IMPORTANT POINT
The judgment emphasizes the importance of establishing the intent behind the actions alleged in offenses related to obscenity and insult to modesty, highlighting the need for prima facie evidence to warrant trial.

ORDER :

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, to quash Annexure 10 Final Report and all further proceedings against the petitioner herein in S.C.No.134/2021 on the files of the Special Court for the Trial of Offences under the Protection of Children from Sexual Offences Act, (for short ‘the PoCSO Act’ hereinafter), Kalpetta, arose out of Crime No.784/2020 of Panamaram police station, Wayanad. The petitioner is the sole accused in the above case.

2. Heard the learned counsel for the petitioner, the learned counsel appearing for the de facto complainant and the learned Public Prosecutor, in detail.

3. I have perused the case diary including the statements of witnesses.

4. The prosecution allegation is that, at about 8.30 a.m. on 17.11.2020, while the victim was sweeping the courtyard of her house, the accused, who was returning to his house from Anjukunnu, stopped in front of the courtyard of the victim’s house and made hissing sounds to invite the attention of the victim and then, uttered obscene words to the victim. This is the base on which, the prosecution alleges commission of offences punishable under Sections 294(b) and 509 of the Indian Penal Code (for short, ‘the IPC’ hereinafter) and Section 12 r/w Section 11(i) of the PoCSO Act, against the accused.

5. The learned counsel for the petitioner argued to convince this Court that, no materials prima facie attracting commission of offences punishable under Sections 294(b) and 509 of the IPC and Section 12 r/w Section 11(i) of the PoCSO Act, are made out. He read out the one and only statement, whereby, the police registered this crime. It is argued that, even though there is allegation that the accused uttered a word, which prima facie contain an abusive element, the same was at the courtyard of the house of victim and the said place is not a public place or near a public place to attract offence under Section 294(b) of the IPC. That apart, nothing done by the accused so as to outrage the modesty of the victim to attract offence under Section 509 of the IPC. Further, it is submitted that, in order to attract offence under Section 11(i) of the PoCSO Act, the ingredients therein must be prima facie made out and Section 12 provides punishment for the commission of offence punishable under Section 11 of the PoCSO Act.

6. Whereas, the learned counsel appearing for the de facto complainant would submit that the prosecution allegation contained two parts, first is use of abusive words and the other is, showing a gesture by using the tongue of the accused with sexual intent. He also argued that, explanation to Section 11 of the PoCSO Act says that, any question which involves “sexual intent” shall be a question of fact. Accordingly, it is submitted that the prosecution case is made out prima facie, warranting trial and the prayer for quashment is liable to be rejected.

7. The learned Public Prosecutor would submit that, prima facie, there are allegations to justify the prosecution case and he supported the argument at the instance of the learned counsel for the de facto complainant.

8. In view of the rival arguments, the ingredients to attract Sections 294(b) and 509 of the IPC and Section 11 (i) of the PoCSO Act, required to be addressed. For this purpose, reference to Sections 294(b) and 509 of the IPC and Section 11(i) of the PoCSO Act, is necessary. The same are as under:

S.294 IPC: 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.

S.509 IPC: Word, gesture or act intended to insult the modesty of a woman.

Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word