Kerala HC Quashes FIR, Abusive Language in Private Call Not a 'Public Act'; Cognizable Offence Can't Be Added to Bypass Sec 155(2) CrPC Sanction
Sanchayita Lahkar
The Kerala High Court Single Bench of Justice G. Girish quashed criminal proceedings against an individual accused of using abusive language over a private phone call. The allegations were under Section 294(b) of the Indian Penal Code and Section 120(o) of the Kerala Police Act, 2011. The Court held that a private telephonic conversation does not meet the requirement of a public act under Section 294(b). It also found that the investigation into the non-cognizable offence under Section 120(o) was carried out without the mandatory sanction from the Magistrate under Section 155(2) of the Code of Criminal Procedure. As both legal requirements were not met, the Court held that the continuation of proceedings lacked legal basis and ordered them to be quashed.
The matter arose from a criminal miscellaneous petition filed under Section 482 of the Code of Criminal Procedure seeking quashing of proceedings pending before the Judicial First Class Magistrate Court, Kolenchery, in C.C.No.947 of 2016. The petitioner, named as the accused in Crime No.861/2016 of Puthencruz Police Station, was alleged to have committed offences under Section 294(b) IPC and Section 120(o) of the Kerala Police Act, 2011.
The prosecution case, as recorded in the judgment, was that on 19 June 2016, at approximately 11.53 PM, the petitioner called the defacto complainant and verbally abused him using “filthy language” during a telephonic conversation. It was stated that the motivation for the verbal exchange was ongoing disagreements between the petitioner and the complainant relating to certain Facebook posts regarding current affairs.
The prosecution registered the case on the basis of a complaint submitted to the Puthencruz Police Station. Following the completion of the investigation, a final report was submitted to the Judicial First Class Magistrate, Kolenchery, alleging the commission of the offences stated above. Certified copies of the First Information Report and the Final Report were annexed to the petition as Annexure A1 and Annexure A2 respectively.
The petitioner, through counsel, submitted that the alleged actions, even if accepted in totality, would not satisfy the essential ingredients of either of the penal provisions invoked. It was contended that Section 294(b) IPC required the offensive conduct to take place “in or near any public place,” a criterion not met by a private phone call. Additionally, it was argued that the offence under Section 120(o) of the Kerala Police Act is non-cognizable, and the investigation conducted without obtaining the prior permission of the Magistrate, as mandated by Section 155(2) of the Criminal Procedure Code, rendered the proceedings legally unsustainable.
The Public Prosecutor appeared for the State and submitted that the offence under Section 294(b) IPC had been incorporated into the complaint as it was considered cognizable, thereby forming the basis for the investigation. There was, however, no contention from the prosecution regarding the grant of permission under Section 155(2) Cr.P.C. for investigating the non-cognizable component of the case.
The legal framework examined by the Court included Section 294(b) IPC, which penalizes obscene acts and songs near public places, and Section 120(o) of the Kerala Police Act, which deals with causing nuisance through abusive language. Also considered were Sections 155(1) and 155(2) of the Code of Criminal Procedure, which regulate the process of investigating non-cognizable offences.
Justice G. Girish undertook an analysis of whether the factual matrix of the complaint satisfied the statutory requirements of the offences charged. As regards Section 294(b) IPC, the Court stated: “Having regard to the nature of the accusations levelled against the petitioner, it is not possible to say that the offence under Section 294(b) IPC is attracted. This is due to the reason that a private telephone call between the petitioner and the defacto complainant will not attract the necessary ingredient… that the objectionable words must be uttered in or near any public place.”
With reference to the offence under Section 120(o) of the Kerala Police Act, the Court recorded that it is constitutes as non-cognizable. It was noted that “it is not possible for the Investigating Officer to proceed with the investigation without getting the formal permission of the Jurisdictional Magistrate under Section 155(2) Cr.P.C.” The Court held that no such permission had been obtained in the present case.
It was further stated: “The investigating agency did not prefer the above course due to the reason that the other offence registered against the petitioner under Section 294(b) IPC is a cognizable offence… As already stated above, this is a case where the facts do not constitute the offence under Section 294(b) IPC.”
The judgment criticized the inclusion of a cognizable offence without sufficient material as a means to bypass procedural safeguards: “The requirement of obtaining sanction under Section 155(2) Cr.P.C., for the investigation of a non-cognizable offence, cannot be bypassed by such shortcut methods of incorporating a cognizable offence in the FIR, even though there are apparently no materials before the investigating agency to register a case in connection with such an offence.”
Referring specifically to the case at hand, the Court concluded: “As far as the present case is concerned, the investigating agency was having no material before it to proceed with the investigation in connection with the offence under Section 120(o) of the Kerala Police Act, 2011, without the sanction from the Jurisdictional Magistrate.”
In light of the findings that neither of the offences was properly invoked or investigated in accordance with law, the Court stated that the proceedings lacked legal foundation. The judgment concluded with a categorical declaration that “the prosecution against the petitioner… is without any legal basis.”
Upon examination of the allegations, procedural lapses, and legal provisions applicable, the Court proceeded to issue a conclusive order in exercise of its jurisdiction under Section 482 of the Cr.P.C.
The judgment stated: “In the result, the petition stands allowed. The proceedings against the petitioner in C.C.No.947 of 2016 on the files of the Judicial First Class Magistrate Court, Kolenchery, are hereby quashed.”
Advocates Representing the Parties
For the Petitioner: Adv. Legith T. Kottakkal
For the Respondents: Smt. Seetha S., Senior Public Prosecutor
Case Title: P.T. Jahangeer v. State of Kerala and Another
Neutral Citation: 2025:KER:22924
Case Number: Crl.M.C.No.2107 of 2019
Bench: Justice G. Girish
[Read/Download order]
