------------------------------------ JOSHY CYRIAC, S/O. CYRIAC, AGED 40 YEARS, WEST ROCK APARTMENT, P.J.ANTONY GROUND ROAD, PACHALAM KARA, KANAYANNUR TALUK, ERNAKULAM. BY ADV. SRI.GEORGE SEBASTIAN RESPONDENT(S): DEFACTO COMPLAINANT & STATE: -------------------------------------------------------------------------------- 1. RADHA REMANAN, MANGALPADYIL, PADINJATTUMCHERI, PADINJAREMURI KARA, NADUVILE VILLAGE, VAIKKOM, KOTTAYAM DISTRICT-686 141. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. R2 BY PUBLIC PROSECUTOR SRI. JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.1367/2011 APPENDIX PETITIONER'S ANNEXURE: ANNEX.A: COPY OF FINAL REPORT IN CRIME 1273/2010 WHICH IS PENDING AS ST.NO.4485/2010 ON THE FILE OF JFCM, VAIKKOM. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1367 of 2011 --------------------------------------- Dated this 24th day of June, 2011 ORDER Though first respondent/de facto complainant is served, there is no response. Public Prosecutor has taken notice for the second respondent. 2. Petitioner is accused in Crime No.1273 of 2010 of Vaikom Police Station for offence punishable under Sec.294(b) of the Indian Penal Code (for short, "the IPC”). That case was registered originally for the said offence and Sec.307 of the IPC. But as seen from Annexure-A, copy of final report the police charged petitioner only for offence under Sec.294(b) of the IPC. Allegation is that on 12.11.2010 at about 9a.m when the first respondent questioned petitioner for parking the car in such a way as to obstruct him from opening his shop, petitioner used obscene words at the first respondent and thereby committed the offence. It is contended that neither the final report nor the statement of any of the witnesses referred to the obscene words allegedly spoken by the petitioner and in the circumstance, charge under Sec.294(b) of the IPC cannot stand. Learned counsel in the circumstances contended that the final report is Crl.M.C.No.1367 of 2011 -: 2 :- liable to be quashed. I have heard learned Public Prosecutor also. 3. It is seen from the copy of final report in Crime No.1273 of 2010 that words allegedly uttered by the petitioner are not mentioned. Instead it is only stated that petitioner used obscene words and caused annoyance to the first respondent. That statement is not sufficient to attract offence under Sec.294 (b) of the IPC. For, to charge a person with the offence under Sec.294(b) of the IPC it must be shown that the words uttered passed the test of obscenity. This Court in P.T.Chacko Vs. Nainan Chacko (1967 KLT 799) and Chacko George VS. State of Kerala (1968 KLT 219) has stated what exactly is the test of 'obscenity'. It is whether tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and that the words uttered must be capable of arousing sexually impure thoughts in the minds of the hearers. Since in the present case, the words allegedly spoken by petitioner are not disclosed either in the final report or in the statement of witnesses, it is not possible to say that those words (said to be spoken by the petitioner) passed the test of obscenity. Nor could the prosecution witnesses be allowed to Crl.M.C.No.1367 of 2011 -: 3 :- improve their version in the box as to what exactly are the words allegedly uttered by petitioner. In that view of the matter cognizance taken against petitioner for offence under Sec.294(b) of the IPC cannot stand. Resultantly this criminal miscellaneous case is allowed. Cognizance taken against petitioner and proceeding against him in S.T.No.4483 of 2010 of the Court of learned Judicial First Class Magistrate, Vaikom (arising from the final report in Crime No.1273 of 2010 of Vaikom Police Station) to the extent it concerned charge under Sec.294(b) of the IPC are quashed. (THOMAS P JOSEPH, JUDGE) Sbna/-