P.V. KUNHIKRISHNAN, J.

1. This criminal miscellaneous case is filed to quash the proceedings in C.C.No.842/2016 on the file of the Judicial First Class Magistrate Court, Angamaly, arising from Crime No.543/2016 of Angamaly Police Station. The above case is charge-sheeted alleging offences punishable under Sections 353, 294(b) and 506(i) of the Indian Penal Code.

2. The prosecution case is that, on 11.03.2016, at about 4 pm, the defacto complainant was engaged in his official duty as AMVI along with MVI Manoj at Nayathode Junction at Angamaly inspecting the stage carriage bearing Registration No.KL-04/P-3026. According to the prosecution, when the defacto complainant was explaining defects of the vehicle to its driver, the accused who was inside the bus, started to abuse the defacto complainant in filthy language and while preventing the accused, he threatened the defacto complainant that he would kill him and he thus obstructed the official duty of the defacto complainant. Hence it is alleged that the accused committed the offence. Annexure-A is the First Information Statement and Annexure-B is the final report. According to the petitioner, even if the entire allegations are accepted, no offence is made out against the petitioner.

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

4. The offences alleged in Annexure-B are under Sections 353, 294(b) and 506(i) IPC. It will be better to extract the relevant portion of the final report in Annexure-B:

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5. The first offence alleged is under Section 353 IPC. Section 353 IPC is extracted hereunder:

“Assault or criminal force to deter public servant from discharge of his duty:-

Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person to the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

6. To attract Section 353 IPC, the prosecution has to prove that there is assault or use of criminal force by the accused to any person who is a public servant. Assault is defined in Section 351 IPC, which is extracted hereunder:

“Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.”

7. Criminal force is defined in Section 350 IPC, which is as follows:

“Whoever intentionally uses force to any person, without that person’ consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.”

8. Force is defined in Section 349 IPC. The same is also extracted hereunder:

“A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other’ body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other’ sense of feeling."

9. The case of the prosecution is that since the accused abused and shouted towards the defacto complainant, he was not able to discharge his duty. A perusal of the First Information Statement and the final report would not show that there is any criminal force or assault from the side of the petitioner towards the accused. If that is the case, I am of the considered opinion that the offence under Section 353 IPC is not made out in the facts and circumstance of the case.

10. The other offence alleged is under Section 294(b) IPC. The ingredients of Section 294(b) IPC 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 earphones, in the chamber, as the profanity of language used was of the extent that it could not have been heard without shocking or alarming the people around and keeping in mind the decorum of language which is maintained by a common prudent man whether in professional or public domain or even with family members at home. Most certainly, this Court notes that this is not the language that nation’s youth or otherwise citizens of this country use, and this language cannot be called the frequently spoken language used in our country.

36. When the entire content of the series is seen in the light of above, it would lead any common person to a conclusion that the language used in the web series is foul, indecent and profane to the extent that it will affect and will tend to deprave and corrupt impressionable minds. Therefore, on the basis of this finding it can be held that the content of the web series will certainly attract the criminality as envisaged under Section 67 of the Information Technology Act.”

(emphasis supplied).

The specific material which the High Court found to be obscene, i.e., that which tends to deprave and corrupt impressionable minds, was “foul, indecent and profane” language. Nothing more. The High Court has equated profanities and vulgarity with obscenity, without undertaking a proper or detailed analysis into how such language, by itself, could be sexual, lascivious, prurient, or depraving and corrupting. It is well-established from the precedents cited that vulgarity and profanities do not per se amount to obscenity. While a person may find vulgar and expletive-filled language to be distasteful, unpalatable, uncivil, and improper, that by itself is not sufficient to be ‘obscene’. Obscenity relates to material that arouses sexual and lustful thoughts, which is not at all the effect of the abusive language or profanities that have been employed in the episode. Rather, such language may evoke disgust, revulsion, or shock. The reality of the High Court’s finding is that once it found the language to be profane and vulgar, it has in fact moved away from the requirements of obscenity under Section 67 of the IT Act. The High Court failed to notice the inherent contradiction in its conclusions."

11. In Sangeetha Lakshmana v. State of Kerala [2008 (1) KHC 812], this Court also considered the meaning of obscenity. It will be better to extract the relevant portion of the above judgment.

“5. In order to satisfy the test of obscenity, the words uttered must be capable of arousing sexually impure thoughts in the minds of its hearers. The word "rascal" does not have the tendency of depraving or corrupting those minds which are open to the prurient of lascivious influences. Secondly, the occurrence itself allegedly took place when the Sub Inspector went to the flat in question in purported exercise of rendering aid to the bank for taking possession of the flat. As a matter of fact, as per Annexure B proceedings of the Debts Recovery Tribunal dated 12/07/2006 all proceedings pursuant to the possession notice dated 07/07/2006 issued by the bank were stayed till 17/08/2006. There is no dispute that the order of the Debts Recovery Tribunal was passed in the morning of 12/07/2006. If so, neither the bank nor the police officer could have proceeded to the flat in question for taking possession of the same. Hence, the Inspector had no business at all at the premises in question, much less, do any act in discharge of his duties. If so, it cannot be said that the Sub Inspector (a public servant) was deterred by the petitioner from discharging his official duties. Such being the position, allowing the above CC Case to proceed further will amount to abuse of the process of the Court. Accordingly, all proceedings in CC 293 of 2006 on the file of the Chief Judicial Magistrate, Ernakulam is quashed.”

12. In Latheef v. State of Kerala [2014 (2) KHC 604], this Court again considered the ingredients to attract Section 294(b) IPC. It will be better to extract the relevant portion of the above judgment.

“5. Abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined under the law. Of course there is 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 IPC does not define obscenity. Being a continuation of the subject dealt with under S.292 IPC the definition of obscenity under 292(1) IPC can be applied in a prosecution under S.294 IPC also. To make punishable, the alleged words must be in a sense lascivious, or it must appeal to the prurient interest, or will deprave and corrupt persons. In P. T. Chacko v. Nainan Chacko reported in 1967 KHC 231 : 1967 KLT 799 this Court held that, “the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.” In Sangeetha Lakshmana v. State of Kerala reported in 2008 (1) KHC 812 : 2008 (2) KLT 745 : 2008 (1) KLD 339 this Court held thus, “in order to satisfy the test of obscenity, the words alleged to have been uttered must be capable of arousing sexually impure thoughts in the minds of its hearers.” Thus it is quite clear that, to make obscene 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. I find that the words alleged to have been used by the revision petitioner in this case are really abusive and humiliating, but those words cannot be said to be obscene. As already stated, every abusive word or every humiliating word cannot, by itself, be said to be obscene as defined under the Indian Penal Code. I find that the conviction against the revision petitioner under S.294(b) IPC in this case, on the basis of the above words alleged to have been used by him, is liable to be set aside, and the revision petitioner is entitled to be acquitted. In the result, this revision petition is allowed. The conviction and sentence against the revision petitioner under S.294(b) IPC in ST No. 3810/1998 of the Judicial First Class Magistrate Court, Chittoor are set aside, on the finding in revision that the revision petitioner is not guilty of the offence punishable under S.294(b) IPC. The revision petitioner will stand released from prosecution on acquittal, and the bail bond executed by him will stand discharged.”

(underline supplied)."

13. In the light of the above dictum, this Court perused the allegation in this case. Even if the entire allegations are accepted, in the light of the principle laid down in the above judgments, I am of the considered opinion that the offence under Section 294(b) IPC is not made out.

14. What remains is the offence under Section 506(i) IPC. As far as the offence alleged under Section 506 IPC is concerned, the Apex Court considered the ingredients of the same in detail in Manik Taneja and anr. v. State of Karnataka and anr. [2015 KHC 4046]. The relevant portion of the above judgment is extracted hereunder:

“13. S.506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in S.503 IPC is as under:

"503. Criminal Intimidation.-- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Explanation.-- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."

14. A reading of the definition of "Criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.

15. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "Criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the minds of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in S.503 IPC.”

(underline supplied)."

15. In the light of the above principle, I am of the opinion that the offence under Section 506(i) IPC is also not attracted in the facts and circumstances of the case.

16. The upshot of the above discussion is that no offence is made even if the entire allegations in Annexure-B final report are accepted.

17. Therefore, this criminal miscellaneous case is allowed. All further proceedings against the petitioner in C.C.No.842/2016 on the file of the Judicial First Class Magistrate Court, Angamaly, arising from Crime No.543/2016 of Angamaly Police Station, are quashed.