O R D E R

This Criminal Miscellaneous case is filed to quash Annexure-II final report, which is pending as CC No. 3585/2016 before the Judicial First Class Magistrate Court-II, Thrissur. The above case is charge-sheeted alleging offences punishable under Secs.354D(i), (ii) of the IPC and Sec.119 (b)

of the Kerala Police Act.

2. The prosecution case is that the accused persons mentally and physically tortured the petitioner by posting her photographs in social media without permission and sent abusive message through WhatsApp. Hence, it is alleged that the accused committed the offences.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

4. Annexure-II is the final report filed against the petitioner. It will be better to extract the relevant portion of Annexure-II.

“്ᩚതതി ര്ᩂര വർഷതതᩈ᪘ളമᩈ᪘യതി ആവലᩈ᪘തതികᩈ᪘രതിയുടടെ അറതിതവᩈ᪘ സ്ᩜതതമᩈ᪘ ഇലᩈ᪘ടത ടെതിയᩈ᪘നതിയുടടെ തഫᩈ᪘തടᩈ᪘ തഫസᩤ᪎കതിൽ ഇടᨾ᪚ ഇവൾ എൻടറ ഭᩈ᪘ര്᩟യല എന᪎❒ മറ᪎❒ ്ᩚചരതിപതിചᨾ᪚ ടെതിയᩈ᪘നതിയുടടെ സ്ᩭകᩈ᪘ര്᩟തയᨾ᪚ ഭ᪎❒ഗ᪎❒ വരുതതിയു᪎❒ തഫᩈ᪘ണതിൽ വതിളതിചᨾ᪚ നതിര്ᩌര᪎❒ അസഭ്᩟്ᨲൾ പറഞ᪎❒ നതിര്ᩌര᪎❒ അശᩨ᪍ല ടമതᩰ᪔ജുകൾ അയച᪎❒ ത്ᨲൾ ത്ᩜതിലു്ᩦ ്ᩚശ᪎❒ എലᩈ᪘വടരയു᪎❒ അറതിയതിച ആവലᩈ᪘തതികᩈ᪘രതികᨾ᪚ മᩈ᪘നഹᩈ᪘നതി വരുതതിയു᪎❒ ടെതിയᩈ᪘നതികᨾ᪚ ഇ്ᩖമല എ്ᩐറതിഞടകᩈ᪘്ᩂᨾ᪚ നതിര്ᩌര᪎❒ ശല്᩟᪎❒ ടചᩞ᪎്ᩐതᩈ᪘യതി ടവളതിവᩈ᪘കയᩈ᪘ൽ ്ᩚതതി തമൽ വകുപᨾ᪚ ്ᩚകᩈ᪘ര᪎❒ കുറ᪎❒ ടചയതിരതിᨪ᪎ന .”

എ്ᩐᨾ᪚

5. Admittedly, the defacto complainant is the wife of the petitioner. The 1^st offence alleged is under Sec.354D(i) & (ii). It will be better to extract Sec.354 D IPC.

“354-D. Stalking.—(1) Any man who—

(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:

Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or (ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or (iii) in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.”

6. To attract Sec.354D (i) & (ii) IPC, the prosecution has to prove that the accused follows a woman and contacts or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman or monitors the use by a woman of the internet, email or any other form of electronic communication. The same amounts to stalking. As I mentioned earlier, in this case, the wife is the defacto complainant. In the facts and circumstances of this case, I am of the considered opinion that it is difficult to attract Sec. 354D(i) & (ii) of the IPC in this case against the petitioner, who is admittedly the husband of the defacto complainant. There may be matrimonial dispute between the petitioner and the defacto complainant. If there is cruelty and harassment, the defacto complainant can proceed against the petitioner under Sec.498A IPC. But, in the facts and circumstances of this case, I am of the considered opinion that Sec. 354 D(i)

and (ii) of the IPC is not attracted in this case.

7. The other offence alleged is under Sec.119(b)

of the Kerala Police Act. Sec. 119 (b) says that if an accused takes photographs or records videos or propagates them at any place in a manner affecting the reasonable privacy of women, shall, on conviction, be punished with imprisonment which may extend