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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
CAP. NOBLE PEREIRA S/O ANTONY PAREIRA – Petitioner
Versus
STATE OF KERALA – Respondent
Crl. M.C. No. 237 of 2024
Decided On : 14-08-2024
QUASHMENT - CRIMINAL PROCEDURE - IPC SECTIONS 294(b), 509; KERALA POLICE ACT SECTION 120(o) - The court discussed the legal provisions under Sections 294(b) and 509 of the IPC, and Section 120(o) of the Kerala Police Act. It highlighted that for a conviction under Section 294(b), the prosecution must prove that the accused committed an obscene act in a public place causing annoyance. The interpretation of 'public place' was broadened to include areas near public places. Under Section 509, the court emphasized the necessity of intent to insult a woman's modesty. The Kerala Police Act's Section 120(o) was examined concerning causing nuisance through communication. The court concluded that the allegations were sufficient to proceed with the case, leading to the dismissal of the quashment application.
Fact of the Case:
The accused sought to quash a complaint and FIR alleging that he published a morphed photograph of a Nun, using insulting language, which was claimed to be an obscene act and an insult to the woman's modesty under IPC and the Kerala Police Act.
Finding of the Court:
The court found that the prosecution had made a prima facie case against the accused, as the allegations met the necessary legal standards for the offences charged. The court emphasized the importance of the context and the nature of the communication in determining whether the offences were made out.
Issues: Whether the allegations against the accused constituted offences under Sections 294(b) and 509 of the IPC and Section 120(o) of the Kerala Police Act, and whether the proceedings should be quashed under Section 482 of the CrPC.
Ratio Decidendi: The court reiterated that for a conviction under Section 294(b), the act must be obscene and cause annoyance in a public place. It clarified that the definition of 'public place' is broad and includes areas near public places. For Section 509, the intent to insult modesty must be established. The court also noted that quashing proceedings is appropriate only when the prosecution lacks a prima facie case or is maliciously instituted.
Final Decision: The Criminal Miscellaneous Case was dismissed, and the interim order was vacated, allowing the prosecution to proceed.
ORDER :
1. The sole accused in C.C.No. 2565/2020 on the files of Judicial First Class Magistrate Court, Thalassery, has filed this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure, seeking quashment of Annexure A1 complaint, Annexure A2 FIR, Annexure A3 final report and all further proceedings in C.C.No. 2565 of 2020 on the files of Judicial First Class Magistrate Court, Thalassery, in Crime No. 918 of 2020 of Thalassery Police Station, Kannur.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents.
3. As per the prosecution allegation, the defacto complainant, who is a Nun under the Thalassery Diocese, while working as Coordinator of KCBC Anti Liquor Forum as part of a protest against liquor shops, on 11.05.2020, lodged complaint stating that the accused herein published photograph of the defacto complainant morphing the phraseology in the placard using insulting words such as [OTHERS LANGUAGE] through Facebook as well as WhatsApp and thereby committed offences punishable under Sections 294(b) and 509 of the Indian Penal Code as well as Section 120(o) of the Kerala Police Act.
4. The learned counsel for the petitioner would submit that the allegations, if taken together, then also none of the offences alleged by the prosecution is made out. According to him, this is a case where quashment sought for is liable to succeed.
5. Whereas the learned Public Prosecutor read out the essentials to constitute offences punishable under Section 294(b), 509 IPC and Section 120 of the K.P Act and submitted that quashment sought for cannot be allowed.
6. During investigation, the Investigating Officer collected the materials supporting the prosecution case. Coming to the offences alleged herein, one among the offences is under Section 294(b) of IPC. 294(b) provides that whoever, to the annoyance of others, sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished. In the decision reported in Pawan Kumar v. State of Haryana, (1996) 4 SCC 17 : 1997 SCC (Cri) 583 it is held that in order to secure a conviction, the provisions of Section 294, I.P.Code require two particulars to be proved by the prosecution, namely: (i) the offender has done any obscene act in any public place or 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 in or neaer any public place or that it causes no annoyance to others, no offence is committed. Under Section 509 of IPC, 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 or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, is an offence. Section 120 of the Kerala Police Act lays down the penalty for causing nuisance and violation of public order, where any person causing through any means of communication, a nuisance of himself to any person by repeated or undesirable or anonymous call, letter, writing, message, e-mail or through a messenger.
7. While addressing the essentials to constitute Section 294(b), it is relevant to extract Section 294(b) of IPC as under:
Whoever, to the annoyance of others:
(a) xxxx xxxx xxxx
(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.”
8. In the decision reported in Pawankumar v. State of Haryana and Anr. (1996) 4 SCC 17, the Apex Court held that in order to secure a conviction the provision of Section 294(b) IPC requires two particulars to be proved by the prosecution, i.e. (i) the offender has done any obscene
The court established that the definitions and interpretations of 'obscene acts' and 'public place' under the IPC are broad, and the intent behind actions is crucial in determining the applicability ....
The court established that intent to insult modesty and causing nuisance through communication can warrant criminal proceedings under IPC and K.P Act.
Allegations of stalking and obscenity must meet legal thresholds of intent and evidence; mere accusations without substantiation are insufficient for prosecution.
Quashment of criminal proceedings is not permissible if prima facie evidence exists to support allegations of sexual harassment and insulting modesty under relevant sections of IPC and KP Act.
For conviction under Section 294(b) IPC, prosecution must prove obscenity and public annoyance; failure to establish these elements leads to quashing of case motivated by personal grievances.
To constitute an offense under Section 294(b) of the IPC, the words or acts must be obscene and cause annoyance to others; mere abusive language does not suffice to meet the threshold of obscenity.
Essential ingredients for offences under Sections 294(b) and 509 IPC were not demonstrated, leading to quashing of proceedings.
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 cri....
The intention to insult the modesty of a woman is required to establish an offence under Section 509 IPC, which was not evidenced in this case.
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