Point of Law : Section 509 reads word, gesture or act intended to insult modesty of a woman.

ORDER :

The petitioner, the sole accused in C.C.No.990 of 2019 on the file of the Judicial First Class Magistrate Court-I, Kottayam, which arises from Crime No.629 of 2019 of the Manarkad Police Station, Kottayam, seeks to quash the Final Report and all further proceedings.

2. The petitioner faces charges under Sections 354-D and 509 of the Indian Penal Code.

3. The prosecution case was initiated based on the First Information Statement lodged by respondent No.1, who was then employed as Zilla Zainik Welfare Officer at the District Office, Kottayam. The petitioner was employed as Assistant Zilla Zainik Welfare Officer in the Office.

4. The crux of the allegations in the complaint filed by respondent No.1 is as follows:-

4.1 On 29.04.2019, the petitioner was on leave. At about 10.30 am, the Office phone rang. Respondent No.1 attended the call and said hello. The petitioner was on the other side of the line. He told respondent No.1 that he had certain photographs and documents and he would file a complaint based on them. As respondent No.1 could not clearly hear what the petitioner was saying, she disconnected the call. The petitioner called again. Respondent No.1 did not respond. Then the petitioner called another Officer. The petitioner threatened him also. He repeatedly called respondent No.1 and talked to her in a rude manner. The repeated calls made by the petitioner affected the mental peace of respondent No.1 and disturbed her.

4.2 The petitioner also threatened Shri. Muraleedharan, another Officer. He questioned him why respondent No.1 did not take the phone.

5. Respondent No.1 reiterated her allegations in the statement filed before the Magistrate under Section 164 Cr.P.C.. She added that the petitioner threatened her that he would complain to the Vigilance. He threatened that he would set fire to the exchange, respondent No.1 added. The petitioner sent Whatsapp messages to her with the intent to disturb her.

6. The learned Counsel for the petitioner Sri. M.P. Madhavankutty, submitted that the ingredients of the offence of ‘Stalking’ as defined in Section 354-D of the Indian Penal Code are absent in the allegations levelled against the petitioner.

7. The learned Counsel for respondent No.1, per contra, contended that repeated attempts to contact a woman over the phone or in any other manner attracts the offence under Section 354-D of the Indian Penal Code. The learned Public Prosecutor supported the contentions of the learned counsel for respondent No.1.

8. Section 354-D, which defines “stalking” was introduced in the Indian Penal Code by way of the Criminal Law Amendment Act, 2013. The Criminal Law Amendment Act, 2013 was passed in the Parliament based on the report of the Committee on Amendments to Criminal Law headed by Justice J.S. Verma following Nirbhaya’s Case. Based on the report of the Committee, the Criminal Law (Amendment) Ordinance, 2013 was promulgated wherein, the offence of stalking was introduced as Section 354D, which reads thus:-

“354D(1)-Stalking : Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence of serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking:

Provided that the course of conduct will not amount to stalking if the person who pursued it shows-

(i) That it was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state; or

(ii) that it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) that in the particular circumstances the pu