The act of sending indecent items to a woman constitutes an offence under Section 509 IPC, and double jeopardy is not applicable since the prosecutions are distinct.

O R D E R

The order dated 24.06.2022 of the Judicial First Class Magistrate Court-I, Neyyattinkara, in C.M.P.No.134/2022 in C.C.No.1962/2018 is under challenge in this revision petition filed by the accused in the said case, who faced criminal prosecution for the commission of offences under Sections 354 & 509 read with Section 34 of the Indian Penal Code, 1860 (in short, ‘ IPC '), and Sections 4 & 6 of the Indecent Representation of Women Prohibition Act, 1986 (in short, ‘Act’). In the aforesaid petition filed under Section 239 of the Code of Criminal Procedure, 1973, the accused sought their discharge from the criminal prosecution. The learned Magistrate, by the impugned order found that there is ground for presuming that the petitioners committed offence under Section 509 read with and Section 4 read with Section 6 of the Act. However, the petitioners were discharged of the offence under Section 354 .

2. The prosecution case is that the petitioners sent old and ugly undergarments of ladies by way of parcel to the de facto complainant, a lady working as Principal of a Higher Secondary School, with the intention to insult her modesty.

3. In the present petition, the petitioners would contend that the offences under Section 509 IPC and Section 4 read with Section 6 of the Act, are not attracted in the facts and circumstances of the case. Another contention raised by the petitioners is that in respect of the same offence, the petitioners are being prosecuted in a Court at Tamil Nadu and hence they are likely to suffer double jeopardy.

4. Heard the learned counsel for the petitioners, the learned counsel for the additional second respondent and the learned Public Prosecutor representing the State of Kerala.

5. Section 509 IPC reads as follows:

509. Word, gesture or act intended to insult the modesty of a woman.—

“Whoever, intending to insult the modesty of any woman, utters any word, 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.”

6. It is clear from the aforesaid Section that it would come into play in a case where the accused makes any gesture or exhibits any object or intrudes upon the privacy of a woman with the intention to insult her modesty. As far as the present case is concerned, the act of the accused sending old and ugly undergarments of ladies by way of parcel to the additional second respondent, a lady working as a Principal of a Higher Secondary School, would definitely amount to exhibiting an object and making a gesture, and intruding into the privacy of that lady with the intention to insult her modesty. Therefore, there is absolutely no merit in the contention of the petitioners that the offence under Section

509 IPC is not attracted in the case on hand.

7. Going by the definition of ‘indecent representation of women’

under Section 2(c) of the Act, the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals would amount to indecent representation of women. As far as the present case is concerned, the act of the petitioners sending old and ugly undergarments will not come under the aforesaid definition contained in Section 2(c) of the Act. Therefore, the discharge claimed by the petitioners in respect of the aforesaid offence, is well founded.

8. With regard to the contentio