Abusive language does not constitute obscenity under IPC unless it arouses lascivious thoughts; allegations did not support charges under Sections 294(b) or 509 IPC.

ORDER

This Criminal Miscellaneous Case is filed to quash the proceedings against the petitioner in Crime No.1102/2009 of Nedumbassery Police Station. It is a prosecution initiated against the petitioner alleging offences punishable under Sections 294 (b) and 509 IPC .

2. The prosecution case is that the petitioner was travelling in an aircraft GF 27 maintained by Gulf Air. The petitioner was travelling as a passenger on seat No.28 F in the said aircraft. It is alleged that the petitioner on 20.06.2009 at about 10PM to 10.30PM, while travelling in the said aircraft shouted and abused the crew, 2^nd respondent herein, by using abusive language and gesture due to the non availability of chicken meal of his choice. It is the further case of the prosecution that even though a warning was given by the flight senior, the petitioner continued the same. Hence it is alleged that the accused committed the above said offences.

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

4. The above case is registered based on Annexure A1 complaint. It will be better to extract Annexure A1 complaint:

“Passenger Mr.Pokkaruparambil Shabi on seat 28F was very upset & angry when he didn't get his choice of chicken meal he started shouting and abusing the crew using rude language and gesture. He wouldn't listen to any of the crew and said we were only servants on board. It was difficult to control him on the flight. Service and crew and and passengers in economy was disrupted and disturbed because of this behavior. He was given a warning by the flight senior but still he continued with the same behavior. Captain was informed and security was called. Written warning was'nt given to him because he was not willing to accept or listen to the crew. 30 minutes before top of descent he was calm.”

5. Based on the same, Annexure A3 charge sheet was filed. Whether the same amounts to an offence under Section 294 (b) IPC is the first question to be decided in this case. The ingredients of (b) is considered by the Apex Court and this Court in several decisions. 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 is obscene as it “will affect and will tend to deprave and corrupt impressionable minds”. In its own words, the High Court held:

“30. …this Court found that the actors/protagonists in the web series are not using the language used in our country i.e. civil language. The Court not only found excessive use of “swear words”, “profane language” and “vulgar expletives” being used, it rather found that the web series had a series of such words in one sentence with few Hindi sentences here and there. In the episode in question, there is clear description and reference to a sexually explicit act. The Court had to watch the episodes with the aid of earphone