N. S. MADHANAGOPAL & ANR. versus K. LALITHA on 10 October 2022

1. Leave granted.

2. This appeal is at the instance of the original accused Nos. 1 &2 resply in a complaint lodged by the respondent herein before the Courtof the Judicial Magistrate at Alandur, Tamil Nadu for the offencesFpunishable under Sections 294(b) and 341 resply of the Indian PenalCode (For short “The IPC”) and is directed against the order passed bythe High Court of Judicature at Madras dated 1st April, 2022 inCrl.O.P.No.5697 of 2019 by which the High Court declined to quash thecriminal proceedings instituted by the respondent herein (originalGcomplainant). The High Court ultimately rejected the application filed bythe appellants herein under Section 482 of the Code of CriminalProcedure (for short “The Cr.P.C.).

3. It appears from the materials on record that the parties to thislitigation are residing at one common enclave called the SadagopanHEnclave, Kannappan Street, Chromepet Road, Nanmangalam, Chennai.

The respondent herein, the original complainant filed an applicationNo.STC No.566 of 2018 in the Court of Judicial Magistrate at Alandurand prayed for an order of police investigation under Section 156(3) ofthe Cr.P.C. or to take cognizance under Section 200 of the Cr.P.C. Onthe fateful day of the incident, the parties entered into a verbal altercationon the issue of excessive flow of waste water in the society.

4. We have gone through the entire complaint lodged by therespondent herein. We asked the learned counsel appearing for therespondent (original complainant) to take us to that part of the complaintwhich constitutes an offence. To put in other words, the necessaryaverments in the complaint disclosing the commission of the offencepunishable under Sections 294(b) and 341 resply of the IPC.

5. In the aforesaid context, our attention has been invited to thefollowing paragraphs of the complaint which read as under:- “3. The complainant humbly submits that she has been elected asa Treasurer for the Sadagopan Enclave Residents Association on15.08.2017 which is a registered one and working for the welfareof the society along with the President, Secretary and fourExecutive members.

4. The complainant further submits that the residents have beenpromised by the promoters about the sewage treatment plant, Gym,Kids Play Park, Roads, etc., as early as possible. Now the projecthas completed it’s eight years and still there were seven housesnot yet registered. The waste water is going into the lands belongingto the land owners and nearby land for the past eight years. Twoyears before the adjacent land owner on north side objected forthe flow of waste water which made to take a decision to controlthe flow and keep it onto the lands of land owners only. The landowners had accepted to the office bearers of 2016-17 to dig theirland with the help of JBC and the waste water had run into thatsaid lands.

5. The complainant further submits that the Current Office Bearershave received a continuous and constant complaint from theresidents adjacent to the septic tank about the excessive flow ofwaste water and the said office bearers have tried to control thewater flow by Using 21 round cement stones into the earth andthe maximum water flow is going outside. But the said residents A

B

C

D

E

F

G

H

were not at all satisfied and reported in the whatsapp that reptilesare coming to their house due to the septic tank and wanted tobulk sewage treatment plant. In the society meetings of theprevious office bearers, the STP quotation is 35 lakhs which wasrefused by the society members i.e. residents.

A

B6. The complainant further submits that mean while the residentof Plot No. 7F adjacent to the septic tank has tried to level andbuild some construction work in the STP area and the necessarymaterials were supplied and kept in the common STP area, it wasopposed by all the residents but the said resident has argued thathe is the man aggrieved and he is having the land over there asCper his legal documents. The current office bearers replied thatas per the construction agreement of all the residents, no one shallchange the elevation outer colour scheme of the building, and shallalter or permit to be altered the flat to be constructed. But the saidresident refused to remove the materials even after the policeDadvice. The said resident has complained to the police officials

(Mr. Elango) about the waste water flow and subsequently thesaid police official advised the officer bearers for sending thewaste water by laying the PVC pipes. On the next day i.e.16.04.2018at4:30pm,whentheworkoflaying of the PVCpipes was being carried out, the residents enquired about the sameEand later one of the land owners, namely Mr. Madanagopal spokeunparliamentary words towards the workers. The workersthereafter informed Miss Lalitha (Treasurer) about this. She rushedto the spot and the said land owner once again used theunparliamentary words and was prepared to beat her.The securityFand the workers protected Miss Lalitha and she had no leave asthere was no other option. The police was informed that Mr.Madanagopal had uttered unparliamentary words and admittedsuch utterance that led to the lodging of the police complaint on17.04.2018 against Mr. Madanagopal, his wife Ms. Suseela, hiscousin sister Ms. Sarala (who resided outside the SadagopanGenclave), Mr. Partha Dass, his wife Ms. Lopamudra andMr. Venkatesh.”

[Emphasis supplied]

Thus, all that has been averred in the complaint is that the appellantHMadanagopal hurled unparliamentary words towards the complainant.

6. Section 294(b) of the IPC talks about the obscene acts andsongs. Section 294 of the IPC as a whole reads thus:

“294.Obscene acts and songs - Whoever, to the annoyance ofothers - (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 imprisonmentof either description for a term which may extend to three months,or with fine, or with both.”

7. 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 obscenityis to deprave and corrupt those whose minds are open to such immoralinfluences. The following passage from the judgment authored by JusticeK.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 committedan offence punishable under Section 294(b) IPC., by uttering thewords above-mentioned. The courts below have held that the wordsuttered were obscene and the utterance caused annoyance to thepublic. 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 ofthe matter charged as obscen- ity is to deprave and corruptthose whose minds are open to such immoral influences” Thistest has been uniformly followed in In- dia. The Supreme Courthas accepted the cor- rectness of the test in Ranjit D. Udeshiv. State of Maharashtra, AIR 1965 SC 881. In Samuel Rothv. U.S.A., 354 US 476 (1957), Chief Justice Warren said thatthe test of ‘obscenity’ is the “substantial ten- dency to corruptby arousing lustful de- sires”. Mr. Justice Harlan observedthat in order to be ‘obscene’ the matter must “tend to sexuallyimpure thoughts”. I do not think that the words uttered in thiscase have such a tendency. It may be that the words aredefamatory of the complainant, but I do not think that the wordsare ‘obscene’ and the utterance would constitute an offencepunish- able under S. 294(b) IPC”.

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A8. It has to be noted that in the instance case, the absence ofwords which will involve some lascivious elements arousing sexualthoughts or feelings or words cannot attract the offence under Section294(b). None of the records disclose the alleged words used by theaccused. It may not be the requirement of law to reproduce in all casesthe entire obscene words if it is lengthy, but in the instant case, there isBhardly anything on record. Mere abusive, humiliating or defamative wordsby itself cannot attract an offence under Section 294(b) IPC. To provethe offence under Section 294 of IPC mere utterance of obscence wordsare not sufficient but there must be a further proof to establish that itwas to the annoyance of others, which is lacking in the case. No one hasCspoken about the obscene words, they felt annoyed and in the absenceof legal evidence to show that the words uttered by the appellants accusedannoyed others, it can not be said that the ingredients of the offenceunder Section 294 (b) of IPC is made out.

9. Section 341 of the IPC talks about punishment for wrongfulDrestraint. Section 341 reads thus:

“341. Punishment for wrongful restraint - Whoever wrongfullyrestrains any person shall be punished with simple imprisonmentfor a term which may extend to one month, or with fine whichmay extent to five hundred rupees or with both.”

E

10. The complaint also fails to disclose the necessary ingredientsto constitute the offence of wrongful restraint. In order to attractapplication of Section 341 which provides for punishment for wrongfulrestraint, it has to be proved that there was obstruction by the accused;(ii) such obstruction prevented a person from proceeding in a directionFto which he had a right to proceed; and (iii) the accused caused suchobstruction voluntarily. The obstructor must intend or know or wouldhave reason to believe that the means adopted would cause obstructionto the complainant.

11. The averments made in the complaint according to us are notGsufficient to even constitute the offence of wrongful restraint. In theoverall view of the case, we are convinced that no case is made outagainst the appellants herein as alleged by the complainant.

12. Taking cognizance of an offence under Section 190(1) of theCr.P.C. and issue of process under Section 204 are judicial functionsand require a judicious approach. This is a proposition not only based onH

sound logic but is also based on fundamental principles of justice, as aperson against whom no offence is disclosed cannot be put to anyharassment by the issue of process. Issuance of process must bepreceded by an application of judicial mind to the material before thecourt to determine if there is ground for proceedings against the accused.When the allegations made in the complaint are found to be too vagueand general without giving any material particulars of the offence allegedagainst the accused then the order of the Magistrate issuing process onthe basis of the complaint would not be justified as there must be materialprima facie, for issuance of process. We have our own doubts whethereven the verification of the original complainant on oath was recordedbefore taking cognizance and issuing process.

13. In the result, the impugned order is set aside and the criminalproceedings of STS No. 566 of 2018 pending in the court of JudicialMagistrate, Alandur, Tamil Nadu are hereby quashed. Therefore, theappeal succeeds and is accordingly allowed.

Divya Pandey(Assisted by : Deepak Panwar, LCRA)

Appeal allowed.

A

B

C

D

E

F

G

H