The court ruled that prima facie evidence exists against the petitioner for sexual humiliation; the trial court will assess the intent and obscenity of the words used.

O R D E R

The second accused in S.C No.1646/2023 on the files of Sessions Court, Ernakulam, has filed this petition under section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to quash the proceedings against him in the said case. The offences alleged against the petitioner are under sections 294(b), 354A(1)(iii)(iv), 506 and 509 I.P.C r/w Section 34 I.P.C, Sections 3(1)(r)(w)(ii) and 3(2)(va) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,1989 and Sections 66E, 67A and 84C of the Information Technology Act, 2000.

2. The case against the petitioner is summarised as follows:

The petitioner works in an online channel conducted by the first accused as Chief Editor. The de facto complainant, who belongs to the Scheduled Tribe community, joined the above online channel as an employee from 20.04.2022 onwards. The first accused and the petitioner, who belong to the upper caste, are aware of the fact that the de facto complainant belongs to the Scheduled Tribe community. While the de facto complainant was working there, the first accused used to sexually humiliate her by uttering obscene words and also resorting to body shaming. The mental torture in the above regard continued when the de facto complainant refused to create a news clip depicting a lady Minister of the State Cabinet in bad light. The petitioner herein joined the first accused in body shaming the de facto complainant by making comments of sexual imputation. The petitioner and the first accused sent messages with obscene words attributed to the de facto complainant. The de facto complainant was subjected to criminal intimidation for her refusal to act nakedly for recording a video which would give the impression that the lady shown thereunder is a Minister of the State Cabinet. Thus, the petitioner along with the first accused, committed the aforesaid offences.

3. In the present petition, the petitioner would contend that none of the offences, as alleged in this case, are attracted, and hence the proceedings against him are liable to be quashed.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

5. On going through the first information statement as well as the additional statement given by the de facto complainant to the Investigating Officer, it is seen that there are specific allegations attributed to the petitioner about the sexual humiliation meted out to the de facto complainant by making comments of obscene imputations. It is also seen from the records that the petitioner is alleged to have sent a message to CW8 attributing sexual imputation in the dealings between the de facto complainant and the first accused. Thus, it is apparent from the prosecution records that the offences alleged against the petitioner are prima facie brought out from it. The acceptability of the above evidence and the question whether the words used by the petitioner could be termed as obscene or not, are matters to be dealt with by the Trial Court after analysing the background and the context in which the petitioner used the objectionable words. It is not possible for this Court to have an analysis of the above aspects in a proceedings under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

6. The learned counsel for the petitioner relied on various decisions of this Court on the scope and ambit of obscenity envisaged under Section 294(b) I.P.C and argued that the objectionable words attributed to the petitioner herein cannot be termed as obscene words. It is pertinent to note that the crux of the allegations levelled against the petitioner herein is tha