Kerala High Court
Bibin Thomas vs State Of Kerala on 5 June, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:40031
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TH
THURSDAY, THE 5 DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
CRL.REV.PET NO. 545 OF 2025
CRIME NO.592/2022 OF Mulavukad Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 11.04.2025 IN CC NO.106
OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, ERNAKULAM
REVISION PETITIONER/PETITIONER/ACCUSED:
BIBIN THOMAS
AGED 42 YEARS
SON OF THOMAS, RESIDING AT THAIPARAMBU HOUSE,
PONNARIMANGALAM, ERNAKULAM, PIN - 682504
BY ADVS.
SMT.MAJIDA.S
SRI.AJIKHAN.M
SMT.FIZA HUSSAIN
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 STATION HOUSE OFFICER
MULAVUKAD POLICE STATION, ERNAKULAM, PIN - 682031
3 GABRIEL BENNY
S/O SEBASTIAN, THACHU THARA HOUSE, MULAVUKAD,
AMBEDKAR COLONY LINK ROAD, MULAVUKAD VILLAGE;
ERNAKULAM, PIN - 682031
SR PP SRI HRITHWIK C S
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 05.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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P.V.KUNHIKRISHNAN, J
--------------------------------
Crl Rev Pet No.545 of 2025
-------------------------------
Dated this the 05th day of June, 2025
ORDER
This Revision is filed against the order dated 11.04.2025
in CMP 1314/2025 in CC 106/2024 on the files of the Judicial
First Class Magistrate Court-I, Ernakulam. It is an order passed
by the learned Magistrate in a petition filed under Section 239
of the Code of Criminal Procedure (Cr.P.C), seeking discharge of
the petitioner.
2. Petitioner is arrayed as the sole accused in Crime
No.592/2022 of Mulavukad Police Station. The offences alleged
against the petitioner are under Sections 324 and 294(b) of the
Indian Penal Code. According to the petitioner, even if the
entire allegations are accepted, the offences under Sections
324 and 294(b) Cr. P.C. are not attracted. The learned
Magistrate considered the discharge petition and dismissed the
same as per the impugned order. Aggrieved by the same, this
revision is filed.
3. Heard the learned counsel for the petitioner and the
Public Prosecutor.
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3
4. The final report filed in this revision petition is
produced as Annexure A1. The relevant portion of the same is
extracted hereunder.
” പ്രതിക്ക് ഒന്നാം സാക്ഷിയെ ദേഹോപദ്രവം
ഏൽപ്പിക്കണമെന്നുള്ള ഉദ്ധേശത്തോടും കരുതലോടും കൂടി
21.08.2022 തീയതി പകൽ 02:15 മണിക്ക്’ മുളവുകാട്’
വില്ലേജ് പൊന്നാരിമംഗലം, കരയിൽ പൊന്നാരിമംഗലം
പള്ളിക്ക് സമീപം പൊന്നാരിമംഗലം മുളവുകാട് നോർത്ത്
റോഡിൻറ്റെ തെക്കുവടക്കുകിഴക്കുവശത്ത് നിൽക്കുന്ന VNBM
എന്ന് 143-כo നമ്പർ ഇട്ടിരിക്കുന്ന ഇലക്ട്രിക്ക് പോസ്റ്റിൻറ്റെ
ചുവട്ടിൽ നിന്നും 166 മീറ്റർ തെക്കുപടിഞ്ഞാറു മാറിയും ടി
പോസ്റ്റിൻറ്റെ തെക്ക് മാറികാണുന്ന VNBM എന്ന് 144-כo
നമ്പർ ഇട്ടിരിക്കുന്ന കോൺക്രീറ്റ് ഇലടിക് പോസ്റ്റിൻറ്റെ
ചുവട്ടിൽ നിന്നും 37 മീറ്റർ വടക്ക് പടിഞ്ഞാറുമാറിയും ടി
റോഡിൽ നിന്നും 2 മീറ്റർ നേരെയും കാണുന്ന
ടാർറോഡുഭാഗത്ത് വച്ച് ആവലാതിക്കാരൻറ്റെ
അയൽവാസിയായി പ്രതി അശ്ലീല ആംഗ്യം കാണിച്ചത്
ചോദ്യം ചെയ്തതിൻറ്റെ വിരോധത്താൽ പ്രതി കൈ
വശമുണ്ടായിരുന്ന ഹെൽമറ്റ് വച്ച് മുഖത്തടിച്ചതിൽ വച്ച്
മൂക്കിന് ചതവും, ചുണ്ടിനും പല്ലിനും വേദനയും, മറ്റ് പരിക്കും
മുഖത്തിന് നീരും വരുവാൻ ഇടയാക്കി എറണാകുളം ജനറൽ
ആശുപത്രിയിൽ ചികിത്സ തേടാൻ ഇടയാക്കിയതിന് പ്രതി
324, 294(b) IPC പ്രകാരമുള്ള കുറ്റക്രത്യം ചെയ്തിട്ടുള്ളതായി
വെളിവായിട്ടുള്ളതാണ്.”
5. The first offence alleged is under Section 324 of the
Indian Penal Code. I am not in a position to say that the above
allegation will not attract the ingredients of Section 324 of the
Indian Penal Code prima facie. The contention raised by the
petitioner is to be raised before the trial court by adducing
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appropriate evidence and by cross-examining the witnesses.
The contention raised by the petitioner regarding the
maintainability of Section 324 of the Indian Penal Code is left
open, and the petitioner can raise the same before the trial
court at the appropriate stage.
6. To attract Section 294(b) of the Indian Penal Code,
certain ingredients are necessary. The ingredients of Section
294(b) IPC are 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 the wrong journey and
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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
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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
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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.
7. 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
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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.”
8. 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
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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
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CRL.REV.PET NO.545 OF 202510
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)
9. Keeping in mind the above principle, this Court once
again perused the final report. I am of the considered opinion
that the ingredients of Section 294(b) are not attracted.
Therefore, the offence under Section 294 (b) of the Indian Penal
Code alleged against the petitioner can be quashed.
10. When this Revision came up for consideration, this
Court directed the Registry to get a report about the time
required to dispose of the main case. The learned Magistrate
reported that the case can be disposed of within three months
from 12.06.2025, on which the case is posted for framing
charge. If that is the case, there can be a direction to dispose of
the case within three months from 12.06.2025.
Therefore, this Revision Petition is allowed in part. The
offence alleged against the petitioner in Annexure-A1 final
report, as far as Section 294(b) is concerned, is quashed. The
petitioner has to face trial for Section 324 of the Indian Penal
Code. The Judicial First Class Magistrate Court-I, Ernakulam, will
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try to dispose of CC No.106/2024 as expeditiously as possible,
at any rate, within three months from 12.06.2025.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SSG
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APPENDIX OF CRL.REV.PET 545/2025
PETITIONER’S ANNEXURES
Annexure A1 A TRUE COPY OF THE FINAL REPORT IN CC
NO. 106/2024 DATED 30/10/2023
Annexure A2 A TRUE COPY OF THE FINAL REPORT IN CC
NO. 450/2023 DATED 30/5/2024
Annexure A3 A TRUE COPY OF THE JUDGEMENT IN CRL.
MC NO. 8009/2024 DATED 6/2/2025