Justice Jobin Sebastian observed:

“the mere utterance of obscene words would not, by itself, automatically attract an offence under Section 354A(1)(iv) of the IPC. There must be a specific allegation that the accused had made sexually coloured remarks against the de facto complainant. A general abuse directed at a woman does not, by itself, constitute an offence under Section 354A(1)(iv) of the IPC.”

The Court also remarked that use of filthy language against a woman without the intention to insult the modesty would not make out the offence under Section 509 IPC [Word, gesture or act intended to insult the modesty of a woman].

“to attract Section 509, it must be established that the accused uttered any word, made any sound or gesture, or exhibited any object, with the intention of insulting the modesty of a woman. Therefore, the intention to insult the modesty of a woman is an indispensable ingredient of the offence,” it added.

The Court was considering a plea for quashing criminal proceedings preferred by the sole accused in a crime registered in Kalpetta. He is accused of the offences under Sections 354A(1)(iv) [Sexual harassment by making sexually coloured remarks] , 294(b) [Obscene acts and songs], 506(ii) [criminal intimidation], and 509 of the Indian Penal Code.

The allegation against the petitioner was that he abused a lady in filthy language in the presence of others due to previous enmity. Thereafter, when the de facto complainant and her daughter went to question him about it, the accused showered abuses against them on the public road in front of his house and also made sexually coloured remarks against them. It is further alleged that he thus outraged their modesty and also threatened to kill them by showing a machete.

The petitioner argued that he was innocent and that the allegations do not attract the offences alleged. The prosecution opposed the plea and contended that the allegations are serious.

After hearing the parties, the Court opined that the question as to whether the words uttered by the petitioner could attract the offence under Section 294(b) IPC could only be conclusively determined during trial.

It added: “Whether the words allegedly uttered had the capacity to generate impure thoughts in the minds of the audience, or whether the words uttered amounted to obscene words, etc., can also be considered only after trial.”

Considering the allegations, the Court was of the view that the offence under Section 506 IPC is prima facie made out. With respect to the offence under Section 354A(1)(iv), it was observed that the same would not be attracted since a general abuse was made without a sexually coloured remark.

Next, the Court remarked that the question as to whether the abusive words uttered by the petitioner would attract Section 509 IPC can also be decided upon appreciating the evidence:

“The question whether the utterance of the aforesaid words would constitute an offence under Section 509 of the IPC can be determined conclusively only after considering the conduct of the accused and the circumstances in which those words were uttered. In other words, whether, by uttering the aforesaid words, the accused intended to insult the modesty of the de facto complainant is a matter of evidence, which can be determined only after trial, upon appreciation of the evidence that may be adduced in the case.”

The Court was of the opinion that the offence under Section 354A(1)(iv) can be quashed while making the petitioner face trial for the other offences alleged.

Thus, it allowed the plea in part.

Counsel for the petitioner: S. Sabarinadh, A. Jayasankar, Indulekha Joseph

Counsel for the respondents: V.R. Ramlal – Public Prosecutor