Abdul Razak v. State Of Kerala, Represented Through The Public Prosecutor

Alexander Thomas, J.:— The prayer in Crl.M.C. No. 6922/2019 is to quash the entire proceedings emanating from the impugned criminal proceedings in respect of Crime No. 618/2019 of Fort Kochi Police Station. Crl.M.C. No. 3790/2019 has been filed by the very same accused and in the said petition he challenges the interlocutory order passed by the court below concerned, rejecting the plea of the petitioner to get interim custody of the seized mobile phone. As the matters are connected, these cases are disposed of on the basis of this common order.

Crl.M.C. No. 6922 of 2019

2. The prayer in the above Crl.M.C. No. 6922/2019 is as follows:

“i. Quash Annexure A-1 FIR dated 13/04/2019 in Crime No. 618/2019 of Fort Kochi Police Station and all further proceedings pursuance to the same; &

ii. Issue such other orders as this Hon'ble Court deem just and proper.”

3. Heard Smt. Amrin Fathima, learned counsel appearing for the petitioner accused and Sri. Amjad Ali, learned Prosecutor appearing for the 1 respondent State. Though the 2 respondent lady defacto complainant has been duly served, there is no appearance for that party.

4. The petitioner has been arrayed as the sole accused in the instant Anx.A1 Crime No. 618/2019 of Fort Kochi Police Station, which has been registered for offences punishable under Secs.354D & 294(b) of the IPC. The said crime has been registered on the basis of the FIS given the 2 respondent lady defacto complainant on 13.4.2019 at about 7.30 pm in respect of the alleged incidents which have happened on the same day (13.4.2019) at about 3.45 pm. The police after investigation has now filed Anx.A2 final report/charge sheet in this case and now the case is pending as C.C. No. 1603/2019 of the JFCM, Mattancherry.

5. The prosecution case in short is that, on 13.4.2019 while the 2 respondent lady defacto complainant aged 39 years had reached near St. Francis, Fort Kochi, the petitioner accused aged 49 years had followed her and taken her photographs without her consent and when she objected to her he uttered some obscene and foul words to her, etc.

6. The allegation against the petitioner is that he has committed offences as per Secs.354D & 294(b) of the IPC. The main contention raised by the petitioner is that, even going by the admitted prosecution allegations the abovesaid offences are not disclosed and therefore the very initiation and continuance of the very criminal proceedings is an abuse of the process of Court, as it is a futile exercise since it would lead to the acquittal of the accused, and that this Court may quash the impugned criminal proceedings.

7. According to the petitioner he is a professional photographer and has taken so many short films including his recent short film called “Prathi Pravasi Aanu”. That the petitioner is having lot of interest in film making, and now is committed to new film project called “Kaliyarangu” directed by famour director Sri. Madhupal, and the main role in the said film “Kaliyarangu” is enacted by the famous film actor Sri. Biju Menon, etc. That while making the film “Kaliyarangu”, the petitioner along with his colleague used to visit several places and capture locations in mobile phone which the petitioner thinks suitable for film locations. That in the month of April, 2019, he had visited Fort Kochi, and was looking for suitable film location and was engaged in the said activity. It is pointed out that during such time the petitioner would have taken the photograph of 2 respondent.

8. It is the specific allegation of the 2 respondent that the petitioner had taken her photograph without her permission, and when she objected the petitioner had used obscene words, etc. It is pointed out that the abovesaid allegations are factually incorrect and further that, even if it is assumed that the entirety of prosecution case are correct, still it will not make out both the alleged offences. It is also pointed out that the offence of stalking would necessarily require a series or repeated acts and solitary instance of alleged taking of photograph of a woman without her permission cannot be even remotely termed as stalking. Further that, it is well settled that mere use of obscene and foul language however obnoxious will not constitute the offence of obscenity unless the complainant has specific case that the alleged words used are lascivious which have the capability of arousing sexually impure thoughts in the minds of hearers. In the instant case, the complainant has no such case and she has not even stated as to what exactly are the alleged obscene words, and therefore the offence of use of obscene words as per Sec.294(b) of the IPC is also not made out, etc.

9. Sec.354D of the IPC which deals with stalking reads as follows:

“354D. Stalking

(1) Any man who-

(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:

PROVIDED that such conduct shall not amount to stalking if the man who pursued it proves that-

(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.”

10. A mere reading of the provision contained in Sec.354D of the IPC would make it clear that one of the prime ingredients to be satisfied is that, the accused man should have followed the woman and should have contacted or attempted to contact the woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman or monitors the use by a woman of the internet, email or any other form of electronic communication, etc. In the instant case the lady defacto complainant does not have a case that the petitioner has monitored her use of internet, email or any other form of electronic communication. Further that, her admitted allegation is only that the petitioner had taken her photograph in one occasion, without her permission. Thus it can be seen that a solitary instance as in the instant one cannot be remotely contemplated as stalking as understood in Sec.354D of the IPC. Hence the petitioner is right in contending that the vital ingredients of offence of stalking as per Sec.354D of the IPC are not made out even going through the admitted prosecution allegations.

11. Further, the allegation of the 2 respondent lady is that, when she had objected the petitioner from taking her photographs, he had used obscene words. There is no allegation anywhere in the FIS as to what exactly was the alleged obscene words. It is now well settled by a series of rulings as in Latheef v. State of Kerala [2014 (2) KLT 987], P.T. Chacko v. Nainan Chacko [1967 KLT 799] and Sangeetha Lakshmana v. State Of Kerala [2008 (2) KLT 745], that abusive or humiliating or defamatory words will not in as such amount to obscenity as defined in law and that even if the words used by accused are in fact highly abusive, humiliating and defamatory in nature. Inorder to make such words obscene, punishable under Sec.294(b) of the IPC, it must satisfy the definition of obscenity as contained in Sec.292 of the IPC. It has been held that to make obscene, the alleged words must involve some lascivious elements, arousing impure sexual thoughts or feelings or words, and must have the effect of depraving persons and defiling morals by sex appeal or lustful desires.

12. Further it is also well settled by a series of rulings of this Court that the complaint should necessarily disclose as to what exactly are the alleged words used by the accused. In the instant case, both the abovesaid aspects are conspicuously absent, and hence it is only to be held that the offence as per Sec.294(b) of the IPC is also not made out. Accordingly this Court is inclined to take the view that the initiation and continuance of the impugned criminal proceedings is nothing but a shear abuse of the process of court, inasmuch as it is a futile exercise and its further continuance would only amount to wasting precious resources and time of the police investigation machinery, prosecution agency and the courts.

13. In that view of the matter, it is ordered that the impugned Anx.A2 final report/charge sheet filed in the impugned Anx.A1 Crime No. 618/2019 of Fort Kochi Police Station, which has now led to the pendency of C.C. No. 1603/2019 on the file of the JFCM, Mattancherry, initiated against the petitioner accused and all further proceedings emanating therefrom against the petitioner accused will stand quashed.

14. The petitioner will produce certified copies of this order before Investigating Officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the Investigating Officer concerned for information.

15. With these observations and directions, the above Criminal Miscellaneous Case stands disposed of.

Crl.M.C. No. 3790 of 2019

16. The prayer in the above Crl.M.C. is for quashment of the impugned interlocutory order passed by the trial court whereby the plea of the petitioner for interim custody of the seized mobile phone has been rejected. Since the main case in the impugned criminal proceedings has already been quashed by this Court in the abovesaid final order in Crl.M.C. No. 6922/2019, it is only to be held that the interlocutory matters also would not survive and therefore the the impugned Anx.A3 order herein would also require interdiction and the petitioner is entitled to succeed. Accordingly it is ordered that the impugned Anx.A3 order dated 13.5.2019 rendered by the JFCM, Mattanchery, on Crl.M.P. No. 1538/2019 in Crime No. 618/2019 of Fort Kochi Police Station, will stand quashed.

17. Further it is ordered that, the trial court shall be forthwith return back the custody of the mobile phone to the petitioner accused, if he makes an application in that regard along with a certified copy of this order.

18. With these observations and directions, the above Criminal Miscellaneous Case stands disposed of.