IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 Crl.MC.No. 384 of 2011() ---------------------------------- C.C.NO.889/2010 OD JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY ---------------------------------------- PETITIONER(S): ACCUSED --------------------------------------- GARGI BANERJEE, D/O.BISWANATH BANERJEE, LAKSHMI NIVAS, EDAKKUNNI VILLAGE, OLLUR P.O., THRISSUR TALUK, THRISSUR DISTRICT. BY ADV. SMT.A.C.DEVY SRI.M.J.POLLY RESPONDENT(S): COMPLAINANTS --------------------------------------------------- 1. GEORGE, S/O.PAILAPPAN, KALLELI HOUSE, KUTTIKKAD, PARIYARAM VILLAGE, THRISSUR DT., PIN 680 721. 2. SUB INSPECTOR OF POLICE, CHALAKUDY POLICE STATION, CHALAKUDY, THRISSUR DISTRICT, PIN 680 307. 3. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. R2 & R3 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/02/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P. JOSEPH, J. ------------------------------------------------ Crl. M.C. No. 384 of 2011 ------------------------------------------------ Dated this the 16th day of February, 2011 O R D E R Petitioner is accused in crime No.732/10 of Chalakkudy police station and C.C.No.889/10 of the Court of learned Judicial First Class Magistrate, Chalakkudy for offences punishable under Section 294 (b) and 447 of Indian Penal Code. Case is that on 29.06.2010 at about 1.30pm petitioner trespassed into the courtyard of first respondent (her father in law), uttered obscene words and committed offence as alleged. Petitioner contented that the final report and cognizance taken against her are not correct since on the materials on record no offence is made out. I have heard the learned Public Prosecutor also. 2. According to the petitioner, she was summoned to the house of first respondent and, she was assaulted by the first respondent for which the police has registered crime No. 732/2010. It is pointed out by learned counsel that to attract the offence under Section 294(b) of the Crl. M.C. No. 384 of 2011 2 Penal code the alleged obscene words must be uttered at a public place and at any rate, materials produced by prosecution do not say what exactly are obscene words allegedly used by the petitioner. It is also submitted that no offence of trespass is involved, since the petitioner is the daughter-in law of first respondent and is entitled to go to the house of first respondent. 3. So far as the contention relating to offence under Section 294(b) the code is concerned it is sufficient that obscene words are uttered at or near a public place. Copy of the mahazar shows that the alleged place of occurrence is near to the public road. But, it is seen that none of the witnesses have referred to the words actually spoken by the petitioner. This court in P.T.Chacko Vs. Nainan Chacko (1967 KLT 799) and Chacko George Vs. State of Kerala (1968 KLT 219) has stated the test of obscenity. As the words allegedly stated by the petitioner are not disclosed, it is not possible to say whether or not those words passed the test of obscenity. Hence it could not be stated that petitioner uttered obscene words. Crl. M.C. No. 384 of 2011 3 Witnesses cannot be permitted to improve their reversion in court at the trial. Hence, charge against petitioner for offence under Section 294 (b) of Indian Penal Code cannot stand. 4. So far as the allegation regarding trespass is concerned it is a matter for evidence whether petitioner had a right of entry as she was summoned there and assuming so, she had a right to remain in the said property. To attract the offence of trespass, it is sufficient that the offender had the intention or having entered the property caused annoyance to the person in possession of the property. Whether conduct of petitioner caused annoyance to the first respondent is a matter for evidence. Hence request to quash the charge under Section 447 of the penal code cannot be allowed. Resultantly, this petition is allowed in part to the extent that charge in the final report in crime No.732/10 of Chalakkudy police station, cognizance taken and proceeding in C.C.No. 889/10 of the Court of Judicial First Class Magistrate, Chalakkudy to the extend it Crl. M.C. No. 384 of 2011 4 concerned offence under Section 294(b) of Indian Penal Code would stand quashed. THOMAS P. JOSEPH, JUDGE. rkc