Kerala High Court: Voyeurism Charge Quashed as Alleged Act Not a 'Private Act'; Trial Court May Consider Sexual Harassment Charge
Kochi: The Kerala High Court has partially allowed a petition seeking to quash criminal proceedings, ruling that a charge under Section 354C of the Indian Penal Code (IPC), which deals with Voyeurism, is not sustainable when the alleged act of capturing images occurred in front of the complainant's house, as such a location does not qualify as a place where a 'private act' with an expectation of privacy takes place.
However, the court, presided over by Justice
A.Badharudeen
, clarified that the prosecution can continue under Section 509 IPC (Word, gesture or act intended to insult the modesty of a woman). Furthermore, the court observed that the alleged actions by the accused could potentially attract charges under Section 354A(1)(i) and (iv) of the IPC, related to Sexual Harassment, directing the trial court to consider the sufficiency of materials for framing charges under this section at the appropriate stage.
Case Background
The case arose from Crime No. 486/2022 of
North Paravur police station
, leading to C.C. No. 451/2022 before the Judicial First Class Magistrate Court - I, North Paravur. The petitioner, the 1st accused in the case, approached the High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking to quash the charge sheet and all related proceedings.
The prosecution alleged that at around 4:30 am on May 3, 2022, the two accused arrived in a car in front of the de facto complainant's house and took photographs of her and the house. When questioned by the complainant, who approached their car, the accused allegedly made gestures with sexual overtures.
Specifically
, the allegation against the 1st accused was a gesture depicting catching hold of her breast, while the 2nd accused allegedly made a gesture with sexual intent and dual meaning, thereby outraging the modesty of the complainant.
The petitioner's counsel argued for quashing, asserting that no photographs were found on the mobile phone recovered from the accused, other witnesses had only hearsay knowledge, and the case was politically motivated due to rivalry stemming from the complainant's role in a temple committee where the petitioner had questioned her actions.
The learned Public Prosecutor contended that the prosecution case was prima facie made out based on the records, although conceding that the allegations might not fully support the charge under Section 354C IPC.
Court's Analysis of Charges
Justice
Badharudeen
examined the First Information Statement (FIS) and the relevant legal provisions.
The court noted the definition of Section 509 IPC, which penalizes anyone intending to insult the modesty of a woman by uttering words, making sounds or gestures, or exhibiting objects intended to be heard or seen by her, or by intruding upon her privacy.
Turning to Section 354C IPC (Voyeurism), the court reproduced the section, particularly focusing on Explanation 1, which defines "private act" as an act carried out in a place where there is a reasonable expectation of privacy, and where the victim's body parts (genitals, posterior, breasts exposed or covered only in underwear) are visible, or the victim is using a lavatory or doing a sexual act not ordinarily done in public.
The court unequivocally stated, "Even though explanation 1 to Section 354C provides that 'private act' includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy... the occurrence is in front of the house of the de facto complainant. Therefore, it could not be held that the said offence is made out."
The court emphasized that Section 354C applies only when the victim is engaged in a "private act" under circumstances where she expects not to be observed. Simply being in a public place or a private place without such secrecy, if seen or photographed without exposing specific body parts as defined in the section, would not attract Section 354C.
However, the court then referred to Section 354A IPC (Sexual harassment and punishment for sexual harassment), specifically noting sub-sections (1)(i) and (iv), which cover "physical contact and advances involving unwelcome and explicit sexual overtures" and "making sexually coloured remarks." The court found that, based on the allegations in the case, the "overt acts would attract offence under Section 354A(1)(i) and (iv) of the IPC."
Decision and Direction
Based on this analysis, the High Court concluded that while outright quashing of the entire proceedings was not warranted, the prosecution for the offence under Section 354C IPC was unsustainable and liable to be quashed, as prima facie, that specific offence was not made out from the available materials.
Consequently, the petition was allowed in part. The prosecution for the offence under Section 354C of the IPC was quashed, while the prosecution for the offence under Section 509 of the IPC was permitted to continue.
The court further directed the trial court, at the time of framing charges, to consider whether the materials on record are sufficient to frame a charge for the offences punishable under Section 354A(1)(i) and (iv) of the IPC.
A copy of the order has been directed to be forwarded to the trial court for information and necessary action.
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