A. Badharudeen, J
1. The sole accused in C.C.No.2565/2020 on the files of Judicial First Class Magistrate Court, Thalassery, has filed this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure, seeking quashment of Annexure A1 complaint, Annexure A2 FIR, Annexure A3 final report and all further proceedings in C.C.No.2565 of 2020 on the files of Judicial First Class Magistrate Court, Thalassery, in Crime No.918 of 2020 of Thalassery Police Station, Kannur.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents.
3. As per the prosecution allegation, the defacto complainant, who is a Nun under the Thalassery Diocese, while working as Coordinator of KCBC Anti Liquor Forum as part of a protest against liquor shops, on 11.05.2020, lodged complaint stating that the accused herein published photograph of the defacto complainant morphing the phraseology in the placard using insulting words such as പഠിപ്പിക്കുക പണിക്കു വിടുക പുര ോഹിതന്റെ വെവപ്പാട്ടിയാക്കരുത് യേശുവിനു മണവാട്ടിയില്ലായിരുന്നു" through Facebook as well as WhatsApp and thereby committed offences punishable under Sections 294(b) and 509 of the Indian Penal Code as well as Section 120(o) of the Kerala Police Act.
4. The learned counsel for the petitioner would submit that the allegations, if taken together, then also none of the offences alleged by the prosecution is made out. According to him, this is a case where quashment sought for is liable to succeed.
5. Whereas the learned Public Prosecutor read out the essentials to constitute offences punishable under Section 294(b), 509 IPC and Section 120 of the K.P Act and submitted that quashment sought for cannot be allowed.
6. During investigation, the Investigating Officer collected the materials supporting the prosecution case. Coming to the offences alleged herein, one among the offences is under Section 294(b) of IPC. 294(b) provides that whoever, to the annoyance of others, sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished. In the decision reported in [(1996) 4 SCC 17 : 1997 SCC (Cri) 583], Pawan Kumar v. State of Haryana, it is held that in order to secure a conviction, the provisions of Section 294, I.P.Code require two particulars to be proved by the prosecution, namely: (i) the offender has done any obscene act in any public place or has sung, recited or uttered any obscene song or word in or near any public place; and (ii) has so caused annoyance to others. If the act is not obscene, or is not done in any public place, or the song recited or uttered in or neaer any public place or that it causes no annoyance to others, no offence is committed. Under Section 509 of IPC, whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, is an offence. Section 120 of the Kerala Police Act lays down the penalty for causing nuisance and violation of public order, where any person causing through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, e-mail or through a messenger.
7. While addressing the essentials to constitute Section 294(b), it is relevant to extract Section 294(b) of IPC as under:
“S. 294. Obscene acts and songs.
Whoever, to the annoyance of others:
(a) xxxx xxxx xxxx
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
8. In the decision reported in [(1996) 4 SCC 17], Pawankumar v. State of Haryana & anr., the Apex Court held that in order to secure a conviction the provision of Section 294(b) IPC requires two particulars to be proved by the prosecution, i.e (i) the offender has done any obscene act in any public place or has sung, recited or uttered any obscene songs or words in or near any public place; and (ii) has so caused annoyance to others. If the act complained of is not obscene, or is not done in any public place, or the song recited or uttered is not obscene, or is not sung, recited or uttered in or near any public place, or that it causes no annoyance to others, the offence is not committed.
In the same decision, the Apex Court held that the courts should be sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294 IPC on today’s society and its standards and its changing views of obscenity.
9. Further, in the decision reported in Basil v. State of Kerala ‘s case (supra), in para.29, 30 and 31 this Court observed as under:
“29. The expression ‘public place’ is not defined in the Criminal Procedure Code or in the Penal Code. It is not defined in NDPS Act also. In Queen v. Wellard [(1884) 14 QBD 63, Grose, J. laid down that a public place “is a place where the public go, no matter whether they have a right to go or not”, and this definition has been accepted by subsequent judicial decisions both in India and in England. A place in order to be public, must, therefore, be open to the public i.e. a place to which the public have access by right, permission, usage or otherwise.
30. The Apex Court in Satvinder Singh @ Satvinder Singh Saluja and others v. State of Bihar [2019 KHC 6613 : (2019) 7 SCC 89] held that, when the word ‘place’ includes vehicle, the word ‘public place’ has to be interpreted in the same light. While analysing the definition of ‘public place’ in Section 2(17A) of the Bihar Excise (Amendment) Act, 2016, the Apex Court observed that, when a private vehicle is intercepted when it was on the public road, it will come under the definition of a public place. When a private vehicle is passing through a public road, it cannot be accepted that public have no access. It is true that public may not have access to private vehicles, as a matter of right, but definitely public have opportunity to approach the private vehicle while it is on the public road. So, a private vehicle on public road was considered to be public place under Section 2(17A) of the Bihar Excise (Amendment) Act, 2016.
31. The word ‘access’ is defined in Black’s Law Dictionary in the following words:
“Access: - A right, opportunity or ability to enter, approach, pass to and from, or communicate with access to the courts”.
10. Concluding the discussion, it is held that as regards to obscene act, the term public place used in Section 294(a) of the Indian Penal Code, is much wider in its sweep as it encompasses even those areas which are in the vicinity of public place, meaning thereby that if the obscene words uttered in a `public place’ is heard by someone who is in the vicinity of the public place, so as to cause annoyance to them. In such cases, offence under section 294(b) of Indian Penal Code would attract. The term `in or near public place’ referred in Section 294(b) of the Indian Penal Code does not limit its orbit in absolute public place alone. In order to secure a conviction the provision of Section 294(b) IPC requires two particulars to be proved by the prosecution, i.e (i) the offender has done any obscene act in any public place or has sung, recited or uttered any obscene songs or words in or near any public place; and (ii) has so caused annoyance to others. If the act complained of is not obscene, or is not done in any public place, or the song recited or uttered is not obscene, or is not sung, recited or uttered in or near any public place, or that it causes no annoyance to others, the offence is not committed. Thus the offence is made out, when an obscene act is committed to the annoyance of others in any public place in or near any public place.
11. Coming to Section 509 of IPC, it is provided that whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman [shall be punished with simple imprisonment for a term which may extend to three years and also with fine].
12. In the decision reported in [2024 KHC OnLine 584 : 2024 KHC 584 : 2024 KER 49601 : 2024 KLT OnLine 1799 : 2024 SCC OnLine Ker. 3595], XXXX . State of Kerala, this Court considered the essentials to constitute an offence punishable under Section 509 of IPC and held in paragraph 11 as under:
“11. In the decision in Joseph M.V. v. State of Kerala reported in [2024 KHC OnLine 440 : 2024 KER 36566], in paragraph Nos.11 to 13, this Court held as under:
“11. In order to bring home an offence punishable under S.509 IPC, the ingredients are; utterance of any word, makes any sound or gesture, or exhibits any object, with an intention to insult the modesty of a woman, or with intention to intrude upon the privacy of such a woman.
12. Coming to the definition of the word 'modesty', the same has not been defined in the Indian Penal Code. So it is worth to look into its dictionary meaning. As per Shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct". The word 'modest' in relation to woman is defined in the abbove dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". Webster's Third new International Dictionary of the English Language defines modesty as "freedom from coarseness, indelicacy or indecency' a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1993 Ed) the meaning of the word 'modesty' is given as "womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions".
13. To sum up, mere utterance of unpleasant or abusive words without an intention either to insult the modesty of the woman or to intrude upon the privacy of such woman would not attract offence under S.509 of IPC. Here the allegation is confined to use of a proverb which contains an abusive element, as extracted herein above. Merely because the accused made a comment/proverb which contains an abusive element, in reply to a humiliating comment made by the defacto complainant, stating that the sim seemed like one bitten by a dog, it could not be held that the accused either insulted the modesty of a woman or intruded on her privacy.”
13. Coming to Section 120(o) of K.P Act, in the decision reported in[2024 (5) KHC 22], Raveendran V.K v. State of Kerala & anr., this Court held in paragraphs 15 and 17 as under:
15. The next point to be decided is; whether the petitioner herein committed offence under Section 120(o) of the K.P Act? Section 120 of the K.P Act provides as under:
“120. Penalty for causing nuisance and violation of public order.—
If any person,—
xxxx xxxx xxxx xxxx xxxx
(o) causing, through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, e-mail or through a messenger;
xxxx xxxx xxxx"
16. xxxxxxx
17. The question poses is, effecting publication or 2024:KER:62751 communication stating that a person, who is alive, as dead, would amount to a nuisance to the said person. On reading the definition of the term `nuisance’, the same means, a person or thing causing inconvenience or annoyance. Otherwise, the same is an act, which is harmful or offensive to the public or a member of it and for which there is a legal remedy. Coming to the term `annoyance’, the same is the feeling or state of being annoyed or irritated. It is difficult to say that once a communication is made so as to make a person a feeling or a state of being irritated, the same is not an annoyance or nuisance for the purpose of Section 120(o) of the K.P Act. If so, the publication effected by the petitioner herein would definitely attract an offence punishable under Section 120(o) of the Kerala Police Act, prima facie.
14. Going by the ratio in Raveendran V.K v. State of Kerala & anr. (supra) and the ingredients of Section 120(o) of the K.P Act, if any person causing inconvenience or annoyance through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, e-mail or through a messenger, is an offence. Therefore, in the facts of this case, Section 120(o) of the K.P Act also squarely would apply.
15. In the decision in Vineet Kumar & Ors. v. State of U.P & anr., reported in [2017 KHC 6274 : AIR 2017 SC 1884 : 2017 (13) SCC 369], the Apex Court held in paragraph 39 that, inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in [AIR 1960 SC 866], State of Haryana v. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal (supra), which is to the following effect:
“(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
16. Similarly, in another decision in Mahmood Ali v. State of U.P. reported in [2023 KHC 7029 : 2023 KHC OnLine 7029 : 2023 LiveLaw (SC) 613 : 2023 KLT OnLine 1751 : AIR 2023 SC 3709 : AIR OnLine 2023 SC 602 : 2023 CriLJ 3896], the Apex Court while considering the power under Section 482 Cr.P.C, in paragraph 12 held that, ‘whenever an accused comes before the Court invoking either the inherent powers under S.482 of the Code of Criminal Procedure or extraordinary jurisdiction under Art.226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under S.482 of the Cr.P.C. or Art.226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation / registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.’
17. Therefore, the legal position is clear that quashment of criminal proceedings can be resorted to when the prosecution materials do not constitute materials to attract the offence alleged to be committed. Similarly, the Court owes a duty to look into the other attending circumstances, over and above the averments to see whether there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding instituted maliciously with ulterior motives. Once the said fact is established, the same is a good reason to quash the criminal proceedings.
18. In the instant case the allegation of the prosecution is that the defacto complainant, who is a Nun under the Thalassery Diocese, while working as Coordinator of KCBC Anti Liquor Forum as part of a protest against liquor shops, on 11.05.2020, lodged complaint stating that the accused herein published photograph of the defacto complainant morphing the phraseology in the placard using insulting words such as “പെ ൺ മക്കളെ പഠിപ്പിക്കുക പണിക്കു വിടുക പുര ോഹിതന്റെ വെവപ്പാട്ടിയാക്കരുത് യേശുവിനു മണവാട്ടിയില്ലായിരുന്നു" through Facebook as well as WhatsApp.
19. Having noticed the facts of the case, it is discernible that the prosecution case is specifically made out, prima facie, to attract the offences alleged to be committed. Hence this Crl.M.C fails.
20. In the result, this Criminal Miscellaneous Case stands dismissed.
21. Interim order, already granted shall stand vacated. Registry is directed to forward a copy of this order to the jurisdictional court for information and for further steps.
