O R D E R

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 “പെ(cid:2)ൺ മക്കപെ(cid:6)

" 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 [(1996) 4 SCC 17 : 1997 SCC (Cri) 583], Pawan Kumar v. State of Haryana, 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:

“S. 294. Obscene acts and songs.

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 [(1996) 4 SCC 17], Pawankumar v. State of Haryana & anr., 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