Law relating to uttering obscene words
The Section 294 of Indian Penal Code (IPC), states that whoever, to the annoyance of others, does any obscene act in any public place, or 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.
Offence must be in public place
In order to attract Section 294(b) IPC, it is necessary for the prosecution to prove that the offence had been committed in the public place.
Public place is one where the public go, no matter whether they have a right to go or not. The public place may vary from time to time and what the court has to consider is whether the particular place is a public place or not.
If the alleged occurrence in respect of offence under Section 294(b) IPC had happened in the house, then the said alleged act does not come within the purview of Section 294(b) IPC.
FIR must state the obscene words uttered
In Preethimon v State Of Kerala the High Court of Kerala states that a vague or general statement in the FIR that the accused showered obscene words is not enough to constitute an offence under Section 294(b) IPC. It is necessary to state the words uttered by the accused.
The prosecution would not be justified in bringing in the evidence for the first time the words allegedly spoken to by the accused, when the same is not recorded in the First Information Statement (FIS) in a case instituted upon police report. The complaint or the FIR, as the case may be, shall contain the words spoken to by the accused, which, according to the prosecution, would attract the offence under Section 294(b) of the IPC.
Otherwise, there is every possibility of evidence being tendered putting forth any words as the prosecution witnesses may wish to put forward improving upon or adding to the allegation in the complaint or FIR causing great prejudice to the accused and depriving his right to have a fair trial.
Abusive words do not amount to obscenity
Abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined under the law. Even if the words alleged to have been used are in fact abusive and humiliating, in order t to make it obscene, punishable under Section 294(b) IPC, it must satisfy the definition of obscenity.
The Section 294 IPC does not define obscenity. Being a continuation of the subject dealt with under Section 292 IPC the definition of obscenity under 292(1) IPC can be applied in a prosecution under Section 294 IPC also.
To make it punishable, the alleged words must be in a sense lascivious, or it must appeal to the prurient interest, or will deprave and corrupt persons.
Words must be lascivious or arouse immoral thoughts
In P.T Chacko v. Nainan Chacko reported in (1967 KLT 799) the High Court of Kerala held 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.
In Sangeetha Lakshmana v. State of Kerala reported in (2008 (2) KLT 745) the High Court of Kerala held that in order to satisfy the test of obscenity, the words alleged to have been uttered must be capable of arousing sexually impure thoughts in the minds of its hearers.
The word “rascal” does not have the tendency of depraving or corrupting those minds which are open to the prurient of lascivious influences. The word “rascal” may at best amount to “scoundrel, rogue or scamp” very often used jokingly or paradoxically, the said word is not known to have any tinge of obscenity.
Thus, it is quite clear that, to make obscene the alleged words must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons, and defiling morals by sex appeal or lustful desires.
Every abusive word or every humiliating word cannot, by itself, be said to be obscene under Section 294 (b) of the IPC.
In Narendra H. Khurana And Ors. v Commissioner Of Police And Anr, it was held by the Bombay High Court that the performance of cabaret dance which is obscene act per se does not attract the provision of 294 IPC without fulfilment of essential ingredients, such annoyance to others, of the Section.
Private obscene letters do not attract the offence
Even writing obscene letters and sending it to a personal address for reading them by a victim in her privacy does not attract the offence, says the Supreme Court in Pawan Kumar v State Of Haryana And Anr.
Recent Kerala High Court order
In an order issued on 5th November 2021 in Avinash v State of Kerala (2021(6) KHC 357), the High Court of Kerala stated that with respect to the charge 294(b) IPC, the complaint, statements and final report must mention the words uttered by the accused.
The test of obscenity is that the sords must deprave and corrupt those whose minds are open to such immoral influences. In the absence of some lascivious words arousing sexual thoughts or feelings it is not possible to attract 294(b) IPC.
