N. S. MADHANAGOPAL & ANR.versusK. LALITHA

                        [2022] 15 S.C.R. 649                              649


                N. S. MADHANAGOPAL & ANR.                                 A
                                  v.
                            K. LALITHA
                 (Criminal Appeal No. 1759 of 2022)
                        OCTOBER 10, 2022                                  B
      [S. ABDUL NAZEER AND J. B. PARDIWALA, JJ.]
       Penal Code, 1860 – ss.294(b), 341 – When not attracted –
Verbal altercation between parties on excessive flow of waste water
in the society – Complaint filed by respondent for offences
                                                                          C
u/ss.294(b), 341 – Application filed by appellants for quashing of
criminal proceedings, rejected by High Court – On appeal, held:
All that has been averred in the complaint is that the appellant hurled
unparliamentary words towards the complainant – s.294(b) talks
about the obscene acts and songs – The test of obscenity u/s.294(b)
is whether the tendency of the matter charged as obscenity is to          D
deprave and corrupt those whose minds are open to such immoral
influences – Mere utterance of obscence words not sufficient – There
must be further proof to establish that it was to the annoyance of
others, which is lacking in the present case – Mere abusive,
humiliating or defamative words by itself cannot attract offence
                                                                          E
u/s.294(b) – In the present case, the absence of words which will
involve some lascivious elements arousing sexual thoughts or
feelings or words cannot attract the offence u/s.294(b)– No one
spoke about the obscene words – In absence of legal evidence
showing that the words uttered by the appellants annoyed others,
the ingredients of the offence u/s.294(b) not made out – Further,         F
averments in the complaint are not sufficient to even constitute the
offence of wrongful restraint u/s.341 – No case made out against
the appellants as alleged by the complainant – Impugned order set
aside – Pending criminal proceedings quashed – Code of Criminal
Procedure, 1973 – ss.482, 190(1), 204.
                                                                          G
      Penal Code, 1860 – ss.294(b), 341 – Test of obscenity
u/s.294(b); ingredients to constitute offence of wrongful restraint
u/s.341 – Discussed.
      Code of Criminal Procedure, 1973 – ss.190(1), 204 – Held:
Taking cognizance of an offence u/s.190(1) and issue of process           H
                             649
650            SUPREME COURT REPORTS                          [2022] 15 S.C.R.


A     u/s.204 are judicial functions and require judicious approach –
      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 – If the allegations made in
      the complaint are too vague and general without giving any material
      particulars of the offence alleged then the order of the Magistrate
B
      issuing process on the basis of the complaint would not be justified
      as there must be material prima facie, for issuance of process.
            P. T. Chacko v. Nainan 1967 KLT 799 – approved.
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
C     1759 of 2022.
            From the Judgment and Order dated 01.04.2022 of the High Court
      of Judicature at Madras in Crl. O.P. No. 5627 of 2019.
            S. Vallinayagam, M. A. Chinnasamy, Ms. C. Rubavathi,
      C. Raghavendren, M. Veera Ragavan, Ms. Kajal Singhal, Rajeev Gupta,
D     Advs. for the Appellants.
            Dr. Zulfiqar Ali Khan, Ms. K. Bhuvaneswari, Ms. R. Sarala, Md.
      Shahid Anwar, Advs. for the Respondent.
            The following Order of the Court was passed:
E                                    ORDER
            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 Court
      of the Judicial Magistrate at Alandur, Tamil Nadu for the offences
F     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
G     complainant). The High Court ultimately rejected the application filed by
      the appellants herein under Section 482 of the Code of Criminal
      Procedure (for short “The Cr.P.C.).
              3. It appears from the materials on record that the parties to this
      litigation are residing at one common enclave called the Sadagopan
H     Enclave, Kannappan Street, Chromepet Road, Nanmangalam, Chennai.
        N. S. MADHANAGOPAL & ANR. v. K. LALITHA                                  651


The respondent herein, the original complainant filed an application             A
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.
                                                                                 B
      4. 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.                      C

      5. 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            D
       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,          E
       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          F
       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        G
       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
                                                                                 H
652            SUPREME COURT REPORTS                          [2022] 15 S.C.R.


A           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.
B           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
C           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
D           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
E           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
F           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
G           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
H     Madanagopal hurled unparliamentary words towards the complainant.
        N. S. MADHANAGOPAL & ANR. v. K. LALITHA                                653


      6. Section 294(b) of the IPC talks about the obscene acts and            A
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
             (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.”
       7. It is to be noted that the test of obscenity under Section 294(b)    C
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:
                                                                               D
      “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        E
      ‘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       F
          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
                                                                               G
          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”.                                   H
654             SUPREME COURT REPORTS                          [2022] 15 S.C.R.


A            8. 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
B
      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
C     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.
             9. Section 341 of the IPC talks about punishment for wrongful
D     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.”
E             10. 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
F     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.
             11. The averments made in the complaint according to us are not
G     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.
            12. 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
H
         N. S. MADHANAGOPAL & ANR. v. K. LALITHA                               655


sound logic but is also based on fundamental principles of justice, as a       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
                                                                               B
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.                                  C
      13. 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.
                                                                               D
Divya Pandey                                                 Appeal allowed.
(Assisted by : Deepak Panwar, LCRA)




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