IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 21ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946
CRL.MC NO. 7337 OF 2019
AGAINST THE ORDER IN CRL.RP NO.39 OF 2018 OF II ADDITIONAL DISTRICT
COURT-II, ERNAKULAM ARISING OUT OF THE ORDER IN CC NO.1983 OF 2016 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT, KALAMASSERY
PETITIONER/ACCUSED:
ANU VISWAN
AGED 34 YEARS
S/O. N.B VISWAN, SREERAGAM, AKG BYE LANE PUTHUPPILLY KARA,
NEAR EDAPPALLY TOLL JN, THRIKKAKARA NORTH VILLAGE,
ERNAKULAM DISTRICT 682 024
BY ADVS.
V.JOHN SEBASTIAN RALPH
SRI.V.JOHN THOMAS
SHRI. RALPH RETI JOHN
SHRI.VISHNU CHANDRAN
KUM. KEERTHANA SUDEV
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, COCHIN 682 031
2 DEEPTHI BIJU,
AGED 37 YEARS
W/O. BIJU, KMRA-III, INDRANEELAM, VADKODU P.O,
KANGARAPADY, PIN 682 021
BY ADV SRI.PRAMOD KOCHUTHOMMEN.E.
PP - M P PRASANTH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.06.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
1
2
ORDER
Dated this the 21st day of June, 2024
This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to set aside Annexure-4 order and discharge the petitioner in C.C. No.1983 of 2016 on the files of the Judicial First Class Magistrate Court, Kalamassery.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the available documents.
3. In this matter, the prosecution case is that, on a day before 28.11.2014 the accused herein published the mobile number of the defacto complainant in the Facebook and various sites in the internet. It is further alleged that the accused forged a fake profile in her name and uploaded obscene messages and posts in internet. Thereby, the prosecution alleges commission offence punishable under Section 509 of IPC as well as under Section 66A(a) and (b) of the Information Technology Act, 2000 (hereinafter referred as the 'IT Act' for short).
3
4. Thereafter, the trial court took cognizance for the offence punishable under Section 509 of IPC, since as per the decision of the Apex Court reported in Shreya Singal
v. Union of India [2015 (5) SCC 1], Section 66A of the IT Act was declared as unconstitutional. Later, the petitioner filed discharge petition as C.M.P. No.2379/2017(A) before the trial court and the learned Magistrate, after considering the plea of discharge found that the allegations as against the accused would definitely attract the offence alleged and thereby dismissed the petition as per Annexure-3 order dated 02.06.2018.
5. Thereafter, the petitioner filed revision petition challenging Annexure-3 order of the trial court vide Crl.R.P. No.39/2018. But, the learned Sessions Judge also confirmed the order of the trial court and dismissed the revision petition as Annsexure-4 order dated 22.07.2019 by a detailed order holding that the 1stlimb of Section 509 of IPC would attract in the present case, negating the contention raised by the petitioner that in order to attract offence under Section 509 of IPC, the offence should be done in the presence of the women.
4
6. It is argued by the learned counsel for the petitioner that the ingredients to attract the above said offence are not made out from the prosecution materials. Therefore, Annexure-4 order requires interference by this Court.
7. The learned Public Prosecutor opposed the said contention and submitted that there are materials in abundance to see commission of the above said offence by the accused, prima facie.
8. In this case, though offence punishable under Section 66A of the IT act also was alleged, relying on dictum laid down in Shreya Singal's case (supra), the accused was discharged for the said offence. The discharge sought for by the petitioner in so far as offence punishable under Section 509 of IPC was disallowed by the trial court as well as the Appellate Court holding that there are prima facie materials to find commission of the said offence by the accused, so as to go for trial.
9. On perusal of the private complaint filed by the defacto complainant, it appears that there are sufficient materials to see commission of the above said offence by
5
the accused, prima facie, to go for trial and the petitioner cannot be discharged from the said offence as rightly found by the trial court as well as the Appellate Court. Therefore, Annexure.4 order does not require any interference by this Court. Accordingly, this petition stands dismissed with direction to the trial court to try the case and dispose of the same, at the earliest.
Sd/-
A. BADHARUDEEN
JUDGE
SK
6
APPENDIX OF CRL.MC 7337/2019
PETITIONER ANNEXURES :
ANNEXURE 1 COPY OF THE PRIVATE COMPLAINT
ANNEXURE 2 COPY OF THE ORDER OF DISCHARGE IN CC
578/2015 OF JFCMC KALAMASSERRY
ANNEXURE 3 COPY OF ORDER DATED 02-06-2018 IN CMP NO. 2379/2017 (A) IN CC NO 1983/2016 ON
THE FILE OF JFCM COURT KALAMASSERY
ANNEXURE 4 TRUE COPY OF ORDER IN CRL RP 39 OF 2018
OF HON'BLE ADDITIONAL SESSIONS COURT II ERNAKULAM DATED 22-07-2017
ANNEXURE 5 ORDER DATED 04-10-2019 IN SLP NO. 9162/2019
RESPONDENTS' ANNEXURES : NIL
Comments