IMPORTANT POINT
The court quashed charges of voyeurism under Section 354C due to lack of privacy but allowed prosecution for insulting modesty under Section 509 of the IPC.

ORDER :

A. Badharudeen, J.

This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the petitioner, to quash Annexure A3 Charge Sheet and all further proceedings thereunder in C.C.No.451/2022 on the files of the Judicial First Class Magistrate Court - I, North Paravur, arose out of Crime No.486/2022 of North Paravur police station, Ernakulam. The petitioner herein is the 1st accused in the above case.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the relevant records.

3. In this matter, the prosecution alleges commission of offences punishable under Sections 354C and 509 of the Indian Penal Code (for short, ‘the IPC’ hereinafter). The prosecution allegation is that, at about 4.30 hrs. on 3.5.2022, while the de facto complainant was in front of her house, accused Nos.1 and 2 reached there in a car and taken the photographs of herself and the house. When she reached there near the gate, she restrained their car and questioned the photography. Then, both the accused shown gestures with sexual overtures. Specific allegation against the 1st accused is that, he had shown gesture depicting that of caught hold of her breast and the 2nd accused also shown a gesture with sexual intent and with dual meaning. Thereby, the modesty of the de facto complainant was outraged. This is the base on which, the prosecution alleges commission of the above offences.

4. While seeking quashment of the entire proceedings, the learned counsel for the petitioner argued that, even though the de facto complainant alleges commission of the overt acts stated in the FIS, in the mobile phone recovered from the accused, no photographs found. He also stated that the other witnesses had only hearsay knowledge regarding the occurrence. The learned counsel also pointed out that the de facto complainant while working as the Secretary of Nandyattukunnam Sree Subrahmania Swamy temple committee, the petitioner questioned her actions and due to rivalry, this case has been foisted.

5. The learned Public Prosecutor would submit that, going by the prosecution records, the prosecution case is well made out, prima facie, even though the statement does not fully suggest offence under Section 354C of the IPC.

6. I have gone through the FIS and the same recites that, at about 4.30 hrs. on 3.5.2022, while the de facto complainant was in front of her house, accused Nos.1 and 2 reached there in a car and taken the photographs of herself and the house. When she reached there near the gate, she restrained their car and questioned the said photography. Then, both the accused shown gestures with sexual overtures. Specific allegation against the 1st accused is that, he had shown gesture depicting that of caught hold of her breast and the 2nd accused also shown a gesture with sexual intent and with dual intent.

7. Section 509 of the IPC provides as under :

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.

8. Similarly, Section 354C of the IPC provides as under :

354C. Voyeurism.—Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, w