Abusive language does not constitute obscenity under IPC unless it arouses lascivious thoughts; criminal proceedings can be quashed if deemed an abuse of process.

The petitioner claims to be a practicing lawyer. He has been arrayed as the 1st accused in C.C. No.524 of 2015 on the file of Judicial First Class Magistrate Court, Muvattupuzha. He has approached this Court seeking to quash the pending criminal proceedings.

2. Sans the details, the relevant facts need to be adverted to for considering the prayer sought for. The 2nd respondent is the owner of a one room building situated at Mekkadambu Panchayat. For leasing it out to a mobile phone operator, he had to carry out certain modifications. On 11.03.2015 at about 3.20 p.m, while he was overseeing the work that was being carried on, the petitioner reached the spot. He is alleged to have picked up an altercation and abused him. He then spewed out the following sentence”

“...ഞാൻ പെന്നൂസ്സിൽ പ്രതിയാപിന്ന് പെന്ന് കാട്ടും എന്തായിടാ. നിന്റെ എന്തുപയ്യാൻ രറ്റൂപെ”

3. The petitioner then took out his mobile phone and was found talking to some one. After sometime, one Rajesh arrived at the spot. He had a conversation with the petitioner and thereafter, he approached the de facto complainant. Rajesh then attempted to deflate the tyres of the vehicle of the 2nd respondent. When this was questioned, he was abused and the aforesaid Rajesh is alleged to have fisted the de facto complainant on his face. When the neighbours rushed to the spot, the 2nd accused is alleged to have left the place in his bike. The 2nd respondent states that he was removed to the hospital and had to undergo treatment. Stating these allegations, information was furnished on the strength of which, the subject crime was registered.

4. The learned counsel appearing for the petitioner submitted that as against the petitioner, the only allegation is that he had committed the offence under Section 294 (b) of the IPC . According to the learned counsel, in the light of the principles laid down by a Division Bench of this Court in Dhanisha v. Rakhi N. Raj and Another [2012 (2) KHC 111] and that of a learned Single Judge in Latheef v. State of Kerala [2014 (2) KHC 604], the proceedings as against the petitioner are liable to be quashed. He would urge that in order to attract the offence under (b), the alleged words must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons and defiling morals by sex appeal or lustful desires. According to the learned counsel, the alleged words uttered by the petitioner, without adding or subtracting anything, will not attract the offence alleged.

5. Though notice was served on the 2nd respondent, he did not care to enter appearance.

6. Heard the learned Senior Public Prosecutor and I have perused the records.

7. In Dhanisha (supra), a Division Bench of this Court after cataloging the long line of precedents had occasion to observe that the matter charged as obscene under Section 294 (b) of the IPC should tend to deprave and corrupt those whose minds are open to immoral influence arousing lustful desire or must tend to sexually impure thoughts. It was held that there is nothing in of the to hold that the word “obscene” should have a different meaning than that is made applicable to Section 292 of the . In Latheef (supra), a learned Single Judge of this Court had occasion to observe as follows in paragraph No. 5 of the report:

“Abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined under the law. Of course there is 5 no doubt that the words alleged to have been used by the revision petitioner are in fact abusive and humiliating. But to make it obscene, punishable under S.294(b) IPC it must satisfy the definition of obscenity. S.294 does not define obscenity. Being a continuation of the subject dealt with under S.292 the definition of obscenity under 292(1) can be applied in a prosecution under S.294 also. To make punishable, the alleged words must be in a sense lascivious, or it must appeal to the prurient interest, o