IMPORTANT POINT
The vague allegation or general statement that there was utterance of obscene words in the FIR is not enough to constitute an offence under Section 294(b) of the Indian Penal Code.

ORDER

Annie John, J.

The petitioner challenges Annexure A2, final report filed against him alleging offences punishable under Sections 294(b) and 506(1) of the Indian Penal Code and Section 120(o) of the Kerala Police Act.

2. The case of the petitioner is as follows:

The de facto complainant, who was an employee in the company run by the petitioner, could not perform well in the company and therefore, is having no other option than terminating him from service after complying with all the legal requirements. However, it led to an animosity towards the petitioner. He started filing fictitious complaints against the petitioner and the petitioner’s company. As a result of the animosity, an FIR was lodged against the petitioner by the de facto complainant on 04.10.2017 alleging that the petitioner called the de facto complainant over the mobile phone on 30.09.2017 and verbally abused him and also intimidated and threatened him. Accordingly, Annexure A1 FIR in Crime was registered under Sections 294(b) and 506(i) of IPC and Section 120(o) of the Kerala Police Act. On the strength of Annexure A1, the Police filed a final report before the Judicial First Class Magistrate Court-II, Ernakulam.

3. Section 294(b) of IPC reads thus:

“294. Obscene acts and songs.—Whoever, to the annoyance of others—(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.”

4. In order to secure a conviction, the provisions of Section 294 of IPC 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 near any public place or that it causes no annoyance to others, no offence is committed.

5. The learned counsel for the petitioner contended that Annexure A2 final report is an abuse of process of court and proceeding with the same would be a waste of precious judicial time as the same is bound to end up in an acquittal, that the final report would show that the allegations are inherently false and too trivial for a prosecution to be lodged, and that none of the ingredients of the offences alleged are present in the final report. The de facto complainant died on 17.02.2019. According to the learned counsel, the proceedings initiated against the petitioner is unsustainable. He has relied on the decision in Preethimon v. State of Kerala (2008 (2) KLT 666), wherein it is held that a vague or general statement in the FIR that the accused uttered obscene words is not enough to constitute an offence under Section 294(b) of the IPC and that it is necessary to state the words uttered by the accused.

6. On a perusal of Annexure A2, it would reveal that none of the ingredients under Section 294(b) of the Indian Penal Code is attracted. The vague allegation or general statement that there was utterance of obscene words in the FIR is not enough to constitute an offence under Section 294(b) of the Indian Penal Code. In order to attract Section 294(b) IPC, the place of occurrence should be a “public place” or near a “public place”. The allegation against the petitioner is that he has threatened the victim and uttered obscene words by using mobile phone and that will not tantamount to prove that he called obscene words in a public place or near a public place. So, the ingredients as contemplated under Section 294(b) of the IPC is not attracted. The same view has been reiterated in Pawan Kumar v. State of Haryana [(1996) 4 SCC 17: (1996) 4 Supreme 764]. The learned counsel has also relied on the decisions in Dhanisha v. Rakhi N. Raj [2012(2) KLT 55] and P.T. Chacko v. Nainan Chacko [1967 KLT 799].

7. As far as