Annie John, J. - The petitioner challenges Annexure A2, final report filed against him alleging offences punishable under Ss. 294(b) and 506 of the Indian Penal Code and S. 120(o) of the Kerala Police Act.
2. The case of the petitioner is as follows: The de facto complainant, who was an employee, in the company run by the petitioner, could not perform well in the company and therefore, is having no other option than terminating him from service after complying with all the legal requirements. However, it led to an animosity towards the petitioner. He started filing fictitious complaints against the petitioner and the ' petitioner's company. As a result of the animosity, an FIR was lodged against the petitioner by the de facto complainant on 04.10.2017 alleging that the petitioner called the de facto complainant over the mobile phone on 30.09.2017 and verbally abused him and also intimidated and threatened him. Accordingly, Annexure A1 F.I.R. in Crime was registered under Ss. 294(b) and 506 of I.P.C. and S. 120(o) of the Kerala Police Act. On the strength of Annexure A1, the Police filed a final report before the Judicial First Glass Magistrate Court-II, Ernakulam.
3. Section 294(b) of I.P.C. reads thus:
"294. Obscene acts and songs.-- Whoever, to the annoyance of others --
(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."
4. In order to secure a conviction, the provisions of S. 294 of I.P.C. 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 near any public place or that it causes no annoyance to others, no offence is committed.
5. The learned counsel for the petitioner contended that Annexure A2 final report is an abuse of process of court and proceeding with the same would be a waste of precious judicial time as the same is bound to end up in an acquittal; that the final report would show that the allegations are inherently false and too trivial for a prosecution to be lodged, and that none of the ingredients of the offences alleged are present in the final report. The de facto complainant died on 17.02.2019. According to the learned counsel, the proceedings initiated against the petitioner is unsustainable. He has relied on the decision in Preethimon v. State of Kerala 2008 (2) KLT 666 [LQ/KerHC/2007/1204] , wherein it is held that a vague or general statement in the F.I.R. that the accused uttered obscene words is not enough to constitute an offence under S. 294(b) of the I.P.C. and that it is necessary to state the words uttered by the accused.
6. On a perusal of Annexure A2, it would reveal that none of the ingredients under S. 294(b) of the Indian Penal Code is attracted. The vague allegation or general statement that there was utterance of obscene words in the F.I.R. is not enough to constitute an offence under S. 294(b) of the Indian Penal Code. In order to attract S. 294(b) I.P.C., the place of occurrence should be a "public place" or near a "public place". The allegation against the petitioner is that he has threatened the victim and uttered obscene words by using mobile phone and that will not tantamount to prove that he called obscene words in a public place or near a public place. So, the ingredients as contemplated under S. 294(b) of the I.P.C. is not attracted. The same view has been reiterated in Pawari Kumar v. State of Haryana 1997 (1) KLT SN 6 (C. No. 7) SC : (1996) 4 SCC 17 [LQ/SC/1996/950] . The learned counsel has also relied on the decisions in Dhanisha v. Rakhi N. Raj 2012 (2) KLT 55 [LQ/SC/2012/153] and P.T. Chacko v. Nainan Chacko 1967 KLT 799.
7. As far as the offences under S. 506 of the I.P.C. and 120 (o) of the Police Act are concerned, they are non-cognizable offences. As per S. 155(2) of the Cr.P.C., no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial:
8. In the instant case knowingly the F.I.R. was registered for offences under Ss. 506 and 120(o) of the Kerala Police Act and investigation was completed and charge sheet was laid. Then, I am constrained to hold that the investigation was hit by S. 155(2) of the Cr:P.C., it is necessarily mean that, no Police Officer could investigate with the offence in question nor submit a report on which the question of taking cognizance would have arisen. As per proviso to S. 2(d) of the Cr.P.C., police is initiated to submit, after investigation, a report relating to non-cognizable offences in which case such report is to be treated as a complaint of the Police Officer concerned. But that explanation is not applicable in this case as if relates to a case where the Police initiated investigation into a cognizable offence. The Police has filed a charge sheet against the petitioner under Ss. 294(b) and 506 of the I.P.C. and S. 120(o) of the K.P. Act. The police ought to have followed the procedure contemplated under S. 155 of the Cr.P.C.. However, the police have registered the case and laid charge sheet. Now the question is whether the of investigating officer is legally sustainable. As has already been held, S. 294(b) is not attracted. The offences under S. 506 of the I.P.C. and 120(o) of the K.P. Act are non-cognizable offences and the charge sheet filed against the petitioner by the police is without the order of a Magistrate having power to try such case or commit the case for trial. The investigation without permission of the Magistrate is hit by S. 155(2) of Cr.P.C. Hence the proceeding against the accused herein to be quashed.
9. In the result this Criminal M.C. is allowed and all further proceedings in C.C. No. 1602 of 2018 on the file of the Judicial First Class Magistrate's Court-II, Ernakulam is hereby quashed.
