IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 2^ND DAY OF SEPTEMBER 2024 / 11TH BHADRA, 1946 CRL.MC NO. 6441 OF 2018 CRIME NO.806/2018 OF KOOTHATTUKULAM POLICE STATION, ERNAKULAM AGAINST THE ORDER/JUDGMENT DATED IN CC NO.278 OF 2018 OF JUDICIAL FIRST CLASS MAGISTRATE. COURT, KOOTHATUKULAM(TEMPORARY)

PETITIONER/ACCUSED:

BINU RAJAPPAN AGED 42 YEARS, S/O RAJAPPAN, KEEDASSERIL HOUSE, DHARSHANA JUNCTION, PERUMPADAVOM, ELANJI, KOOTHATTUKULAM, ERNAKULAM.

BY ADVS.

SRI. K.R.PRATHISH SRI. S. RENJITH RESPONDENTS:

1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

2 JOLY PHILIP AGED 54 YEARS W/O. CYRIAC, MANGALATH KAROTTU HOUSE, DHARSHANA JUNCTION, PERUMPADAVOM, ELANJI, KOOTHATTUKULAM, ERNAKULAM, PIN - 686665 BY ADV.

SRI. RENJITH.T.R., SR.PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

P.V.KUNHIKRISHNAN, J.

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Crl.M.C. No.6441 of 2018 …....................................................

Dated this the 2^nd day of September, 2024 ORDER This Criminal Miscellaneous Case is filed to quash the proceedings in C.C. No.278/2018 on the file of the Judicial First Class Magistrate Court, Koothattukulam arising from Crime No.806/2018 of Koothattukulam Police Station. The above case is charge sheeted alleging offences punishable under Section 294(b) of the IPC.

2. The prosecution case is that the de-facto complainant and the petitioner are neighbors. It is alleged that the de-facto complainant and her family is residing to the adjacent plot and the petitioner/accused used to abused the de-facto complainant in filthy languages. It is submitted that on 16.05.2018 at 11.00 p.m, the de-facto complainant was in her home, the accused person has called the de- facto complainant and abused her in filthy language. It is stated that the petitioner used the following words:

"എടീ ജ(cid:5)ോളി പൂറി ജ(cid:12)ോജള നീ ഏത് പോലോ്ᨪോരൻ അ്ᨴോയ്ᩈിടെടയും

ജ(cid:12)ോളോടെ(cid:28)്ᨮിലും, നീ നോടെള വ്ᩂിയിറ്ᨪു്ᩐത് കോ(cid:28)(cid:28)ം.”

According to the petitioner, the same amounts to the offences punishable under Section 294(b) of the IPC.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

4. The learned counsel for the petitioner submitted that, even if the entire allegations are accepted, no offence is made out. The learned Public Prosecutor submitted that the contentions raised by the petitioner are all matters of evidence and this Court may not interfere with the prosecution at this stage. Even though notice is issued to the

2^nd respondent there is no appearance for the 2^nd respondent.

5. The offence alleged is under Section 294(b) of the IPC.

The Apex Court in Apoorva Arora v. State (Govt. Of NCT of Delhi) [2024 KHC Online 6153] considered the meaning of obscenity. It will be better to extract the relevant portion of the above judgment.

“34. From a plain reading of Section 67 and the material that is characterised as ‘obscene’ therein, it is clear that the High Court posed the wrong question, and it has naturally arrived at a wrong answer. At the outset, the enquiry under Section 292 of the IPC or under Section 67 of the IT Act does not hinge on whether the language or words are decent, or whether they are commonly used in the country. Rather, from the plain language of the provision, the inquiry is to determine whether the content is lascivious, appeals to prurient interests, or tends to deprave and corrupt the minds of those in whose hands it is likely to fall. The High Court embarked on a wrong journey and arrived at the wrong destination.

35. Profanity is not per se obscene: The second threshold error is in the finding of the High Court that the language is full of swear words, profanities, and vulgar expletives that could not be heard in open court and also that it is not the language of the youth. Based on this finding, the High Court has held that the content