Kerala High Court
Rajesh Panangad vs State Of Kerala on 16 November, 2018
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940
Crl.MC.No. 2595 of 2018
AGAINST THE ORDER/JUDGMENT IN CC 2443/2015 of J.M.F.C.,ALATHUR
CRIME NO. 695/2015 OF Alathur Police Station , Palakkad
PETITIONER/ACCUSED:
RAJESH PANANGAD,
SON OF M. JAYARAJAN, AGED 46 YEARS, RAJALAKSHMI, WEST
FORT ROAD, PALAKKAD-678001.
BY ADVS.
SRI.JACOB SEBASTIAN
SMT.ANU JACOB
SRI.K.V.WINSTON
RESPONDENT/STATE & COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031, REP. BY THE SUB INSPECTOR OF POLICE, ALATHUR POLICE STATION IN CRIME NO.695/2015.
2 SRIVIJI P, WIFE OF ACHUDANADAN, SREENILAYAM, MANJALOOR,ALATHUR, PALAKKAD-678702.
BY ADV. SRI.I.V.PRAMOD OTHER PRESENT:
PP. SRI. T.R. RENJITH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.10.2018, THE COURT ON 16/11/2018 PASSED THE FOLLOWING:Crl.M.C.No.2595/2018 2
O R D E R The petitioner herein is the accused in Crime No.695/2015 of Alathur Police station for offences punishable under sections 117(d) and 119(b) of the Kerala Police Act, 2011.
2. The allegation of the second respondent, the defacto complainant, was that, on 10/6/2015 while she was performing her duties as a teacher in her school, the petitioner herein who is the son of the manager of the school, took her photograph without her permission, using his mobile phone. He showed it to other teachers also. Alleging that it amounted offences under the Kerala Police Act, FIS was laid, crime was registered and after investigation, final report was laid.
Matter is pending as CC No.2443/2015 of the Judicial First Class Magistrate, Alathur.
3. The accused has approached this court, with a prayer to quash the proceedings on a premise that, even on the admitted facts, no offence will lie against the petitioner herein and his prosecution is bad in law. Notice was issued to the second respondent, who has chosen to remain absent.
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Examined the records.
5. According to the learned counsel for the petitioner, he is the Crl.M.C.No.2595/2018 3 son of the manager of a school wherein the second respondent was working as a teacher. Since the manager was ill, the petitioner was looking after the affairs of the school and has been appointed as a correspondent of the school in terms of KER. Disciplinary proceedings initiated by the manager were pending against the second respondent. According to the petitioner, the second respondent was reading a story book inside the class, which was proposed to be exposed. During the course of investigation, the police recovered a mobile phone allegedly used for committing crime. It was revealed that, the mobile phone seized did not contain the objectionable photographs. Hence, investigation officer presumed that he had photographed with another mobile. Alleging that he had misled the investigation and thereby committed offence punishable under section117 (d) of the Kerala Police Act, that charge was also added. He has not transgressed into the reasonable privacy of the second respondent. The materials gathered to establish the alleged taking of photograph were only hearsay evidence and absolutely no legally admissible material was placed before the court to hold the petitioner guilty of offences alleged. Hence, he contended that trial can only be a futile exercise and sought to quash the proceedings.
6. To establish the allegation that the petitioner had taken the photograph of the second respondent, the prosecution has relied on one witness, who was a teacher of the school where the second Crl.M.C.No.2595/2018 4 respondent was working, who allegedly saw the petitioner walking through the veranda and taking the photograph of the second respondent, who was inside the class room. However, she could not identify the mobile which was used. She also did not enquire from the petitioner as to what he was doing. On the other hand, two other teachers have also seen the photographs on the mobile when it was shown by the petitioner herein. According to the Headmistress, the petitioner herein approached her on that day and explained that the teachers were not properly taking the classes. She was asked to take appropriate action.
7. Evidently, the prosecution has no allegation that the petitioner has propagated the photograph. Then the only question that remains is whether the petitioner has taken photograph. Admittedly, the photographs which were taken are not brought on record. The mobile used also has not been seized. Hence, the only material is the version of one teacher who saw the petitioner taking the photograph and that of two other teachers who said that they have seen the photograph of the teacher on the mobile. With these materials on record, the question that remains is whether, even if the version is absolutely believed, whether it is sufficient to constitute an offence under section 119(b) of the KP Act.
8. Section 119(b) of the Act provides that, any person who takes photographs or records, videos or propagates them at any place in a Crl.M.C.No.2595/2018 5 manner affecting the reasonable privacy of women, is liable for conviction. The question is whether the teacher while taking class is entitled to claim the right to privacy. It is clear that, the 2 nd respondent has no case that her privacy as a woman was transgressed. According to the second respondent, the act of taking the photograph was an invasion into her privacy as a person. Defacto complainant has no case that photographs were such as to outrage her modesty. Even the teacher who allegedly saw the photograph, did not mention that the photograph transgressed into the womanhood or modesty of the complainant.
9. The question then narrows down is whether, while teaching in the class, she is entitled for protection of reasonable privacy . Any person, even moving on a road, public place, moving among the crowd or travelling in a public transport, is entitled to his/her right to privacy. Even in the public place and among the public one can reasonably maintain his privacy and no other person is entitled to transgress into it. However, when a person comes out of that privacy and commits any act or behaves openly with the knowledge that his conduct is likely to be seen by others or intended to be seen by others, it can no longer be considered as an act done in privacy. Having considered this, taking of the photograph of a teacher while conducting the class cannot be said to be one affecting the right to reasonable privacy of the teacher, unless it involves violation of her womanhood or modesty. It seems to be the Crl.M.C.No.2595/2018 6 conduct of the teacher, which should be the subject matter, distinct from the act done by a person affecting reasonable privacy of women. To that extent, taking the photograph of teacher while inside the class cannot be said to be one affecting the reasonable privacy of the teacher. Probably,it may amount to an act affecting the discipline of the school and may even be a misconduct. However, it will not fell into the offence under section 119 (b) of KP Act.
10. Regarding the ingredients of section 117(d) of KP Act, what the statute penalizes is deliberately making of a false statement to the police officer with intent to mislead the police in material particulars in a police investigation or due performance of police duty. According to the petitioner herein, it is the duty of the investigating agency to recover the mobile allegedly used by the petitioner herein. The petitioner has supplied the mobile phone which was in his possession. That by itself does not indicate that, he has deliberately made any false statement and hence, ingredients under section 117(d) are conspicuously absent. It was also contended that, he cannot be mulcted with criminal liability.
11. There is a substantial ground in the contention of the learned counsel for the petitioner that, if the mobile phone that was entrusted did not contain the objectionable materials, there are two possibilities; one is that the allegation against him is not correct and the second possibility is that, he had handed over another mobile phone instead Crl.M.C.No.2595/2018 7 of one which was allegedly used. It is for the prosecution to establish it by cogent evidence. Criminal liability cannot be fastened on the petitioner on that ground alone.
12. Having considered the above, I am inclined to hold that no purpose will be served by prosecuting the petitioner herein. Accordingly, Crl.M.C.is liable to be allowed.
Crl.M.C.is allowed. All further proceedings pursuant to proceedings in CC No.2443/2015 of the Judicial First Class Magistrate, Alathur stand quashed.
Sd/-
SUNIL THOMAS
dpk JUDGE
Crl.M.C.No.2595/2018 8
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 A TRUE COPY OF THE FINAL REPORT IN C.C
NO.2443/2015 OF THE COURT OF THE
JUDICIAL MAGISTRATE OF THE 1ST CLASS,
ALATHUR.