Important points:
The act of the petitioner in having send a single Whatsapp message to his friend would amount to an act whereby legal knowledge to be imputed on the petitioner that such message is likely to come to the knowledge of the 2nd respondent or that it is likely to cause insult to the modesty or intrude upon the privacy of the 2nd respondent, etc. In the light of all these aspects this Court is also constrained to take the view that the vital ingredients of the offence as per Sec.509 of the IPC are not made out

ORDER :

The prayers in the above Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure, 1973, are as follows:

“(i). Quash Annexure No.A1 and Annexure A2 in crime No.404/2015 of Thiruvambady Police Station, and

(ii). Pass any appropriate order as deemed just and proper.”

2. Heard Sri.Jikku Seban George, learned counsel appearing for the petitioner (accused) and Sri.B.Jayasurya, learned Prosecutor appearing for R-1 (State) and Sri.S.R.K.Prathap, learned counsel appearing for R-2 (lady defacto complainant).

3. The petitioner has been arrayed as the sole accused in the instant impugned Anx.A1 Crime No.404/2015 of Thiruvambady Police Station, Kozhikode District, for offences punishable under Secs.153 & 506 of the IPC. The gist of the allegations against the petitioner in the above crime is that, on 24.10.2015 the petitioner had allegedly sent a picture/photograph through Whatsapp from his mobile number to the mobile cell number of one Sri.C.V.Sunit and the transmitted picture/photograph was the campaign poster of the 2nd respondent lady defacto complainant in which the faces of the 2nd respondent who was a candidate as well the national leader of a political party were disfigured. It appears that the 2nd respondent was made aware of the said photograph through her nephew who came in possession of the same. Anx.A-1 is the copy of FIR which led to the registration of Crime No.404/2015 of Thiruvambady Police Station, on 25.10.2015 in which the petitioner herein has been arrayed as the sole accused for offences punishable under Secs.153 & 506 of the IPC. The police after investigation has filed the impugned Anx.A-2 final report/charge sheet for the abovesaid offences as per Secs.153 & 509 of the IPC.

4. The main contentions urged by the petitioner are to the effect that even if the abovesaid allegations are completely assumed to be true, still the vital ingredients for constituting the offence as per Secs.153 & 509 of the IPC are not disclosed in the instant case. Per contra, the learned Prosecutor appearing for the 1st respondent and the learned counsel appearing for the 2nd respondent lady defacto complainant would urge that no interference would call for in this case and that the ingredients of the alleged offences are made out in this case and the petitioner will have to stand for trial, etc.

5. Sec.153 of the IPC provides as follows:

“153. Wantonly giving provocation with intent to cause riot— if rioting be committed—if not committed.—Whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”

6. In the instant case the specific allegation against the petitioner is that, he had sent the said disfigured photograph of the 2nd respondent and that of her national party leader through Whatsapp to one person one Sri.C.V.Sunit and later the 2nd respondent’s nephew had became aware about the said transmission of photograph. There are no allegations that the petitioner has sent any Whatsapp messages on a group basis.

7. The learned counsel appearing for the 2nd respondent has made available the photograph of original election poster and the photograph said to have been transmitted by the petitioner in which the photographs of the 2nd respondent and the national party leader have been disfigured.

8. A reading of the provisions contained in Sec.153 of the IPC would disclose that the same is a provision envisaging an offence which deals with wantonly giving provocation with intend to cause riot, etc. It is stipulat