IMPORTANT POINT
Obscenity – In order to satisfy definition of obscenity to attract Section 294(b) of IPC, words uttered must be capable of arousing sexually impure thoughts in minds of its hearers – Quashment of criminal proceedings can be resorted to when prosecution materials do not constitute materials to attract offence alleged to be committed.

ORDER

A. Badharudeen, J.—This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (‘Cr.P.C’ for short) by the sole accused in C.C.No.1275/2023 pending before the Judicial First Class Magistrate Court-I, Perumbavoor, with the prayers to allow this Criminal Miscellaneous Case and quash Annexure 1 final report against the petitioner in the above case.

2. Heard the learned counsel for the petitioner/accused and the learned Public Prosecutor in detail. Perused Annexure 1 final report and the relevant documents.

3. In this matter the prosecution allegation is that at about 1.30 p.m on 17.02.2021, the accused, who is the employer of the defacto complainant, abused her at the office cabin arose out of animosity since she joined the labour union and persuaded other staff to join the trade union.

4. The learned counsel for the petitioner argued that offence under Section 294(b) of the Indian Penal Code (‘IPC’ for short hereafter) would not attract in the facts of this case. In this connection, he has placed decision of the Allahabad High Court reported in [1962 SCC OnLine All 170 : MANU/UP/0034/1963], Zafar Ahmad Khan v. The State, wherein Allahabad High Court held that the word ‘obscene’ would have to be judged on the facts of each case where in the context of the surroundings to find out whether the questioned act is ‘obscene’ or not. It was further observed that the words were likely to express and personate to the mind of the hearers, including the girls, something which delicacy, purity and decency forbade to be expressed. The girls, as also others who were present, must have suffered a moral shock to hear such sensuous words addressed to them by an utter stranger.

5. He has also placed another decision of the High Court of Mysore reported in [1972 SCC OnLine Kar 250 : MANU/KA/0163/1972], Patel H.M Malle Gowda v. The State of Mysore. In the said case, the Mysore High Court held that annoyance is generally associated with the mental condition, and for that reason it is difficult to prove as a fact by positive evidence. In almost all the cases it is to be inferred from proved facts. In the instant case the words attributed to the petitioner are clearly abusive and obscene, especially when directed against a doctor and a public servant at that. The fact that the doctor and some other members of the public were impelled to complain about it, is sufficient indication of the fact that they were all annoyed by the use of such words in a public place. In my view these circumstances are sufficient to establish the ingredient relative to annoyance contained in Section 294 IPC.

6. He has also placed decision of this Court in Crl.M.C. No.2322/2018 dated 20.10.2022 wherein this Court considered the question as to whether consulting room of the petitioner at TM Hospital, Chavakkad, is a public place or near a public place. In paragraphs 7 and 8 this Court observed as under:

“7. In order to attract Section 294(b) of IPC, the following two ingredients are to be satisfied. (i) The offender 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 is not in or near any public place or that it caused no annoyance to others, no offence is committed.

8. Admittedly, the place of occurrence is the consulting room of the petitioner at the T.M. Hospital, Chavakkad. It can never be termed as a public place or near public place. That apart, in order to satisfy the definition of obscenity to attract Section 294(b) of IPC, the words uttered must be capable of arousing sexually impure thoughts in the minds of its hearers. [See Sangeetha Lakshmana v. State of Kerala (2008 (2) KLT 745)]. There is no case for the prosecution that the words allegedly uttered by the petitioner aroused sexually impure thoughts in the minds of the hearers. In these circumstances,