Mere Performance of an obscene or indecent act not sufficient to constitute offence of obscenity: Allahabad HC [Read Order]

Allahabad: The Allahabad High Court has recently held that the mere performance of an obscene or indecent act is not sufficient to constitute an offence of obscenity; there must be further proof to establish that it was to the annoyance of others. The court thereby also held that annoyance to others is essential to constitute an offence of obscenity.

"Annoyance to others" is a prerequisite to invoke the provision; the issue of "obscenity or indecency per se" will not arise until or unless there is evidence on record to show that a person witnessing a particular obscene act was actually annoyed," the court said.

FACTS

The facts of the case are that an FIR was registered against the petitioner under Section 294 IPC at Police Station Achalganj, District Unnao. The FIR alleged that he was passing obscene comments to females passing by from the Jumka Nala bridge. He was arrested but later released on bail with assurances from the police that no further action would be taken against him.

Subsequently, a chargesheet was filed against him, and the trial court issued summons against him. The present petition has been filed by the applicant under section 482 CrPC seeking quashing of the summoning order, chargesheet, and consequential proceedings.

ARGUMENTS

The counsel appearing on behalf of the applicant submitted that the arrest-cum-recovery memo did not have any independent witnesses, despite the alleged incident taking place at a bridge connecting a busy road accessible to the public. He further argued that the arrest proceedings were conducted in violation of Sections 100 and 165 of the CrPC and that the FIR was registered without preparing a site plan or examining any independent witnesses or the females against whom the obscene comments were allegedly made.

Additionally, the counsel for the applicant contended that the investigation was conducted in a tainted, botched-up, and hasty manner by the police merely to show good work. They proceeded to make a false, fabricated, and concocted case against the applicant, falsely implicating him while ignoring mandatory provisions of criminal law. The haste was evident as the chargesheet was filed within a week of the FIR, wherein only the statements of the police party members were recorded on one day, the site plan was prepared, and the informant's statement was recorded on another day. No independent witnesses or the alleged victims were examined.

The counsel for the applicant also argued that even if all the allegations leveled against the applicant were prima facie viewed, the offence alleged to have been committed by the applicant would not be made out since mere use of abusive, humiliating, or defamatory words by itself cannot attract an offense under section 294 of IPC. To bring home the charge under section 294, there must be further proof to establish that it was to the annoyance of others, which is completely lacking in the instant case.

Per contra, the learned AGA appearing for the state vehemently opposed these contentions and submitted that there was ample evidence against the applicant. He further argued that the police party had cautiously nabbed the applicant red-handed while he was creating a nuisance in a public place and passing obscene comments on girls and ladies.

He further stated that the police had thoroughly conducted the inquiry against him and filed a chargesheet considering the material on record. He further argued that no interference was required in the matter and that the present application, being devoid of merit and substance, should be rejected.

DECISION

The court, after hearing both parties, observed that the arrest-cum-recovery proceedings conducted by the police were in gross violation of provisions of sections 100 and 165 CrPC.

Further, the court, on perusal of the records, also held that "the investigation of the instant case has been conducted in a tainted, botched-up and hasty manner by the police merely in order to show up the good work and has proceeded to make out a false, fabricated and concocted case and has falsely implicated the applicant in the present case wherein the police has completely ignored the mandatory provisions of criminal law."

Additionally, the court also held that the object and scope of section 294 of IPC were intended to prevent an obscene or indecent act from being performed in public to the annoyance of the public at large.

"The instant case is a gross misuse of penal laws in particular and criminal law in general since no criminal offence is made out from the perusal of aforesaid facts and the impugned summoning order has been passed in an arbitrary manner without giving consideration to the material on record and lack of due application of judicial mind."

In conclusion, the court, while referring to a catena of cases decided by the Hon'ble Supreme Court and in light of the observations and discussions, allowed the present application. The court observed that the investigation of the instant case was conducted in a tainted, botched-up and hasty manner by the police merely to show up the good work, resulting in a false, fabricated and concocted case that falsely implicated the applicant.

[Read Order]