The petitioners are the accused persons in C.C.No.555 of 2002, on the file of the Court of the Judicial Magistrate of the first class II, Kanjirapally. The offences alleged against them are under Sections 448, 294(b) and 506(1) read with Section 34 of the Indian Penal Code. On appearance before the court below, they filed an application under Section 258 of the Code of Criminal Procedure, which was dismissed by the trial court and the order of the trial court was confirmed in Crl.R.P.No.18 of 2003, on the file of the Court of Session, Kottayam. The prayer in the Crl.M.C is to quash Annexure-B order in Crl.R.P.No.18 of 2003 as well as to quash all the proceedings in C.C.No.555 of 2002, on the file of the Court of the Judicial Magistrate of the first class II, Kanjirapally.

2. It is submitted by the counsel for the petitioner that even if all the allegations contained in Annexure-A FIR are taken as true, no offence is made out against the petitioners. Accused No.1 is an advocate while accused No.2 is a member of the panchayat. It is stated in Annexure-A FIR that the accused came to the police station and enquired about the petition submitted by Soosan, the wife of the second accused and in respect of which Crime No.206 of 2001 was registered. The further allegation in the FIR is as follows:

3. Sri. K. Ramakumar, learned counsel appearing for the petitioners, submitted that the allegations made in the FIR do not constitute an offence under Section 294(b) of the Indian Penal Code. He relied on the decisions in Santhilal v. Parameswaran Pillai (1988 (2) KLT Short Notes Case No.112 at page 74), P.T.Chacko v. Nainan Chacko (1967 KLT 799), Chacko George v. State of Kerala (1968 KLT 219) and Ranjit V.Udeshi v. State of Maharashtra (AIR 1965 SC 881) in support of this contention.

4. Section 294 of the Indian Penal Code reads as follows:

"294. Obscene acts and songs:-- Whoever, to the annoyance of others –

(a) does any obscene act in any public place, or

(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."

In order to constitute an offence under Section 294(b), the accused must sing, recite or utter any obscene song, ballad or words, in or near any public place. The question is whether the words allegedly uttered by the accused would constitute obscene words.

5. In P.T.Chacko v. Nainan Chacko (1967 KLT 799), Justice K.K.Mathew (as His Lordship then was) considered the question whether the words " " uttered by the first accused would constitute an offence under Section 294(b) and whether those words would be obscene. In paragraph 5 of the judgment it was held thus:

"5. The only point argued was that the 1st accused has not committed an offence punishable under S.294(b) IPC, by uttering the words above-mentioned. The courts below have held that the words uttered were obscene and the utterance caused annoyance to the public. I am not inclined to take this view. In The Queen v. Hicklin 1868-3-Q.B.360 at 371 Cockburn C.J., laid down the test of 'obscenity' in these words:

".... the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences."

This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in Ranjit D.Udeshi v. State of Maharashtra AIR, 1965 SC 881 at 887. In Samuel Roth v. U.S.A. (1957) 354 U.S.

476, Chief Justice Warren said that the test of 'obscenity' is the "substantial tendency to corrupt by arousing lustful desires". Mr.Justice Harlan observed that in order to be 'obscene' the matter must "tend to sexually impure thoughts". I do not think that the words uttered in this case have such a tendency. It may be that the words are defamatory of the complainant, but I do not think that the words are 'obscene' and