Important points:
The offenses contained in Chapter XXI of the IPC which is also inclusive of the offences as per Sects. 500 & 501 of the IPC can be taken cognizance only on the basis of compliant in writing of the aggrieved person. The other possible offences would have been the one as per Sec.118(d) of the Kerala Police Act, 2011

ORDER :

The prayer in the aforecaptioned Criminal Miscellaneous Case filed on 16.12.2015, under Section 482 of the Code of Criminal Procedure (Cr.P.C.), is as follows:-

"..............quash Annexure A2 final report and all further proceedings pursuant thereto in C.C. No.1186/2014 on the file of the Judicial First Class Magistrate Court, Pala, in the interest of justice.”

2. The petitioners herein have been arrayed as accused 1 & 2 among the two accused in the instant impugned Annexure-A1 First Information Report in Crime No.577/2014 of Pala police station, which has been registered for offences punishable under Sec.118(d) of the Kerala Police Act, 2011 and Sec.501 B of the Indian Penal Code (IPC) on the basis of the First Information Statement (FIS) given by the 2nd respondent on 5-4-2014 in respect of the alleged incident which happened for the period form 01.07.2007 to 05.04.2014. It appears that the offence shown as per Sec.501 B of the IPC in Annexure-A1 FIR may be a typographical mistake inasmuch as there is no such offence in the statute book and presumably what is meant to be conveyed is the offence as per Sec.501 of the IPC, which deals with printing or engraving matter known to be defamatory. The Police, after investigation, has filed the impugned Annexure-A2 Final Report/Charge Sheet in the said crime No.577/2014 of Pala Police Station, whereby the offence as per Sec.501 of the IPC has been deleted and the offence as per Sec.509 of the IPC has been duly added and the original offence as per Sec.118(d) of Kerala Police Act, 2011 has been retained, in which the petitioners herein have been arrayed as two accused persons therein. The learned Magistrate has taken cognizance and the case is now pending as C.C. No.1186/2014 on the file of the Judicial First Class Magistrate Court, Pala. Thereafter, it appears that the trial court has framed the charges at AnnexureA2 on 18.11.2014, which is under challenge in this case.

3. The brief of the prosecution case is that the petitioners herein (accused persons) have sent defamatory and vulgar letters that for the period from July, 2007 up to 05.04.2014, the petitioners herein have sent defamatory and vulgar letter to the charge witnesses 1 to 3 about the wife of the 2nd respondent-de-facto complainant (CW2) and that thereby the petitioners have committed the offence as per Sec.118(d) of the Kerala Police Act, 2011 and Sec.509 of the IPC.

4. Sec.118(d) of the Kerala Police Act, 2011 reads as follows:-

118. Penalty for causing grave violation of public order or danger.— Any person who,—

(a) xxxxxx

(b) xxxxxx

or

(c) xxxxxxor

(d) causes annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or mails by any means; or”

5. It is beyond any dispute that the provision contained in Sec.118(d) of the Kerala Police Act, 2011, along with Sec.66A of the Information Technology Act, 2000, has already been struck down by the Apex Court in its celebrated decision in Shreya Singhal v. Union of India [(2015) 5 SCC 1]. Hence, the prosecution for the offence as per Sec.118(d) of the Kerala Police Act, 2011 will not lie. The only other offence is the offence as per Sec.509 of the IPC, which deals with words, gestures or act intended to insult the modesty of a woman. Sec.509 of the IPC reads as follows:-

“509. Word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to insult the modesty of any woman, utters any words, 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.”

Sec.509 stipulates that where the accused with the intention to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object,