Leave granted.
This appeal is at the instance of the original
accused Nos. 1 & 2 resply in a complaint lodged by the
respondent herein before the Court of the Judicial
Magistrate at Alandur, Tamil Nadu for the offences
punishable under Sections 294(b) and 341 resply of the
Indian Penal Code (For short "The IPC") and is directed
against the order passed by the High Court of Judicature
at Madras dated 1st April, 2022 in Crl.O.P.No.5697 of
2019 by which the High Court declined to quash the
criminal proceedings instituted by the respondent herein
(original complainant). The High Court ultimately
rejected the application filed by the appellants herein
under Section 482 of the Code of Criminal Procedure (for
parties to this litigation are residing at one common
enclave called the Sadagopan Enclave, Kannappan Street,
Chromepet Road, Nanmangalam, Chennai. The respondent
herein, the original complainant filed an application
No.STC No.566 of 2018 in the Court of Judicial Magistrate
at Alandur and prayed for an order of police
investigation under Section 156(3) of the Cr.P.C. or to
take cognizance under Section 200 of the Cr.P.C. On the
fateful day of the incident, the parties entered into a
verbal altercation on the issue of excessive flow of
waste water in the society.
We have gone through the entire complaint lodged by
the respondent herein. We asked the learned counsel
appearing for the respondent (original complainant) to
take us to that part of the complaint which constitutes
an offence. To put in other words, the necessary
averments in the complaint disclosing the commission of
the offence punishable under Sections 294(b) and 341
resply of the IPC.
In the aforesaid context, our attention has been
invited to the following paragraphs of the complaint
which read as under:-
“3. The complainant humbly submits that she
has been elected as a Treasurer for the
Sadagopan Enclave Residents Association on
15.08.2017 which is a registered one and working
for the welfare of the society along with the
President, Secretary and four Executive members.
4. The complainant further submits that the
residents have been promised by the promoters
about the sewage treatment plant, Gym, Kids Play
Park, Roads, etc., as early as possible. Now the project has completed it’s eight years and still there were seven houses not yet registered. The waste water is going into the lands belonging to the land owners and nearby land for the past eight years. Two years before the adjacent land owner on north side objected for the flow of waste water which made to take a decision to control the flow and keep it onto the lands of land owners only. The land owners had accepted to the office bearers of 2016-17 to dig their land with the help of JBC and the waste water had run into that said lands.
5. The complainant further submits that the Current Office Bearers have received a continuous and constant complaint from the residents adjacent to the septic tank about the excessive flow of waste water and the said office bearers have tried to control the water flow by Using 21 round cement stones into the earth and the maximum water flow is going outside. But the said residents were not at all satisfied and reported in the whatsapp that reptiles are coming to their house due to the septic tank and wanted to bulk sewage treatment plant. In the society meetings of the previous office bearers, the STP quotation is 35 lakhs which was refused by the society members i.e. residents.
6. The complainant further submits that mean while the resident of Plot No. 7F adjacent to the septic tank has tried to level and build some construction work in the STP area and the necessary materials were supplied and kept in the common STP area, it was opposed by all the residents but the said resident has argued that he is the man aggrieved and he is having the land over there as per his legal documents. The current office bearers replied that as per the construction agreement of all the residents, no one shall change the elevation outer colour scheme of the building, and shall alter or permit to be altered the flat to be constructed. But the said resident refused to remove the materials even after the police advice. The said resident has complained to the police officials (Mr. Elango) about the waste water flow and subsequently the said police official advised the officer bearers for sending the waste water by laying the PVC pipes. On the next day i.e. 16.04.2018 at 4:30 pm, when the work of laying
of the PVC pipes was being carried out, the
residents enquired about the same and later one
of the land owners, namely Mr. Madanagopal spoke
unparliamentary words towards the workers. The
workers thereafter informed Miss Lalitha
(Treasurer) about this. She rushed to the spot
and the said land owner once again used the
unparliamentary words and was prepared to beat
her. The security and the workers protected Miss
Lalitha and she had no leave as there was no
other option. The police was informed that Mr.
Madanagopal had uttered unparliamentary words
and admitted such utterance that led to the
lodging of the police complaint on 17.04.2018
against Mr. Madanagopal, his wife Ms. Suseela,
his cousin sister Ms. Sarala (who resided
outside the Sadagopan enclave), Mr. Partha Dass,
his wife Ms. Lopamudra and Mr. Venkatesh.”
[Emphasis supplied]
Thus, all that has been averred in the complaint is
that the appellant Madanagopal hurled unparliamentary
words towards the complainant.
Section 294(b) of the IPC talks about the obscene
acts and songs. Section 294 of the IPC as a whole reads
thus:
"294.Obscene acts and songs - Whoever, to the
annoyance of others -
(a) does any obscene act in any public place,
or
(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."
It is to be noted that the test of obscenity under
Section 294(b) of the I.P.C. is whether the tendency of
the matter charged as obscenity is to deprave and corrupt
those whose minds are open to such immoral influences. The
following passage from the judgment authored by Justice
K.K. Mathew (as his Lordship then was) reported in P.T.
Chacko v. Nainan (1967 KLT 799) explains as follows:
“The only point argued was that the 1st accused
has not committed an offence punishable under
Section 294(b) IPC., by uttering the words
above-mentioned. The courts below have held that
the words uttered were obscene and the utterance
caused annoyance to the public. I am not in-
clined to take this view. In the Queen v. Hick-
lin, [L.R.] 3 Q.B. 360 at 371 Cockburn C.J. Laid
down the test of ‘obscenity’ in these words:
“……. the test of obscenity is this, whether
the tendency of the matter charged as obscen-
ity is to deprave and corrupt those whose
minds are open to such immoral influences”
This test has been uniformly followed in In-
dia. The Supreme Court has accepted the cor-
rectness of the test in Ranjit D.
Udeshi v. State of Maharashtra, AIR 1965 SC
881. In Samuel Roth v. U.S.A., 354 US 476
(1957), Chief Justice Warren said that the
test of ‘obscenity’ is the “substantial ten-
dency to corrupt by arousing lustful de-
sires”. Mr. Justice Harlan observed that in
order to be ‘obscene’ the matter must “tend
to sexually impure thoughts”. I do not think
that the words uttered in this case have such
a tendency. It may be that the words are
defamatory of the complainant, but I do not
think that the words are ‘obscene’ and the
utterance would constitute an offence punish-
able under S. 294(b) IPC”.
It has to be noted that in the instance case, the
absence of words which will involve some lascivious
elements arousing sexual thoughts or feelings or words
cannot attract the offence under Section 294(b). None of
the records disclose the alleged words used by the
accused. It may not be the requirement of law to reproduce
in all cases the entire obscene words if it is lengthy,
but in the instant case, there is hardly anything on
record. Mere abusive, humiliating or defamative words by
itself cannot attract an offence under Section 294(b) IPC.
To prove the offence under Section 294 of IPC mere
utterance of obscence words are not sufficient but there
must be a further proof to establish that it was to the
annoyance of others, which is lacking in the case. No one
has spoken about the obscene words, they felt annoyed and
in the absence of legal evidence to show that the words
uttered by the appellants accused annoyed others, it can
not be said that the ingredients of the offence under
Section 294 (b) of IPC is made out.
Section 341 of the IPC talks about punishment for
wrongful restraint. Section 341 reads thus:
"341. Punishment for wrongful restraint -
Whoever wrongfully restrains any person shall be
punished with simple imprisonment for a term
which may extend to one month, or with fine
which may extent to five hundred rupees or with
both."
The complaint also fails to disclose the necessary
ingredients to constitute the offence of wrongful
restraint. In order to attract application of Section 341
which provides for punishment for wrongful restraint, it
has to be proved that there was obstruction by the
accused; (ii) such obstruction prevented a person from
proceeding in a direction to which he had a right to
proceed; and (iii) the accused caused such obstruction
voluntarily. The obstructor must intend or know or would
have reason to believe that the means adopted would cause
obstruction to the complainant.
The averments made in the complaint according to us
are not sufficient to even constitute the offence of
wrongful restraint. In the overall view of the case, we
are convinced that no case is made out against the
appellants herein as alleged by the complainant.
Taking cognizance of an offence under Section 190(1)
of the Cr.P.C. and issue of process under Section 204 are
judicial functions and require a judicious approach. This
is a proposition not only based on sound logic but is also
based on fundamental principles of justice, as a person
against whom no offence is disclosed cannot be put to any
harassment by the issue of process. Issuance of process
must be preceded by an application of judicial mind to the
material before the court to determine if there is ground
for proceedings against the accused. When the allegations
made in the complaint are found to be too vague and general
without giving any material particulars of the offence
alleged against the accused then the order of the
Magistrate issuing process on the basis of the complaint
would not be justified as there must be material prima
facie, for issuance of process. We have our own doubts
whether even the verification of the original complainant
on oath was recorded before taking cognizance and issuing
process.
In the result, the impugned order is set aside and
the criminal proceedings of STS No. 566 of 2018 pending
in the court of Judicial Magistrate, Alandur, Tamil Nadu
are hereby quashed. Therefore, the appeal succeeds and
is accordingly allowed.
Petition(s) for Special Leave to Appeal (Crl.) No(s). 6039/2022
(Arising out of impugned final judgment and order dated 01-04-2022 in CRLOP No. 5627/2019 passed by the High Court of Judicature at Madras)
N. S. MADHANAGOPAL & ANR. Petitioner(s)
VERSUS
K . LALITHA Respondent(s)
Date : 10-10-2022 This matter was called on for hearing today.
CORAM :
For Petitioner(s) Mr. S.Vallinayagam,Adv.
Mr. M. A. Chinnasamy, AOR
Ms. C.Rubavathi,Adv.
Mr. C.Raghavendren,Adv.
Mr. M.Veera Ragavan,Adv.
Ms. Kajal Singhal,Adv.
Mr. Rajeev Gupta,Adv.
For Respondent(s) Dr. Zulfiqar Ali Khan,Adv.
Ms. K.Bhuvaneswari,Adv.
Ms. R.Sarala,Adv.
Mr. Md. Shahid Anwar, AOR
UPON hearing the counsel the Court made the following
Leave granted.
The appeal is allowed in terms of the signed
Reportable order.
Pending application also stands disposed of.
(Signed Reportable order is placed on the file.)