IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 Crl.MC.No. 3428 of 2011() ------------------------------------- CC.571/2011 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT, RAMANKARI. CR. NO.276/2010 OF RAMANKARI POLICE STATION, ALAPPUZHA. .................... PETITIONERS/ACCUSED NOS.1 & 2 ---------------------------------------------------- 1. JOSEPH ALEXANDER, AGED 32 YEARS, S/O.JOSEPH, KARUVELITHARA VEEDU, RAMANKARI, ALAPPUZHA. 2. DAISY @ ROSAMMA, AGED 68 YEARS, W/O.JOSEPH,KARUVELITHARA VEEDU, RAMANKARI, ALAPPUZHA. BY ADV. SRI.R.ANIL RESPONDENTS/RESPONDENTS: ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BOBY KURUVILA, AGED 42 YEARS, S/O.KURUVILA, KARUVELITHARA VEEDU, MUTTAR VILLAGE, ALAPPUZHA- 689 595. R1 BY PUBLIC PROSECUTOR MR.RAJESH VIJAYAN. R2 BY ADV. SRI.N.J.MATHEWS. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs Crl.MC.No. 3428 of 2011 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A1 ATTESTED COY OF THE FINAL REPORT OF CRIME NO.276/2010 OF RAMANKARI POLICE STATION. ANNEXURE A2 ATTESTED COPY OF THE FIRST INFORMATION REPORT OF CRIME NO.276/2010 OF RAMANKARI POLICE STATION. ANNEXURE A3 TRUE COPY OF THE CMP NO.3335/2010. ANNEXURE A4 TRUE COPY OF THE SCENE MAHAZAR OF THE ALLEGED PLACE OF OCCURRENCE. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE rs N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3428 of 2011 ----------------------------------- Dated this the 19th day of November 2011 O R D E R Petitioners are accused Nos.1 and 2 in C.C.No.571/2011 pending on the file of J.F.C.M., Ramankari. Annexure A3 is the complaint which was given by the 2nd respondent herein before the learned Magistrate. It was forwarded to the police for investigation under Sec.156(3) Cr.P.C. After conducting investigation, charge sheet was laid against the petitioners alleging commission of offences under Secs.294(b) and 431 r/w 34 IPC. Learned counsel for the petitioners submits that there is absolutely no material based on which the learned Magistrate could take cognizance of the case against the petitioners for the offences as stated above. It is also argued that Annexure A3 complaint though was filed under Sec.200 of Cr.P.C., the only prayer made in that complaint was to refer the Crl.M.C. No.3428 of 2011 -: 2 :- complaint for investigation under Sec.156(3) Cr.P.C. Such a request cannot be entertained by the learned Magistrate. If a complaint is filed and if there is allegation that the accused has committed the offence, the learned Magistrate can enquire into the case and take cognizance of the case. It is also open to the learned Magistrate to forward the complaint for investigation under Sec.156(3) Cr.P.C. But the complainant cannot request that his complaint should be forwarded under Sec.156(3) Cr.P.C. Therefore, it is submitted by the learned counsel that Annexure A3 itself will show that it was filed with ulterior motives to see that the final report is filed influencing the police. 2. It is further argued by the learned counsel for the petitioners that a perusal of Annexure A4, the scene mahazar would show that no mischief was committed to render any public road, bridge or atleast a public pathway impassable. What can be gathered from Annexure A4 is that there was only a pathway leading to one or two houses. Crl.M.C. No.3428 of 2011 -: 3 :- It was not at all stated that there was any public road or pathway. The allegation is that the accused tied a cow in such a way as to cause obstruction to the pathway. The learned counsel for the first respondent would submit that a civil suit was filed against the accused and that suit was decreed in favour of the complainant. But it seems there was no finding to the effect that the pathway referred to in Annexure A4 is a public road or a public pathway. The learned counsel for the 2nd respondent would submit that if that pathway mentioned in Annexure A4 can be used by a postman or a policeman or such other persons, then certainly it can be termed as public pathway. That argument is countered by the learned counsel for the petitioners stating that the fact that the officials can enter into a compound for doing or discharging their functions as a public servant will not alter a private pathway into a public pathway. It was not stated in the complaint or in Annexure A4 that the pathway in question is a public Crl.M.C. No.3428 of 2011 -: 4 :- pathway. Therefore, it is difficult to hold that the materials made available would disclose the commission of offence under Sec.431 of IPC. 3. The other offence alleged against the petitioners is under Sec.294(b) IPC. The learned counsel submits that it is easy to incorporate some obscene words to allege that the accused used such obscene words. It was alleged that when the 2nd respondent questioned the petitioners why the cow was tied at that place, the petitioners used obscene words against the complainant. The learned counsel for the petitioners would submit that to attract offence under Section 294(b) IPC, it must be alleged that the accused uttered obscene words in or near any public place to the annoyance of others. Though the words alleged to have been used may be obscene since it was not alleged that it was uttered in or near any public place, it may not attract the offence under Section 294(b) IPC, it is argued. But the learned counsel for the complainant would submit that Crl.M.C. No.3428 of 2011 -: 5 :- since the word or expression used is “in or near any public place”, it need not be done in any public place itself. But to say that uttering was made in or near any public place, there is no material before court. As stated earlier, the scene mahazar shows that there is only a pathway leading to one or two houses. Since what is required to shown prima facie is that the accused had uttered obscene words and since that fact is gatherable from the final report filed, then the only other question would be whether it was done in or near a public place. For the purpose of attracting Section 431 IPC, it is found that it is not a public road or public pathway. Since the place wherefrom the obscene words were uttered can be in or near a public place, it cannot be said that the offence under Section 294(b) is not made at all. In any event, that is a disputed fact which can only be decided based on the evidence adduced in the case. In other words, so far as Section 294(b) is concerned, the argument made by the learned counsel for the accused, that Crl.M.C. No.3428 of 2011 -: 6 :- there are no materials at all cannot be accepted at this stage. Whether it was done in or near a public place is something to be proved in evidence. It is a question of fact. In the result, this Crl.M.C. is allowed in part. Further proceedings as against the petitioners in CC No.571 of 2011 on the file of JFCM Court, Ramankari in so far as it relates to the offence under Section 431 IPC is quashed. The request to quash the charge under Section 294(b) IPC is rejected. N.K.BALAKRISHNAN, JUDGE. Jvt/srd