IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 Crl.MC.No. 98 of 2011() ----------------------------------- (CRIME NO.1269/2010 OF KODUNGALLOOR POLICE STATION, THRISSUR DISTRICT) ....... PETITIONER(S): ACCUSED: ----------------------------------------- AKBAR, S/O. ABDUL KAREEM, KUNNATH HOUSE, KOZHIKKADA DESOM, PULLOOT, KODUNGALLOOR. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.1269/2010 OF KODUNGALLOOR POLICE STATION, THRISSUR DISTRICT). 2. K.M.DEVASYA, C.I. OF POLICE, KODUNGALLOOR-680 664. R1 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.98 of 2011 ==================================== Dated this the 07th day of March, 2011 O R D E R Respondent No.2 is served but there is no appearance. 2. Petitioner is the accused in Crime No.1269 of 2010 of Kadungallur Police Station and S.T. No.6284 of 2010 of the court of learned Judicial First Class Magistrate, Kodungallur for offence punishable under Section 294(b) of the Indian Penal Code (for short, “the IPC”). Case is that on 20.09.2010 at about 8.50 p.m. at a public place petitioner insulted de facto complainant by calling him the word referred to in the final report and asking whether respondent No.2 shall not salute him (petitioner being a Government Pleader). Learned counsel contended that no offence under Sec.294(b) of the IPC is made out against petitioner since the word allegedly used by petitioner does not satisfy the test of 'obscenity' as laid down by this Court in P.T.Chacko v. Nainan Chacko (1967 KLT 799) and Chacko George v. State of Kerala (1968 KLT 219). Reliance is also placed on the decision in Sangeetha Lakshmana v. State of Kerala (2008 [2] KLT 745). I have heard the learned Public CRL.M.C. No.98 of 2011 -: 2 :- Prosecutor also. 3. The test of obscenity to attract Sec.294(b) of the IPC is laid down in the decisions in P.T. Chacko and Chacko George's cases (supra). Going by the said decisions the test of obscenity is whether tendency of the matter charged as obscene is to deprave and corrupt those whose mind are open to such immoral influence. I have gone through the final report and considered the question whether the expression allegedly used by the petitioner against second respondent passed that test. On considering the expression I am unable to think that it satisfied the test of obscenity. Hence no offence under Sec.294(b) of the IPC is made out. I am however not going into the question whether the word allegedly used made out any other offence. Criminal Miscellaneous Case is disposed of holding that the material on record and the final report in Crime No.1269 of 2010 of the Kodungallur Police do not disclose offence under Sec.294 (b) of the IPC and hence the cognizance taken by the court of learned Judicial First Class Magistrate, Kodungallur and all further proceedings in S.T. No.6284 of 2010 to the extent it concerned offence under Sec.294(b) of the IPC are illegal. THOMAS P. JOSEPH, JUDGE. vsv