Kerala High Court
Aju Varghese vs The State Of Kerala on 27 September, 2018
Equivalent citations: AIRONLINE 2018 KER 837
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940
Crl.MC.No. 5247 of 2017
C.C.NO.1297/17 ON TEH FILES OF JUDICIAL MAGISTRATE OF FIRST CLASS,
KALAMASSERY
PETITIONER/ACCUSED:
AJU VARGHESE
AGED 32, S/O.VARGHESE P.K.,PUTHUPPARAMBIL HOUSE,
18/114,THIRUNILATHU ROAD, SOUTH KALAMASSERY.
BY ADV. SRI.C.P.UDAYABHANU
RESPONDENTS/COMPLAINANT:
1 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM.(ON BEHALF OF THE SI OF POLICE
(CRIME NO.1385/17)KALAMASSERY POLICE STATION,
ERNAKULAM)
2 GIREESH BABU S/O.GOPALAKRISHNAN
PUNNAKKADAN VEETTIL, PUNNAKKATTUMOOLA,THRIKKAKARA
NORTH VILLAGE, KALAMASSERY,ERNAKULAM 683 104.
3 VICTIM
BY ADVS.
SRI.P.S.EASWARAN
SRI.P.U.PRATHEESH KUMAR
OTHER PRESENT:
SRI.SURESH BABU THOMAS ADGP,
SRI.K.A ANAS PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.04.2018,
THE COURT ON 27.09.2018 PASSED THE FOLLOWING:
Crl.M.C.5247/17
2
'CR'
ORDER
This Crl.M.C is preferred by the sole accused in Crime No.1385 of 2017 of Kalamassery Police Station for offence punishable under section 228A of the Indian Penal Code.
2. The factual matrix leading to the present case lies in a very narrow compass. According to the petitioner herein, he is an artist in the Malayalam film industry. The third respondent is a well known cine actress in the same industry. According to the prosecution, in February 2017, while the third respondent was proceeding to Ernakulam in her car, she was sexually assaulted by a group of persons in the vehicle, which led to the registration of Crime No.297 of 2017 of the Nedumbassery Police Station for offences punishable under sections 342, 366, 376, 506(i), 120(b) r/w 34 of the Indian Penal Code and 66E and 67A of IT Act. Petitioner posted a comment in his facebook account, inter alia, deprecating the act towards the actress and commenting that, it was a heinous act. He had disclosed the name of the victim in the above post. According to the petitioner, immediately on getting information that disclosing the identity of the victim was against the law, he immediately tendered an apology and removed her name from the post. He also tendered an apology to the third respondent, it is claimed. In the meanwhile, the second respondent herein who allegedly had occasion to see the facebook post filed a complaint before the Crl.M.C.5247/17 3 Kalamassery Police Station alleging commission of offence punishable under section 228A of the IPC. It led to the registration of the present crime. After investigation, final report was laid and is now pending as C.C.No.1297 of 2017, before the Judicial First Class Magistrate Court, Kalamassery.
3. Petitioner has approached this Court contending that, he was not well versed with law and being an ordinary human being, who succumb to human frailties, and in his anxiety to support his associate, had inadvertently mentioned her name. He also claimed that he had immediately removed the name from the facebook and also apologized to the victim, who gracefully accepted it. She has sworn an affidavit produced as Annexure-A4, affirming that the petitioner herein is her associate, had been a good friend of her over a long period of time and without any malafide intention, he had published her name in the official facebook. She has stated that, she has no objection in quashing the criminal proceedings in Crime No.1385 of 2017 of Kalamassery Police Station resulting in final report and the proceedings in C.C.No.1297 of 2017.
4. Notice was issued to the second respondent/defacto complainant, who did not appear to contest the proceedings. Heard learned Additional Director General of Prosecution appearing for the State, learned counsel for the petitioner and the learned counsel for the third respondent in extenso.
5. The crux of the contention of the learned counsel for the petitioner is that, reference of the name of victim was unintentional. It was also contended that, though section 228A IPC provides an absolute bar on Crl.M.C.5247/17 4 the disclosure of name or the identity of the victim, subsection (2)(b) of section 228A IPC exempts, if it is published or printed by, or with the authorization in writing of the victim. It was also pointed out that the offence by its nature is bailable, cognizable and non compoundable. It was contended that facebook post was virtually intended to show allegiance to the unfortunate victim and was intended to support her. Hence, no malice could be attributed to him and his stand that the name was inadvertently disclosed stood substantiated, it was argued. It was also pointed out that, since the third respondent has acknowledged this, it should be deemed as an expost facto authorization in writing, satisfying substantially, the ingredient of section 2(b) of 228A of the IPC and hence, criminal proceeding is liable to be quashed. It was further contended that the petitioner did not maintain any animosity towards the victim. It was further argued that, though offences under sections 376, 378A, 376B, 376C and 376D were incorporated in the FIR, at the time of facebook publication, the investigation was at a nascent stage and hence, it could not be stated that these offences were alleged or found to have been committed at that time.
6. The crucial question that arises is whether, in the light of the above facts and the affidavit submitted by the defacto complainant, the criminal proceeding is liable to be quashed on consent. It has also to be considered whether the issue involves any matter of predominant public importance, overriding the personal interest of victim.
7. Vehemently opposing the application, learned ADGP invited the Crl.M.C.5247/17 5 attention to a catena of decisions of the Supreme Court, wherein, the necessity for strict adherence to the principle of non-disclosure of identity of victim as embodied in section 228A IPC was reiterated. In Bhupinder Sharma v. State of M.P(2003)8 SCC 551), the Supreme Court had held that, section 228A makes disclosure of the identity of victims of certain offences punishable. Printing or publishing the name or any matter which may make known the identity of any person against whom an offence under section 376, 376A to D is alleged or found to have been committed, can be punished. It was held that restriction does not relate to printing or publication of judgment by the High Court or the Supreme Court. In State of Karnataka v. Puttaraja (2004 KHC 213), the Supreme Court reiterated that the restriction under section 228A IPC was intended to ensure that the disclosure of identity of the victim involved in certain types of offences is punishable. It was held that, keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which section 228A IPC has been enacted, it would be appropriate that, the Courts, in its judgments should not indicate the name of the victim. This view was reiterated in State of Punjab v. Ramdev Singh (2004 KHC 373), State of M.P. v. Shree Kant Sekhari (2004)8 SCC 153, Om Prakash v. State of U.P (2006)9 SCC 787, Dinesh v. State of Rajasthan (2006)3 SCC 771 and in S.Ramakrishna v. State rep. by the Public Prosecutor, High Court of A.P, Hyderabad (2009 KHC 4043 SC). The Chhattisgarh High Court in Gansu Fatturam v. Crl.M.C.5247/17 6 State of Chhattisgarh 2017 KHC 2590) has specifically dealt with section 228A IPC. It was noted that, presiding officers in that State were not following the provisions of section 228A IPC, as well as the directives issued by the Supreme Court that the victim of a sexual abuse case should not be named or identified in the judgment. It was directed that, judicial officers who commit breach of above should be visited with disciplinary proceedings. In Satyapal Anand v. State of Madhya Pradesh (2018)4 SCC 800 , Supreme Court ordered notice to be issued to a police officer who had disclosed the name of sexual offence victim in an affidavit filed in the Supreme Court to show cause why crime shall not be registered under section 228A IPC.
8. The statutory provision as explained by the Supreme Court clearly shows that the provision was specifically intended to ensure that the victim is not exposed to further agony by the consequent social victimization or ostracism pursuant to disclosure of her identity. It is clear that, it is intended to protect her from psychological and sociological torture or mental agony, that may follow the unfortunate incident of sexual violence. Society has a duty to support the victims of sexual violence and to ensure that they come back to normalcy and start leading a normal life. Victims of such violence are not denuded of their fundamental right to privacy and are liable to be insulated against unnecessary public comments. Definitely, it serves an avowed social purpose and has an element of public interest involved in it. Section is so clear, unambiguous and the consequence of Crl.M.C.5247/17 7 breach of it is inescapable and the question whether the disclosure was intended, bonafide or without knowledge of law has not relevance. Hence, the provision of section 228A IPC prohibiting the disclosure of the name by an accused is absolute and cannot be diluted.
9. This being the statutory rigour, it has to be found out whether quashing of a prosecution under section 228A IPC is desirable on a settlement between parties and whether it has a predominantly overriding public importance.
10. Learned counsel for the petitioner, however, pointed out that, the section itself clearly shows that the rigor of section 228A IPC is diluted to a certain extent by sub section (2) by which, in cases provided therein, printing and publication of the facts leading to disclosure of identity of the victim is not barred. Under section 228A(2)(b) IPC, an option is given to the victim to forgo the protection. The victim may have her own reasons also. It may be that the victim, though had to face ignominy following the sexual assault might have mustered the courage to stand up against the atrocity committed on her and notwithstanding it, may dare to disclose her identity or she may feel that, in a particular case, the disclosure was not without any malice. In other words, there may be exceptional cases, wherein the victim or next of the kin may feel that, disclosure of the name may not lead to sociological ostracization or have any adverse impact on the victim. Freedom is given to such victim to forgo that protection. However, the section is clear that, it has to be preceded by a consent in writing. In the Crl.M.C.5247/17 8 case at hand, it has not happened. It is not a case of consent given, and hence, subsection 2(b) of section 228 IPC cannot apply in this case. However, it gives an indication that, if the victim herself has no objection in quashing the proceedings and does not apprehend a social persecution by disclosure of her name in a given case, she can waive the benefit of statutory protection. Law should not insist for proceeding under the cover of predominant social interest to ensure that section 228A IPC is paramount, notwithstanding the fact that the victim has condoned the conduct of a person who had disclosed her identity. However, such a situation may not be available under the Protection of Children from Sexual Offences Act. Under section 23 of the Protection of Children from Sexual Offences Act, there is an absolute bar against disclosure of name of victim child, in any media. The only exception is a disclosure pursuant to the order in writing of special court, in the interest of the child.
11. Having considered this, I feel that, no purpose will be served by prosecuting the petitioner herein and the undertaking given by the victim can be accepted for quashing the criminal proceedings. Accordingly, it is held that, though the rigour under section 228A IPC is strict and based on the predominant social reasons and it has to apply with all its rigour in all cases, but, wherein, the victim has condoned an act of disclosure of identity, I feel that, section 482 Cr.P.C can be invoked appropriately.
Accordingly, Crl.M.C is allowed and all further proceedings in C.C.No.1297 of 2017 before the Judicial First Class Magistrate Court, Crl.M.C.5247/17 9 Kalamassery arising from Crime No.1385 of 2017 of Kalamassery Police Station will stand quashed.
Registry shall not disclose the name of the third respondent in the cause title and shall refer as 'the victim'.
Sd/-
SUNIL THOMAS JUDGE Sbna/ Crl.M.C.5247/17 10 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO.
1385/2017 ON THE FILES OF THE
KALAMASSERY POLICE STATION DATED
3.7.2017.
ANNEXURE A2 TRUE COPY OF MAHAZAR (OF THE FACEBOOK
PRINT OUT) PREPARED BY THE INSPECTOR OF
POLICE, KALAMASSERY IN CRIME
NO.1385/2017 DATED 6.7.2017
ANNEXURE A3 TRUE COPY OF THE MAHAZAR (OF THE
FACEBOOK PRINT OUT) PREPARED BY THE
INSPECTOR OF POLICE, KALAMASSERY IN
CRIME NO.1385/2017 DATED 6.7.2017.
ANNEXURE A4 AFFIDAVIT OF THE 3RD RESPONDENT
SUBMITTED TO BE FILED BEFORE THIS
HON'BLE COURT.
ANNEXURE A5 CERTIFIED COPY OF HTE FINAL REPORT IN
C.C.NO.1297/17