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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Basic concept of Nuisance

"Any material interference with the ordinary comfort of existence; that would be a nuisance... "Annoyance" is a wider term than nuisance, and if you find a thing which reasonably troubles the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of a house-if you find there is anything which disturbs his reasonable peace of mind, that seems to me to be annoyance although it may not appear to amount to physical detriment to comfort."

Therefore, whatever causes material interference with the ordinary comfort of existence would be nuisance and anything that disturbs the reasonable peace of ordinary person and leads to un-pleasurable feeling, would be annoyance. Jessel M.R. In Watson v. Lamington College, 25 S.J. 30, said that it might perhaps be difficult to appreciate the difference between "nuisance" and "annoyance", but as both words were used, "annoyance," evidently meant something less than "nuisance", while Tod-Heatley v. Benham 40 Ch. D. 80 , "annoyance" was treated to have a wider meaning than "nuisance".

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 975 of 1982

Decided On: 15.12.1983

 Gulam Husain Mirza

Vs.

 Laxmidas Premji alias Sagar Premji and Anr.

Hon'ble Judges/Coram:

B.A. Masodkar, J.

Citation: 1984 MHLJ215

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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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