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Abhijeet.J.K vs State Of Kerala on 20 February, 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941

Crl.MC.No.5130 OF 2019(A)

CC 1768/2018 OF ADDITIONAL CHIEF JUDCIAL MAGISTRATE, TRIVANDRUM

CRIME NO.940/2018 OF Petta Police Station, Thiruvananthapuram

PETITIONER/ACCUSED:

ABHIJEET.J.K
AGED 23 YEARS
S/O. JAYAN, TC 76/481(2), KALATHUVILAKATHU HOUSE,
ANAYARA PUMP HOUSE, KILLIKUNNATHU LANE,
KADAKAMPILLY VILLAGE, THIRUVANANTHAPURAM 695 029

BY ADVS.
SRI.AJIT G.ANJARLEKAR
SRI.G.P.SHINOD
SRI.RAM MOHAN.G.
SRI.GOVIND PADMANAABHAN

RESPONDENTS/STATE AND DE FACTO COMPLAINANT:

1 STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR AT THE HIGH
COURT OF KERALA, ERNAKULAM.

2 THE STATION HOUSE OFFICER,
PETTAH POLICE STATION, THIRUVANANTHAPURAM CITY,
PETTAH POST, THIRUVANANTHAPURAM 695 024

3 PREETHI KAMALA,
AGED 39 YEARS
D/O. KAMALA DEVI, TC 29/123, KAMALA NIVAS, KAVARADI
ROAD, PETTAH POST, THIRUVANANTHAPURAM 695 024

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
14.02.2020, THE COURT ON 20.02.2020 PASSED THE FOLLOWING:
Crl.M.C.No.5130/2019
2

“CR”

R.NARAYANA PISHARADI, J
************************
Crl.M.C.No.5130 of 2019
———————————————-
Dated this the 20th day of February, 2020

ORDER

The petitioner is the sole accused in the case

C.C.No.1768/2018 on the file of the Court of the Additional Chief

Judicial Magistrate, Thiruvananthapuram.

2. The prosecution case is as follows: On 12.07.2018, at

about 21.30 hours, the de facto complainant, a lady aged 39

years, was proceeding to her house by walking through a public

road. The accused followed her on a motorcycle. He approached

her and invited her to accompany him on the motorcycle. He

also made sexual gesture to her with his hand.

3. The case against the petitioner was registered on the

basis of a written complaint made by the victim to the Sub

Inspector of the local police station. After completing

investigation, final report has been filed against the petitioner for
Crl.M.C.No.5130/2019
3

an offence punishable under Section 509 I.P.C.

4. This petition is filed under Section 482 Cr.P.C for

quashing Annexure-A first information report registered against

the petitioner and also Annexure-B final report filed against him.

5. Heard learned counsel for the petitioner and also the

learned Public Prosecutor.

6. Learned counsel for the petitioner has raised three

grounds in support of the prayer for quashing the first

information report as well as the final report against the

petitioner. They are: (1) The allegations made against the

petitioner in the first information report do not attract the offence

punishable under Section 509 I.P.C. (2) The allegations raised

against the petitioner in the final report do not disclose

commission of an offence punishable under Section 509 I.P.C by

him. (3) At any rate, the acts allegedly committed by the

petitioner are trivial in nature and they come within the purview

of Section 95 I.P.C.

7. Per contra, learned Public Prosecutor has submitted

that the prosecution has produced sufficient materials to prove
Crl.M.C.No.5130/2019
4

the allegations raised against the petitioner and that the final

report filed against him discloses commission of an offence

punishable under Section 509 I.P.C.

8. Section 509 of the Indian Penal Code provides that,

whoever, intending to insult the modesty of any woman, utters

any word, makes any sound or gesture, or exhibits any object,

intending that such word or sound shall be heard, or that such

gesture or object shall be seen, by such woman, or intrudes upon

the privacy of such woman, shall be punished with simple

imprisonment for a term which may extend to three years, and

also with fine.

9. Utterance of any word or making of any sound or gesture

by a person, intending to insult the modesty of a woman, attracts

the offence punishable under Section 509 I.P.C, if such act was

made intending that such word or sound shall be heard, or that

such gesture shall be seen by such woman.

10. There is distinction between an act of merely insulting a

woman and an act of insulting the modesty of a woman. In order

to attract Section 509 I.P.C, merely insulting a woman is not
Crl.M.C.No.5130/2019
5

sufficient. Insult to the modesty of a woman is an essential

ingredient of an offence punishable under Section 509 I.P.C. The

crux of the offence is the intention to insult the modesty of a

woman.

11. Section 509 I.P.C criminalises a ‘word, gesture or act

intended to insult the modesty of a woman’ and in order to

establish this offence it is necessary to show that the modesty of

a particular woman or a readily identifiable group of women has

been insulted by a spoken word, gesture or physical act (See

Khushboo v. Kanniammal : AIR 2010 SC 3196).

12. The essence of a woman’s modesty is her sex. The

modesty of an adult female is writ large on her body. Young or

old, intelligent or imbecile, awake or sleeping, the woman

possesses modesty (See State of Punjab v. Major Singh : AIR

1967 SC 63). Modesty is a virtue which attaches to a female

owing to her sex (See Raju Pandurang Mahale v. State of

Maharashtra : AIR 2004 SC 1677).

13. If the word uttered or the gesture made could be

perceived as one which is capable of shocking the sense of
Crl.M.C.No.5130/2019
6

decency of a woman, then it can be found that it is an act of

insult to the modesty of the woman (See Rupan Deol Bajaj v.

K. P. S. Gill : AIR 1996 SC 309).

14. In the instant case, the victim lady aged 39 years, was

walking along a public road. It was night, at about 21.30 hours.

The petitioner followed her on a motorcycle. He approached her

and invited her to accompany him. The petitioner and the victim

lady were not previously acquainted with each other. They were

total strangers. Therefore, it cannot be found that the intention

of the petitioner was to give the victim lady a lift or a free ride on

the motorcycle, on account of friendship or relationship with her.

There is also an allegation against him that he made sexual

gesture to the victim lady with the middle finger of his hand. If

the acts allegedly committed by the petitioner are considered in

the light of the facts and circumstances of the case, prima facie,

it can be found that his intention was to insult the modesty of the

victim lady. The acts allegedly committed by the petitioner

amount to an affront to her feminine decency. Such acts could

be perceived as capable of shocking the sense of decency of the
Crl.M.C.No.5130/2019
7

victim lady. The invitation made by the petitioner to the lady

contained an insinuation that she was a woman of easy virtue

who was ready and willing to go with any man during night.

15. Learned counsel for the petitioner would contend that

there is no material produced by the prosecution to infer that the

petitioner intended to insult the modesty of the victim lady.

Intention has to be gathered from the act complained of and the

circumstances under which it is committed. Intention, being a

state of mind, could not be proved by direct evidence. It has to

be inferred from the facts and circumstances of a given case.

16. In Rupan Deol Bajaj (supra), the allegation against

the accused was that he asked a lady colleague “You get up. You

come along with me.” It was held that, prima facie, in the light of

the attending circumstances, it amounted to an act of insulting

the modesty of the victim lady.

17. Learned counsel for the petitioner would contend that,

even if the petitioner has committed any act as alleged by the

prosecution, it is trivial in nature, which would come within the

purview of Section 95 I.P.C. Learned counsel would rely upon the
Crl.M.C.No.5130/2019
8

decision of the Apex Court in Veeda Menezez v. Yusuf Khan :

AIR 1966 SC 1773 in support of his contention.

18. Section 95 of the Indian Penal Code states that,

nothing is an offence by reason that it causes, or that it is

intended to cause, or that it is known to be likely to cause, any

harm, if that harm is so slight that no person of ordinary sense

and temper would complain of such harm.

19. In Veeda Menezes (supra), the Supreme Court has

held as follows:

“The object of framing Section 95 was to exclude
from the operation of the Penal Code those cases
which from the imperfection of language may fall
within the letter of the law, but are not within its
spirit and are considered, and for the most part
dealt with by the Courts, as innocent. …. Whether
an act which amounts to an offence is trivial would
undoubtedly depend upon the nature of the injury,
the position of the parties, the knowledge or
intention with which the offending act is done, and
other related circumstances. There can be no
absolute standard or degree of harm which may be
regarded as so slight that a person of ordinary
sense and temper would not complain of the harm.

Crl.M.C.No.5130/2019
9

It cannot be judged solely by the measure of
physical or other injury the act causes. A soldier
assaulting his colonel, a policeman assaulting his
Superintendent, or a pupil beating his teacher,
commit offences, the heniousness of which cannot
be determined merely by the actual injury suffered
by the officer or the teacher, for the assault would
be wholly subversive of discipline. An assault by
one child on another, or even by a grown up
person on another, which causes injury may still
be regarded as so slight, having regard to the way
and station of life of the parties, relation between
them, situation in which the parties are placed,
and other circumstances in which harm is caused,
that the victim ordinarily may not complain of the
harm”.

20. In Narayanan v. State of Kerala : 1986 KLT 1265, it

has been held as follows:

“When considering the question whether the acts
alleged against the petitioners would amount to an
offence of wrongful restraint, the maxim “de
minimis non curat lex” (the law does not take
account of trifles) should be borne in mind if the
harm caused or intended to be caused is so slight
that no person of ordinary sense and temper
would complain of such harm. The above principle
Crl.M.C.No.5130/2019
10

is embodied in Section 95 of the Code. The
definitions of various offences in the Code are so
framed as to bring a number of activities within
the letter of the penal law. If we are to go by the
definitions alone, “it is theft to dip a pen in another
man’s ink, it is mischief to crumble one of his
wafers, it is assault to cover him with a cloud of
dust by riding past him, it is hurt to incommode by
pressing against him in getting into a carriage”. At
the same time, those are but few of the
innumerable acts without the performance of
which men cannot live together in society, and
acts which it is desirable that they should do. It
depends upon the degree of the acts and that is
why the authors of the Code took particular care in
striking a note of caution by incorporating Section
95 in the Code”.

21. If the act allegedly committed by the petitioner is

considered in the light of the principles laid down by the Apex

Court in Veeda Menezes (supra), it cannot be found that it is an

act of trivial nature which would come within the purview of

Section 95 I.P.C. Whether an act which amounts to an offence is

trivial in nature would undoubtedly depend upon the nature of

the harm caused, the position of the parties, the knowledge or
Crl.M.C.No.5130/2019
11

intention with which the offending act is done and other related

circumstances. Here, the petitioner had allegedly invited the

victim lady, a stranger to him, to accompany him on the

motorcycle during night time. Such an act cannot be considered

as trivial in nature. The question whether an act is trivial in

nature or not does not depend merely upon the fact whether any

physical harm was caused or not. An act of affront to the

decency and dignity of a woman cannot be considered as trivial

in nature.

22. Section 354 I.P.C prescribes the punishment for

outraging the modesty of a woman by an act of assault or use of

criminal force. Inspite of the existence of the aforesaid provision

in the Indian Penal Code, the legislature has incorporated Section

509 in it, making punishable even a verbal attack of insulting the

modesty of a woman. The intention of the legislature is evident.

Commission of acts, which may not necessarily involve even any

physical advances or assault, is also made punishable under

Section 509 I.P.C. Originally, the punishment prescribed for the

offence under Section 509 I.P.C was simple imprisonment for a
Crl.M.C.No.5130/2019
12

term which may extend to one year or fine or both. The

punishment provided for the offence now stands enhanced to simple

imprisonment for a term which may extend to three years with fine.

The intention of the legislature is also evident from the enhancement

of the punishment prescribed for the offence.

23. The observations made by the Supreme Court in Deputy

Inspector General v. Samuthiram: AIR 2013 SC 14 are relevant

here. The Apex Court had occasion to observe as follows:

“We notice that there is no uniform law in this
country to curb eve- teasing effectively in or within
the precinct of educational institutions, places of
worship, bus stands, metro-stations, railway
stations, cinema theatres, parks, beaches, places
of festival, public service vehicles or any other
similar place. Eve-teasing generally occurs in
public places which, with a little effort, can be
effectively curbed. Consequences of not curbing
such a menace, needless to say, at times
disastrous. There are many instances where girls
of young age are being harassed, which sometimes
may lead to serious psychological problems and
even committing suicide. Every citizen in this
country has right to live with dignity and honour
which is a fundamental right guaranteed under
Article 21 of the Constitution of India. Sexual
Crl.M.C.No.5130/2019
13

harassment like eve-teasing of women amounts to
violation of rights guaranteed under Article 14,
Article 15 as well. We notice in the absence of
effective legislation to contain eve-teasing,
normally, complaints are registered under Section
294 or Section 509 IPC. …… Eve teasing today
has become pernicious, horrid and disgusting
practice. ….. More and more girl students, women
etc. go to educational institutions, work places etc.
and their protection is of extreme importance to a
civilized and cultured society”.

24. In the aforesaid circumstances, the prayer for quashing the

first information report and the final report against the petitioner

cannot be allowed on any of the grounds urged by the learned counsel

for the petitioner.

25. Consequently, the petition is dismissed. It is made clear

that, appreciation of the evidence that may be adduced during the trial

of the case, shall be done by the trial court untrammelled by any of

the observations made in this order.

(sd/-)

R.NARAYANA PISHARADI, JUDGE
jsr
Crl.M.C.No.5130/2019
14

APPENDIX
PETITIONER’S EXHIBITS:

ANNEXUREA A CERTIFIED COPY OF THE FIR IN CRIME
NO. 940 OF 2018 OF PETTAH POLICE
STATION, THIRUVANANTHAPURAM CITY

ANNEXURE B A CERTIFIED COPY OF THE CHARGE SHEET IN
CRIME NO. 940 OF 2018 OF PETTAH POLICE
STATION, THIRUVANANTHAPURAM CITY.

RESPONDENTS’ EXHIBITS : NIL

TRUE COPY
PS TO JUDGE

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