Kerala High Court
Shiju Kumar vs State Of Kerala on 7 March, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
2025:KER:20011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
CRL.MC NO. 3012 OF 2017
AGAINST CC NO.822 OF 2016 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II, THIRUVANANTHAPURAM
PETITIONER/ACCUSED:
SHIJU KUMAR
AGED 41 YEARS
S/O. G.MADHAVAN NADAR, KALPAKA,
KANJIRAMPARA PO.,THIRUVANANTHAPURAM
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.M.A.MOHAMMED SIRAJ
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGHCOURT OF KERALA, ERNAKULAM
PIN - 682031
2 SINDHU
W/O. PRAVEEN MATHEW, T.C. 11/1859
2025:KER:20011
CRL.M.C. NO.3012 OF 2017
2
THATTINAKAM, PAROTHUKONAM
PIN - 689326
BY ADVS.
M.P. PRASANTH, PUBLIC PROSECUTOR
SRI.M.ASHOK KINI
SMT.R.RANJANIE
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
07.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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CRL.M.C. NO.3012 OF 2017
3
ORDER
The petitioner is the sole accused in C. C. No.822/2016 pending on the files of the Judicial First Class Magistrate Court-II, Thiruvananthapuram (for short 'the trial court'). The offences alleged against the petitioner are under Sections 354C and 509 of the Indian Penal Code (for short 'IPC'), Section 119(b) of the Kerala Police Act (for short 'the KP Act') and Sections 66 and 66E of the Information Technology Act (for short 'the IT Act').
2. The petitioner is working as an Upper Division Clerk in the office of the Special Tahsildar (Land Acquisition) PWD southern circle. The prosecution allegation is that the petitioner turned on the camera of his mobile phone, placed the same on the top of the ladies toilet of his office and captured the images of the ladies using toilet and thereby committed the offences mentioned above.
3. This Crl.M.C. has been filed under Section 482 of Criminal Procedure Code (Cr.PC) to quash Annexure 1 final 2025:KER:20011 CRL.M.C. NO.3012 OF 2017 4 report on the ground that even if the allegations therein are believed in toto, none of the offences levelled against the petitioner will lie.
4. I have heard Sri. S. Sreekumar, the learned senior counsel for the petitioner and Sri. M. P. Prasanth, the learned Public Prosecutor.
5. The learned senior counsel for the petitioner at the outset submitted that the petitioner does not press for the time being his challenge against the offences under Section 354C of IPC and Section 119(b) of the KP Act. The learned counsel further submitted that there is absolutely nothing in the final report to attract the offences under Section 509 of IPC and Sections 66 and 66E of the IT Act. I find some force in the said argument.
6. Section 509 of IPC is attracted when a person 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 2025:KER:20011 CRL.M.C. NO.3012 OF 2017 5 such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman. Here there is no case for the prosecution that the petitioner uttered any word, made any sound or gesture or exhibited any object to any particular women. The prosecution also does not have any case that the petitioner intruded upon the privacy of a particular women. On the other hand, the case of the prosecution is that the petitioner turned on the camera of his mobile phone and placed the same on the top of the ladies toilet of his office. None of the lady staff in the office or any other women gave statement that the petitioner intruded upon their privacy. Hence, Section 509 of IPC is not attracted.
7. Section 66 of the IT Act deals with computer related offences. It says that if any person, dishonestly, or fraudulently, does any act referred to in Section 43 of the Act, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both. Section 43 of the IT 2025:KER:20011 CRL.M.C. NO.3012 OF 2017 6 Act deals with penalty and compensation for damages to computer, computer system etc. To attract Section 43 of the IT Act, any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network should have done any of the acts mentioned in the sub sections of Section 43. The prosecution has no case that any such acts have been done by the petitioner. Section 66E of the IT Act deals with punishment for violation of privacy. It is attracted when a person intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person. The prosecution has no case that the petitioner has captured, published or transmitted the images of a private area of any person. The images in the memory card produced before this Court also would not show that the private area of any person has been captured. Hence, the said Section also is not attracted.
2025:KER:20011 CRL.M.C. NO.3012 OF 2017 7 For the aforementioned reasons, the offences charged against the petitioner under Section 509 of IPC and Sections 66 and 66E of the IT Act are hereby quashed. The Criminal Miscellaneous case is allowed in part as above. All the contentions raised by the petitioner with respect to the offence under Section 354C of IPC and Section 119(b) of the KP Act are left open to be decided during the trial in accordance with law.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE BR 2025:KER:20011 CRL.M.C. NO.3012 OF 2017 8 APPENDIX OF CRL.MC 3012/2017 PETITIONER'S ANNEXURES ANNEXURE 1: CERTIFICED COPY OF FINAL REPORT IN C.C.NO.822/2016 ANNEXURE 2: TRUE COPY OF RELEVANT PAGES OF REPORT DATED 14.1.2016 SUBMITTED BY CW10 ASSISTANT DIRECTOR (DOCUMENT) RESPONDENTS' ANNEXURES: NIL