Decided on November 24,1967



- (1.) THE accused in S. T. 1038/66 on the file of the Sub divisional Magistrate, Adoor is the revision petitioner. He has been convicted by the learned Magistrate under S. 448 and 294 (b) IPC. and sentenced to pay a fine of Rs. 100/- under the former, and another Rs. 50/- under the latter. On appeal to the sessions judge of Quilon the conviction and sentence have been confirmed by the learned Addl. Sessions Judge.
(2.) THE prosecution case is that on 4-8-66 at about 6-40 p. m the accused forced open the door of the casualty ward of 'jayan Memorial hospital' and used obscene words at PW. 1 the doctor who was then engaged in examining a patient. THE words alleged to have been used are: THE charge was denied by the accused. Learned counsel would say that there were car dealings between the accused and PW. 1 and on the in date question the accused had gone to the doctor to get his brokerage and the doctor did not like his going over there at that time and so such a false complaint was made against him. Since there was no questioning under S. 342 of the Code he did not get an opportunity to explain these facts to the court. THE learned appellate judge has made some adverse comments against the trial court for not questioning the accused at any stage of the trial. Learned counsel for the petitioner argued that the accused has been very much prejudiced on account of the fact that no opportunity was given to him to put forward his plea. Decisions are conflicting on this point. Some courts have taken the view that in summons cases it is not obligatory on the part of the court to question the accused. THE questioning is to take place before the accused is called on for his defence. THE calling on the accused for his defence, as observed by a single Bench of this court in Kunjikkoya v. Noohukunju Ibrahim Kutty 1964 klt. 109: "has a definite meaning both in sessions and warrant cases under S. 289 and 256 but when examining Chapter XX containing the provisions applying to summons cases, the expression is not used. THE accused in a summons case does not "enter on his defence" but the Magistrate is bound "to hear the accused". THE proper interpretation to be put upon S. 342 by reason of these words is that it is to apply only to those cases where under other sections of the code the accused is to be called on for his defence. " This view is seen held by a Full Bench of the Madras High court in Ponnuswamy Odayar and others v. Ramaswamy Thothan AIR. 1924 Mad. 15 and another Full Bench of the Rangoon High Court in emperor v. Nga La Gyi and another AIR. 1931 Rang. 244. But certain other High courts have taken just the contrary view. THE Allahabad High Court, for instance, has taken the consistent view that S. 342 applies both to summons as well as to warrant cases, as it is for the benefit of the accused person to enable him to explain circumstances appearing in the evidence against him. In sia Ram v. Emperor AIR. 1935 Allahabad 217 Sulaiman, C. J. , has observed: "it may well be that there is much to be said in support of either view, but the preponderance of opinion has been in favour of the view that S. 342 applies both to summons and warrant cases". A subsequent Division Bench of the same High Court in manna v. State AIR. 1954 All. 578 after reviewing the two Full Bench decisions air. 1924 Mad. 15 and AIR. 1931 Rang. 244 has come to the view that S. 342 could be made to apply to both summons and warrant cases. It is true that both in warrant cases and sessions trials the questioning of the accused takes place before he is called on to enter on his defence; but it would be incorrect to say, in my view, that in summons cases since there is no stage when the accused is called on to enter on his defence, the court is handicapped from questioning him. Under S. 242, 244 and 245, opportunity is given to the court to question the accused even though he is not 'called on to enter his defence' under those sections. S. 242 comes at the earliest stage in a summons case. When he appears or is brought before the magistrate, the particulars of the offence of which he is accused are stated to him and he is asked if he has any cause to show why he should not be convicted. Under S. 244, the Magistrate proceeds to hear the complainant in case the accused does not admit his guilt, and takes all evidence that is produced in support of the prosecution and also hears the accused and takes all such evidence as is produced by him. The learned Magistrate is bound under S. 244 to hear the accused and that stage comes when the prosecution evidence is over and before the accused produces his evidence in defence. Thus the stage of questioning the accused in summons cases also comes before he produces bis evidence in defence; that is to say, technically before he is called on to enter on his defence. "the 'hearing of the accused'- signifies that he is to be asked what he has to say in his defence against the accusation laid against him and is explanation of the evidence adduced in support of the accusation. " (Vide AIR. 1945 Nag. 127 and AIR. 1922 Bom. 290 ). In S. 245 also an opportunity is given to the Court to question the accused; but that comes only as a result of reception of additional evidence at the instance of the magistrate. Any way, opportunity is there for the accused to state what he has to say and the court should give the accused this opportunity. The accused is very often prejudiced if he is not allowed to avail himself of this opportunity. In the present case, for instance, the accused did not get the opportunity to explain to the court the background of the complaint, viz. , the car transaction and his demanding the brokerage etc. My own view, therefore, is that the accused should be questioned in summons cases also about the circumstances appearing in the evidence against him. The non-questioning has prejudiced the accused; but in the view I take on the merits of the case I do not see the need for a retrial. On the merits there is hardly a case for the complainant. The words alleged to have been uttered by the accused cannot be considered obscene in the sense in which obscenity is understood under S. 294 (b ). This court has held many a time basing on the dictum of Cock-burn, C. J. , in Queen v. Hicklin 1868-3 Q. B. 360 and other leading decisions, that the test of obscenity 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 words uttered must be capable of arousing sexually impure thoughts in the minds of the hearers. I do not think the words uttered in the present case are such as would tend to arouse sexually impure thoughts or deprave and corrupt the mind of the complainant who is himself a doctor. The witnesses sited by the complainant have all turned hostile, expecting pw 2 the nurse who, it is said, was in the casualty room along with the doctor: but her evidence also is not helpful since she was unable to remember or repeat any of the words alleged to have been uttered by the accused. Except saying in a general way that some objectionable epithets were used by the accused, nothing more was stated by her evidence. Regarding the charge under S. 448 also, I should think that the accused should be acquitted. S. 448 deals with offence of house trespass; but it is doubtful whether a charge of trespass could be sustained against the accused. The very essence of the charge is wrong to possession and it is difficult for the complainant to establish possession of the casualty ward, where he was at the time of the occurrence. He is one of the employees in the hospital and it is not his private room. It is the casualty room where visitors are allowed and according to pws. 1 and 2 themselves, the accused was in the habit of going there and seeing the doctor often times. In these circumstances, I do not think that a charge of house-trespass could be sustained. In the result, the conviction and sentence areset aside and the accused is acquitted. Fine, if realised, will be refunded. The revision petition is allowed. Allowed.;

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