Petitioner's plea for quashment denied; motive and delay require exploration at trial.

O R D E R

The petitioner herein is the sole accused in Crime No.1438/2020 of Perumbavoor Police Station, now pending as S.C.No.1235/2022 before the Special Court (for the trial of cases relating to Atrocities and Sexual violence against women and children), Ernakulam. The petitioner seeks quashment of the said crime and all further proceedings therein.

2. Heard the learned counsel for the petitioner; learned counsel for the 2^nd respondent/defacto complainant and the learned Public Prosecutor. Perused the records.

3. Learned counsel for the petitioner would submit that the petitioner is a Director of several short films, wherein the defacto complainant and her two daughters used to act frequently. Accordingly, a short film was taken and its inaugural launch was conducted at I.M.A. Hall, Ernakulam. In the inaugural function, the defacto complainant had gone around saying that she is the heroin in the short film.

However, the petitioner had casted another person as the heroin, which infuriated the defaco complainant. Seven months after the inaugural function, the instant F.I.S was given by the defacto complainant on 14.07.2020, alleging that she was raped by the defacto complainant, besides taking her nude photos. The incident, as per the F.I.S, took place on 20.06.2019 in a hotel at Perumbavoor. Learned counsel would primarily submit that this is nothing, but a false story concocted by the defacto complainant, to wreck vengeance upon the petitioner/accused. Secondly, it was pointed out that there is a delay of 388 days in preferring the F.I.S, reckoned from the date of F.I.S, which is not explained at all. Thirdly, it was pointed out that the offence under Section 66E of the Information Technology Act is not attracted, inasmuch as there is no allegation, whatsoever, with respect to the publication of any image of the private area of the defacto complainant.

4. This application was seriously opposed by the learned Public Prosecutor. Learned Public Prosecutor would submit that the motive behind the crime is something to be unfurled during the course of evidence in the trial and cannot be prejudged now. As regards delay, the same, by itself, is not a ground to quash the entire proceedings. It would still be open for the defacto complainant to explain the delay before the trial court. Regarding the offence under Section 66E of the IT Act, it is the submission of the learned Public Prosecutor that publication, as such, is not required; capturing an objectionable image by itself, is sufficient to constitute the crime.

5. The above submissions of the learned Public Prosecutor is endorsed by the learned counsel for the 2^nd respondent. Learned counsel would also submit that the defacto complainant was in fact trapped by the petitioner by inviting her to his room, in the guise of changing the dress.

6. Having heard the learned counsel appearing for the respective parties, this Court finds little merit in the instant Crl.M.C. As rightly pointed out by the learned Public Prosecutor, the motive behind the crime and the question as to whether the instant case is a false and a concocted one, is a matter to be evolved during the course of trial. There cannot be any prejudgment of the issue. At any rate, a quashment cannot be granted on that ground. The same is the case with respect to the delay. It is true that there is a delay of 388 days and unless the delay is explained properly, the same will have a deleterious impact on the prosecution case. However, without knowing as to whether the defacto complainant has any plausible explanation for the delay, the question of quashment cannot be thought of. This Court is in full agreement with the submission made by the learned Public Prosecutor as regards the offence under Section