IMPORTANT POINTS
No allegation anywhere in the FIS as to what exactly was the alleged obscene words. It is now well settled by a series of rulings as in Latheef v. State of Kerala [2014 (2) KLT 987], P.T.Chacko v. Nainan Chacko [1967 KLT 799] and Sangeetha Lakshmana v. State of Kerala [2008 (2) KLT 745], that abusive or humiliating or defamatory words will not in as such amount to obscenity as defined in law and that even if the words used by accused are in fact highly abusive, humiliating and defamatory in nature. In order to make such words obscene, punishable under Sec.294(b) of the IPC, it must satisfy the definition of obscenity as contained in Sec.292 of the IPC. It has been held that to make obscene, the alleged words must involve some lascivious elements, arousing impure sexual thoughts or feelings or words, and must have the effect of depraving persons and defiling morals by sex appeal or lustful desires.

ORDER :

1. The prayer in Crl.M.C. No. 6922/2019 is to quash the entire proceedings emanating from the impugned criminal proceedings in respect of Crime No.618/2019 of Fort Kochi Police Station. Crl.M.C. No. 3790/2019 has been filed by the very same accused and in the said petition he challenges the interlocutory order passed by the court below concerned, rejecting the plea of the petitioner to get interim custody of the seized mobile phone. As the matters are connected, these cases are disposed of on the basis of this common order.

Crl.M.C. No. 6922 of 2019

2. The prayer in the above Crl.M.C. No. 6922/2019 is as follows:

“i. Quash Annexure A-1 FIR dated 13/04/2019 in Crime No. 618/2019 of Fort Kochi Police Station and all further proceedings pursuance to the same; &

ii. Issue such other orders as this Hon'ble Court deem just and proper.”

3. Heard Smt.Amrin Fathima, learned counsel appearing for the petitioner accused and Sri.Amjad Ali, learned Prosecutor appearing for the 1st respondent State. Though the 2nd respondent lady defacto complainant has been duly served, there is no appearance for that party.

4. The petitioner has been arrayed as the sole accused in the instant Anx.A1 Crime No.618/2019 of Fort Kochi Police Station, which has been registered for offences punishable under Secs.354D & 294(b) of the IPC. The said crime has been registered on the basis of the FIS given the 2nd respondent lady defacto complainant on 13.4.2019 at about 7.30 pm in respect of the alleged incidents which have happened on the same day (13.4.2019) at about 3.45 pm. The police after investigation has now filed Anx.A2 final report/charge sheet in this case and now the case is pending as C.C. No.1603/2019 of the JFCM, Mattancherry.

5. The prosecution case in short is that, on 13.4.2019 while the 2nd respondent lady defacto complainant aged 39 years had reached near St.Francis, Fort Kochi, the petitioner accused aged 49 years had followed her and taken her photographs without her consent and when she objected to her he uttered some obscene and foul words to her, etc.

6. The allegation against the petitioner is that he has committed offences as per Secs.354D & 294(b) of the IPC. The main contention raised by the petitioner is that, even going by the admitted prosecution allegations the abovesaid offences are not disclosed and therefore the very initiation and continuance of the very criminal proceedings is an abuse of the process of Court, as it is a futile exercise since it would lead to the acquittal of the accused, and that this Court may quash the impugned criminal proceedings.

7. According to the petitioner he is a professional photographer and has taken so many short films including his recent short film called “Prathi Pravasi Aanu”. That the petitioner is having lot of interest in film making, and now is committed to new film project called “Kaliyarangu” directed by famour director Sri.Madhupal, and the main role in the said film “Kaliyarangu” is enacted by the famous film actor Sri.Biju Menon, etc. That while making the film “Kaliyarangu”, the petitioner along with his colleague used to visit several places and capture locations in mobile phone which the petitioner thinks suitable for film locations. That in the month of April, 2019, he had visited Fort Kochi, and was looking for suitable film location and was engaged in the said activity. It is pointed out that during such time the petitioner would have taken the photograph of 2nd respondent.

8. It is the specific allegation of the 2nd respondent that the petitioner had taken her photograph without her permission, and when she objected the petitioner had used obscene words, etc. It is pointed out that the abovesaid allegations are factually incorrect and further that, even if it is assumed that the entirety of prosecution case are correct, still it will not make out both the alleged offences. It is also pointed out that the offence of stalking would necessarily require a series or repeated acts and s