ORDER

This Criminal Miscellaneous Case is filed to quash the proceedings in C.C.No.792/2018 on the file of the Judicial First Class Magistrate Court-I, Hosdurg arising from crime No.499/2018 of Hosdurg Police Station. The above case is charge sheeted alleging offences punishable under Sections

323 and 294(b) of IPC.

2. The prosecution case is that, the accused attacked the de-facto complainant on 26.04.2018 when he was standing opposite to the Kanhangad bus stand at about 1:30 p.m. According to the complainant, the accused punched and kicked him on the face and chest alleging that the complainant touched his body and showed abuses. It was further alleged that he suffered an injury on the lips. Hence it is alleged that the accused committed the said offences.

3. After submitting the Final Report the learned Magistrate accepted the final report. Annexure- A2 is the Final Report. The petitioner has a serious dispute with the 6^th respondent and petitioner has certain financial transaction with the 6^th respondent is the submission. According to the petitioner, 6^th respondent misuse the blank cheques signed by the petitioner and file cases before different courts. The petitioner filed a complaint before the State Police Chief as evident by Annexure -A3. It is the case of the petitioner that the de-facto complainant is filing frivolous complaint before different authorities. It is submitted that the complaint filed before the State Police Chief was forwarded to the District Police Chief, Kasargode. The District Police Chief entrusted the enquiry to Deputy Superintendent of Police District Special Branch Kasaragode. According to the petitioner a detailed enquiry was conducted and a report was submitted before the District Police Chief as evident by Annexure-A5.

4. It is submitted that the Enquiry Officer in the report has pointed out that the involvement of the petitioner has not been proved and no evidence is collected to prove the guilt of the petitioner. The petitioner submitted before the District Police Chief to accept Annexure-A5 report and to order a further investigation, but no action was taken. Hence, this Criminal Miscellaneous Case is filed with the following prayers;

“ i. allow this Criminal Miscellaneous Case by quashing Annexure-A1 FIR and Annexure A2 charge sheet in C.C. No. 792/2018 on the file of the Judicial First Class Magistrate Court-I, Hosdurg as against the petitioner.

ii. Direct the District Police Chief Kasaragode to order further investigation under section 173(8) of the Code of Criminal Procedure in Crime No. 499/2018 on the files of the Hosdurg Police Station through a Superior Officer not below the rank of Deputy Superintendent of Police, for the ends of Justice.”

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

6. When this Criminal Miscellaneous Case came up for consideration, the Public Prosecutor submitted that a further investigation was conducted in this case and it was found that no change in the Final Report is necessary. The question to be decided is whether any offence is made out as per Annexure-A2 Final Report. The offences alleged are under Sections 294(b) and 323 of IPC. Section 294(b) states that whoever, to the annoyance of others sings, recites or utters any obscene song, ballad or words, in or near any public place, is punishable with imprisonment. Section 294(b) of IPC is interpreted by the Apex Court and this Court in several decisions. 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 Sectio