Supreme Court: What are essential ingredients of offence punishable U/S 294 of IPC?

 However, what is important to observe is that whenever any application is filed by the complainant before the Court of Judicial Magistrate seeking police investigation Under Section 156(3) of the Code of Criminal Procedure, it is the duty of the concerned Magistrate to apply his mind for the purpose of ascertaining whether the allegations levelled in the complaint constitute any cognizable offence or not. In other words, the Magistrate may not undertake the exercise to ascertain whether the complaint is false or otherwise, however, the Magistrate is obliged before he proceeds to pass an order for police investigation to closely consider whether the necessary ingredients to constitute the alleged offence are borne out on plain reading of the complaint. {Para 11}

12. In the case on hand, it appears that the Magistrate passed an order directing police investigation mechanically and without ascertaining whether the allegations levelled disclose commission of any offence or not.

13. It is the case of the complainant that the Appellant herein committed offence punishable Under Section 294 of the Indian Penal Code. The Magistrate very promptly accepted this contention without ascertaining if the necessary ingredients required to constitute the offence were disclosed in the complaint or not. In our view, even if all the allegations as levelled in the complaint are believed to be true, none of the ingredients to constitute the offence punishable Under Section 294 of the Indian Penal Code could be said to be borne out.

14. In so far as Section 294 of the Indian Penal Code is concerned, this Court in N.S. Madhanagopal and Anr. v. K. Lalitha reported in MANU/SC/1805/2022 : (2022) 17 SCC 818 has explained the true purport and scope of Section 294. We quote the relevant observations as under:

6. Section 294(b) Indian Penal Code talks about the obscene acts and songs. Section 294 Indian Penal Code as a whole reads thus:

294. Obscene acts and songs.-Whoever, to the annoyance of others-

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene songs, 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.

7. It is to be noted that the test of obscenity Under Section 294(b) Indian Penal Code 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 following passage from the judgment authored by K.K. Mathew, J. (as his Lordship then was) reported in P.T. Chacko v. Nainan Chacko [P.T. Chacko v. Nainan Chacko,   MANU/KE/0284/1967 : 1967 KLT 799] explains as follows: (SCC OnLine Ker paras 5-6)

5. The only point argued was that the 1st Accused has not committed an offence punishable Under Section 294(b) Indian Penal Code, by uttering the words above-mentioned. The courts below have held that the words uttered were obscene and the utterance caused annoyance to the public. I am not inclined to take this view. In R. v. Hicklin [R. v. Hicklin, (1868) LR 3 QB 360], QB at p. 371 Cockburn, C.J. Laid down the test of "obscenity" in these words: (QB p. 371) '... the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences....'

6. This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in Ranjit D. Udeshi v. State of Maharashtra [Ranjit D. Udeshi v. State of Maharashtra,   MANU/SC/0080/1964 : 1964:INSC:171 : AIR 1965 SC 881]. In Roth v. United States [Roth v. United States, 1957 SCC OnLine US SC 106: MANU/USSC/0157/1957 : 1 L Ed 2d 1498 : 354 US 476 (1957)], Chief Justice Warren said that the test of "obscenity" is the 'substantial tendency to corrupt by arousing lustful desires'. Mr. Justice Harlan observed that in order to be "obscene" the matter must "tend to sexually impure thoughts". I do not think that the words uttered in this case have such a tendency. It may be that the words are defamatory of the complainant, but I do not think that the words are "obscene" and the utterance would constitute an offence punishable Under Section 294(b) Indian Penal Code.

8. It has to be noted that in the instance case, the absence of words which will involve some lascivious elements arousing sexual thoughts or feelings or words cannot attract the offence Under Section 294(b). None of the records disclose the alleged words used by the Accused. It may not be the requirement of law to reproduce in all cases the entire obscene words if it is lengthy, but in the instant case, there is hardly anything on record. Mere abusive, humiliating or defamatory words by itself cannot attract an offence Under Section 294(b) Indian Penal Code.

9. To prove the offence Under Section 294 Indian Penal Code mere utterance of obscene words are not sufficient but there must be a further proof to establish that it was to the annoyance of others, which is lacking in the case. No one has spoken about the obscene words, they felt annoyed and in the absence of legal evidence to show that the words uttered by the Appellant- Accused annoyed others, it cannot be said that the ingredients of the offence Under Section 294(b) Indian Penal Code is made out.

15. We fail to understand how the act of a police officer assaulting the complainant within public view or public as alleged would amount to an obscene act. Obscene act for the purpose of Section 294 has a particular meaning. Mere abusive, humiliating or defamatory words by themselves are not sufficient to attract the offence Under Section 294 of the Indian Penal Code.

16. Thus, in so far as Section 294 of the Indian Penal Code is concerned, we are of the view that no case is made out to put the Appellant/Accused to trial.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 352/2020

Decided On: 16.01.2025

Om Prakash Ambadkar Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Citation:  MANU/SC/0134/2025, 2025 INSC 139.

Read full Judgment here: Click here.

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Supreme Court: What precautions the Magistrate should take before ordering investigation U/S 156(3) of CRPC{S 175 of BNSS}?

 Thus, there are prerequisites to be followed by the complainant before approaching the Magistrate Under Section 156(3) of the Code of Criminal Procedure {S 175 of BNSS} which is a discretionary remedy as the provision proceeds with the word 'may'. The Magistrate is required to exercise his mind while doing so. He should pass orders only if he is satisfied that the information reveals commission of cognizable offences and also about the necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police. It is, thus, not necessary that in every case where a complaint has been filed Under Section 200 of the Code of Criminal Procedure the Magistrate should direct the Police to investigate the crime merely because an application has also been filed Under Section 156(3) of the Code of Criminal Procedure even though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses, with the assistance of the court or otherwise. The issue of jurisdiction also becomes important at that stage and cannot be ignored. {Para 24}

25. In fact, the Magistrate ought to direct investigation by the police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the police. The Magistrate is not expected to mechanically direct investigation by the police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police Under Section 156(3) of the Code of Criminal Procedure{S 175 of BNSS}. Ofcourse, if the allegations made in the complaint require complex and complicated investigation which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the police authorities. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 352/2020

Decided On: 16.01.2025

Om Prakash Ambadkar Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Citation:  MANU/SC/0134/2025, 2025 INSC 139.

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Whether it is mandatory to prepare and prove spot panchnama in offence U/S 294 of IPC?

 Section 294 in The Indian Penal Code

 [294. Obscene acts and songs.—Whoever, to the annoyance of others—

(a) does any obscene act in any public place, or

(b) 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.]

As per this section offence should occur in a public place. Hence the prosecution must prove that crime happened in a public place. Therefore it is mandatory for investigating officer to prepare spot panchnama to show that offence occurred in a public place. The prosecution can also prove that incident happened in a public place by adducing other evidence.

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Whether sending the personal messages on WhatsApp will amount to the utterance of obscene words in a public place?

Thus, the literature published on Website clearly indicates

that the WhatsApp messages sent by one person to another are end-toend

encrypted which means, only the sender of the message and the

recipient of the message can read the messages. It also claims that

nobody in between, not even WhatsApp, can read these messages.

These messages are secured with lock and only the recipient and

sender have special key needed to unlock and read them. It further

claims that every message sent has its own unique lock and key. It

also claims that the WhatsApp does not store the messages on server,

once they are delivered. Thus, this literature available on the Website

of the WhatsApp, makes it abundantly clearly that such types of

messages are strictly personal messages and nobody even the

WhatsApp can have access to these messages which means nobody

except the sender and the recipient can read the messages. Thus,

when these messages cannot be read by others, it ipso-facto goes to

show that no third person nor even WhatsApp can have access to those

messages. Therefore, WhatsApp cannot be a public place if messages

are exchanged on personal accounts of two persons. If these messages

had been posted on WhatsApp Group, in that case the same could

have been called as public place because all the members of the

group, will have access to those messages. It is not the prosecution

case that the alleged obscene messages were posted on WhatsApp

Group of which the petitioner and the respondent No. 2 and others are

the members. Therefore, sending the personal messages on WhatsApp

will not amount to utterance of obscene words in public place.

Therefore, Section 294 of the I.P.C. cannot be invoked.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 557 OF 2018

Nivrutti  Hariram Gaikwad, Vs The State of Maharashtra,

CORAM : T.V. NALAWADE &

M.G. SEWLIKAR, JJ.

Dated : 11.03.2020

JUDGMENT : [PER : M.G. SEWLIKAR, J.]

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Whether prosecution U/S 498A and S 294 of IPC can be quashed?

 Thus, in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.

38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording

 Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred."

12. Accordingly, the documents referred to by the applicants with regard to vehicles owned by them can be looked into. Furthermore, the offence under Section 294 of the IPC is not made out as the incident has taken place within the house of the complainant-wife. It appears that the prosecution has been initiated on account of scuffle which has taken place on 8.9.2013. However, in order to drag more offences against the applicants, the allegations with regard to demand of Indica car have been made. Further, the reliance has been placed by learned counsel for respondent No.2 on the judgment of Hon'ble Supreme Court in Taramani Parakh's case (supra), wherein the Court in paragraph 11 has observed that if the allegations are absurd and do not make any case or if it can be held that there is abuse of process then the proceedings can be quashed. However, the Court has been cautioned from entering into the reliability of the evidence and to discuss about the version and counter version.

13. In the considered opinion of this Court, in the case at hand, as discussed above, the allegations are absurd and have been levelled to make the case more grave. Therefore, following the mandate of Hon'ble the Supreme Court, the powers under Section 482 CrPC are exercised for quashing the FIR to the extent it relates to the offences under Section 498-A and 294 of the IPC.

Madhya Pradesh High Court

Kunaldev Singh Rathore @ Kunal Dev ... vs State Of M.P on 2 December, 2016

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Whether any obscene act in private place causing no annoyance of others constitutes offence punishable U/S 294 of I.P.C. ?

 Considering the challenge in the instant petition,
short question that arises for consideration is,
“ Whether any obscene act in a private place causing no
annoyance of others constitutes an offence punishable
under section 294 of I.P.C. ? ”

10. Before adverting to this aspect on merits, it would
be useful to reproduce the provisions of section 294 of I.P.C.
for ready reference. This section reads as under:-
“ 294. Obscene acts and songs - Whoever, to the
annoyance of others-
(a) does any obscene act in any public place, or
(b) 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.”
11. From the perusal of the above penal provision
which is invoked against petitioners / accused persons, it is
seen that any obscene act for constituting offence punishable
under section 294 of I.P.C. needs to be done in any public
place and the same is also required to cause an annoyance to
others. Similarly, if any person recites or utters obscene song,
ballad or words, in or near any public place, thereby causing
annoyance to others, then he can be said to have committed

an offence punishable under section 294 of I.P.C. Keeping in
mind these ingredients of section 294 of I.P.C., let us examine
whether averments made by informant prima facie fulfills
requirement of the offence punishable under section 204 of
I.P.C.
12. The main ingredient of section 294 of I.P.C. is
commission of an obscene act at a public place. The Black's
Law Dictionary, Eight Edition defines public place as under:-
“public place – Any location that the local, state or
national government maintains for the use of the public,
such as a highway, part, or public building. ”
13. Section 294 of I.P.C. is meant for punishing persons
indulging in obscene act in any public place causing
annoyance to others. As such, the places where such obscene
act is committed needs to be a public place and meant for use
of public at large. Public must have free access to such place
so as to call it a public place. The place where public have no
right rather a lawful right to enter into, cannot be said to be a
public place for invoking the penal provisions of section 294 of
I.P.C. for calling a place as a public place. It must be shown

that public at large has a right to have free ingress to such
place. Viewed from this angle, the flat / apartment in building
owned by some private person meant for private use of such
owner cannot be said to be a public place. It is not the case
of respondents that any member of the public has free access
to the flat bearing Flat No.C-201 located in Evershine Cosmic,
Kureshi Compound, Andheri (W), Mumbai. For resorting to the
penal provision of section 294 of I.P.C., the prosecution is
obliged to make out that the obscene act were performed at a
public place or singing, recitals, or utterances of any obscene
song, ballad or words were done in any public place.
14. Careful perusal of the F.I.R. lodged by informant
Mr.Jagjit Girmile and that too after conducting raid by police
along with panch witnesses does not show that the Flat No.C-
201, Evershine Cosmic, Kureshi Compound, Andheri (W),
Mumbai where the offence is alleged to have taken place is a
public place, wherein any member of the public had free and
lawful right to enter into. The F.I.R. in question was lodged on
the basis of prior intimation given by the informant Jagjit
Girmile to police and after conducting raid in presence of two
panch witnesses by police squad. Naturally, the F.I.R. which is

lodged subsequent to the raid is reflecting the entire episode.
The F.I.R. in question vividly describes each and every
particulars of the event right from the receipt of information,
preparation for raid and post raid events allegedly occurred in
Flat No.C-201 Evershine Cosmic, Kureshi Compound, Andheri
(W), Mumbai witnessed by the raiding police party. There is
no whisper in the F.I.R. that sound of music was being emitted
out from the flat in question and that too, to the annoyance of
the neighbourers and others. Rather, perusal of the F.I.R.
reveals that when the raiding party rang the door bell and
when members of the raiding party entered inside the flat,
they heard sound of music coming from the last room of the
flat. The F.I.R. does not disclose that sound of music coming
from the flat was annoying others. Similarly, the F.I.R. lodged
after the raid does not indicate that the activities which were
allegedly happening inside the flat were causing annoyance to
neighbourers or others. As such, even if the averments and
allegations made in the F.I.R. are accepted as it is, then also, it
cannot be said that the material contained in the F.I.R.
discloses any conginable offence, even prima facie. Obscene
act done in a private place or viewed in privacy is not covered
by the provisions of section 294 of I.P.C.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.127 OF 2016
Amardeep Singh Chudha,

V/s.
The State of Maharashtra

CORAM : NARESH H. PATIL AND
A.M. BADAR, JJ.
 DATED : 10TH MARCH, 2016
Citation:2016 ALLMR(CRI)2195

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Whether document can be read in evidence even if it is not formally proved?

We accordingly hold that Sub-section (3) of Section 294 of Cr. P.C. covers the PM report and every other document of which genuineness is not disputed and all such documents can be read in evidence as genuine without the formal proof of such documents by examining the author thereof.

13. Consequently, we respectfully agree with the view taken by the Full Bench of the Bombay High Court and the Allahabad High Court in the decisions reported in 1983 Cri LJ 487 (Shaikh Farid Hussinsab v. State of Maharashtra) and 1981 Cri LJ 379 (Saddiq v. State) respectively and approve the view expressed by the Division Bench of this Court in the decision reported in ILR 2001 Kant 2660 (Sanne Gowda alias Gopala v. State by Sakaleshpur Rural Police) and disapprove the observations made by the Division Bench of this Court in the case of Anjinappa v. State of Karnataka reported in ILR 2000 Kant 3501 and hence it stands overruled.

Karnataka High Court

Boraiah Alias Shekar vs State on 20 December, 2002

Equivalent citations: 2003 (1) ALD Cri 951, 2003 CriLJ 1031

Bench: B Padmaraj, M Chinnappa, M Chellur

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