Present: Maartensz A.J.
CROOS, v. SHAFI.629—P. G. Tangalla, 17,906.
Using obscene language—Public place—Evidence of annoyance—PenalCode,287.
In a prosecution for uttering obscene words in a public place-there should be evidence that the language used caused annoyanceto some person.
PPEAL from a conviction by the Police Magistrate ofTangalla. The facts appear from the judgment.
Soertsz (with Rajakariar), for accused, appellant.
October 20, 1926. Maartensz A.J.—
The accused appeals from a conviction under Section 287 of thePenal Code for uttering certain obscene words in a public place,to wit, near the public road in front of the police station, to theannoyance of the public.
Two points were argued in support of the appeal: —
(a) That the words were uttered at the police station, which iff.not a public place; and
(6) That there is no evidence that anyone was in fact annoyed'by the language used by the accused.
It is not clear from the plaint where the accused was when betittered the obscene words. According to the evidence of the*sergeant he was on the road running by the side of the policestation which leads to the "upper resthouse.*1 I take it this isa public road—the evidence might have been more explicit—and'the accused was in a public place when he uttered the obscene-words. If the contention in the Court below was that the accusedwas not in public place, the point would, I think, have been takenin the petition of appeal. The petition of appeal is restricted to*the second point taken at the argument, and I am not preparedto interfere with the conviction of the accused on the ground thatthe accused was not in a public place.
The second point was taken at the trial as well, and the Magistrateheld that there was no necessity for evidence that the words used,in this case annoyed anyone. He observes that the words usedwere so objectionable that they would annoy any ordinary personwho heard them; that he had no doubt the words used annoyedeveryone present at the time they were uttered.
( 234 )
I entirely agree with the Magistrate that the words used werevery objectionable, and would in all probability have annoyed theperson who heard them. But unfortunately none of the witnesseshas said that he was in fact annoyed by the words. In view of theprovisions of the section, which runs: ” Whoever utters any obscenewords to the annoyance of others,’’ it is essential that thereshould be evidence of annoyance. As Gour puts it on page 1356 ofVolume I. of his Commentary on the Penal Law of India, ** theremust be actual annoyance, and not merely the probability of it.There must be some person to say that the act done or the song sunghad annoyed him.” This statement is equally applicable to a chargeot uttering obscene words.
Though I regret having to do so, the appeal must be allowed andthe accused acquitted.
CROOS v. SHAFI