IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, J.
ADV. PREETHA K.K. – Petitioner
Versus
STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – Respondent
CRL M.C. No. 6748 of 2014
Decided On : 08-04-2016
Criminal Law - Criminal Trial - Indian Penal Code, 1860 - Sections 292, 293 and 294 - Offence of Sale of obscene books, etc to young persons - Obscene of Acts and Songs - Obscenity should be determined from the point of view of the average person and in the context of contemporary mores and national standards, as concept of obscenity keeps on changing with social values - Held, There is clear cut difference between "vulgarity" on the one hand and "obscenity" on the other hand and the vulgarity is not necessarily obscene - A photograph of a nude/semi-nude woman by itself cannot be obscene and obscenity would depend upon particular posture and background in which nude woman is depicted and looked at a whole, it should necessarily tend to deprave and corrupt the mind and excite lustful sexual passions so as to constitute the offence of obscenity under Section 292 of the I.P.C.
1. The petitioners herein are accused in the impugned FIR No. 1215/2014 of the Ernakulam Central Police Station (referred to in Anx.I), registered offences punishable under Secs.143, 147, 149, 238 & 294(a) of the I.P.C. r/w Sec.118(a) of the Kerala Police Act, 2011. The Police, after investigation has filed the impugned Anx.1 final report/ charge-sheet for the above-said offences, which has been taken into file as Calendar Case, C.C.No.1127/2014 on the file of the Judicial First Class Magistrate's Court-II, Ernakulam. The gist of the allegations therein is that the accused persons, who are women, by standing at Shanmugham Road at Ernakulam, in front of Swapnil Flat, had raised slogans against the atrocities of offences committed towards women and that they had exposed nudity and had caused obstruction to the commuters and vehicles and thereby committed the above offences, etc. It is the case of the petitioners that in June, 2014, at Badaol in the State of Uttar Pradesh, two teenaged girls were raped and killed and their dead bodies were hanged on the branch of a tree. The law enforcing agency/Police machinery had remained mute spectators because the culprits of the heinous crime included Police and from members of the community of that of the Chief Minister of that State and that on 4th June, 2014 at 4.15 p.m. the women accused concerned led by two prominent lawyers of this Court had assembled in front of the Swapnil Flat at Shanmugham Road, covering their normal dresses with shawls and having written slogans against atrocities of serious heinous offences committed against women. That the accused were taken into custody and brought to the Central Police Station, Ernakulam and the impugned crime was registered and that they were released on bail, etc. Anx.II is the photographs of the scene in question, which is said to have been circulated in media as well as social media and it shows that the women accused concerned had covered themselves with shawls and various slogans were written in the said shawls. According to the petitioners, none of the offences alleged in the impugned Anx.I final report/charge sheet is borne in the facts and circumstances of this case. It is pointed out that the respondent Police authorities themselves have meticulously detailed out in the impugned Anx.I proceedings, more particularly in column No.12 of Anx.I(3), Anx. I(7), Anx.I(8) given on pages 6, 10, 11 etc. of the paper book, that the women accused concerned in this case were primarily involved in the activity of demonstrating and agitating before the public against the heinous crimes committed against women, etc. It is urged by the petitioners that to constitute offence Sec.118(a) of the Kerala Police Act, one should be found in a public place in an intoxicated manner or rioting condition or incapable of looking after himself, for which five elements of unlawful assembly to commit riot as defined under Sec.147 read with Sec.141 of the I.P.C. are to be made out in the light of provisions contained in Sec.2(2) of the Kerala Police Act, 2011. That to constitute riot, the five elements envisaged under Sec.141 read with Sec.147 of the I.P.C. are essential and even going by the aforestated versions projected in the impugned Anx.1 proceedings as stated above, the common object of the assembly is not the object assigned and envisaged under the five clauses under Sec. 141 as specific case in the impugned Anx.I proceedings is that the women accused concerned were agitating against the sexual assault and other heinous offences committed against women and teenaged girls. Hence it is urged that the entire offence dealing with unlawful assembly and rioting has no foundation or legs to stand. That for the offence under Sec.283 of the I.P.C. there should be necessarily evidence as to obstruction caused to any person in any public way and that in anyone of the statements or materials referred to in the impugned Anx.I proceedings there is not even a remote
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