The court affirmed that posting obscene messages on a public forum can constitute an insult to modesty irrespective of the victim's membership in that forum.

O R D E R

The accused in C.C No.471/2018 on the files of the Judicial First Class Magistrate Court-VIII, Maradu, has filed this petition under Section

482 Cr.P.C, to quash the proceedings against him in the aforesaid case.

2. The prosecution case is summarised as follows:

The petitioner was working as Front Office Executive in a hotel where CW1, a lady aged 37 years, was working as Human Resources Manager. The petitioner had to resign from the above hotel due to the non-approval of the excess leave availed by him. For the above reason, the petitioner was having enmity with CW1. As a result of the above enmity of the petitioner with CW1, he posted sexually coloured obscene messages portraying CW1 as a lady of loose morales in the Whatsapp group of the present and past employees of that hotel, and thereby denigrated her. Thereafter, he deleted the objectionable messages from his mobile phone, to cause disappearance of evidence. Thus, the petitioner committed the offences punishable under Sections 509 and 201 I.P.C, Section 67 of the Information Technology Act , and Section

120(o) of the Kerala Police Act .

3. In the present petition, the petitioner would contend that he is totally innocent and that a false case has been foisted against him. It is further contended that none of the offences alleged in the final report are attracted, in the facts and circumstances of the case.

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

5. It is argued by the learned counsel for the petitioner that the offence under Section 509 I.P.C is prima facie not attracted in the case on hand since, even according to CW1, she was not a member of the Whatsapp group where the petitioner is alleged to have published the objectionable posts. There is absolutely no merit in the above argument of the learned counsel for the petitioner. Since the petitioner had published the objectionable posts containing sexually coloured remarks and obscene comments pointed to CW1 in the whatsapp group of the present and past employees of the institution, where CW1 is working, it is obvious that the aforesaid act was done with the intention to insult the modesty of CW1, who would definitely see the above posts made in the Whatsapp group of her present and past colleagues. The mere fact that CW1 was not a member of that Whatsapp group, would not exclude the applicability of I.P.C. Thus, there is absolutely no basis for the challenge in the above regard raised by the petitioner.

6. The final report and the accompanying records relied on by the prosecution would go to show that the petitioner had deleted the objectionable posts from his mobile phone with the intention to cause disappearance of evidence. Therefore, the allegations in the above regard would definitely constitute the offence envisaged under Section 201 I.P.C. Likewise, the act of the petitioner, making obscene posts through electronic media, with the intention to insult the modesty of CW1, would definitely bring home the offence under Section 67 of the Information Technology Act . The argument of the learned counsel for the petitioner that the comments made by the petitioner in the aforesaid posts, would not constitute obscenity, cannot be accepted, since it could be seen from the statements of the witnesses, who had seen those posts made in the Whatsapp group, that sexually coloured comments by even referring to the private parts of CW1 were made in those posts. It is not possible for this Court to analyse the above comments and decide in a proceedings under Section 482 Cr.P.C, as to how far it could be termed as obscene. It is for the Trial Court to decide all those aspects, after recording the evidence adduced by the pros