M.V. Joseph v. State of Kerala and Anju

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 21[ST] DAY OF MAY 2024 / 31ST VAISAKHA, 1946** **CRL.MC NO. 5402 OF 2022** **CRIME NO.1202/2019 OF HILL PALACE POLICE STATION, ERNAKULAM** **TO QUASH/SET ASIDE ANNEXURE A2 FINAL REPORT IN C.C. NO.1146 OF 2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TRIPUNITHURA** **PETITIONER/ACCUSED:** **M.V. JOSEPH, AGED 61 YEARS, MULAVUKAD HOUSE, KUREEKKAD P.O, KUREEKKAD VILLAGE, KANAYANNUR TALUK, PIN - 682305** **BY ADVS. ABRAHAM P.GEORGE M.SANTHY JOHNY THOMAS C.A.ANAS M.B.RATHEESH JOSE K.V.** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031.** - **2 ANJU** **AGED 36 YEARS, W/O PRAVEEN KUMAR, VADAPPURATH HOUSE, NEAR ST. THOMAS SUNDAY SCHOOL, PAINUMKAL PARA, THALAKODU P.O, KANAYANNUR VILLAGE, KANAYANNUR TALUK, PIN – 686693.** ## **SRI.RENJITH GEORGE, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** -:2:- Crl.M.C. No.5402 of 2022 **'C.R.'** ## **ORDER** ## **Dated this the 21[st] day of May, 2024** This Crl.M.C. has been filed under Section 482 of the Code of Criminal Procedure and the prayers in the petition are as under:- a) Call for the entire records leading to Annexure-A2 final report/charge sheet in C.C. No.1146/2019 in the file of the Hon'ble Court below- Judicial First Class Magistrate Court, Tripunithura, quash/set aside the same and all the proceedings arising out of the same in the interest of justice. b) Grant such other reliefs which are prayed and to be deem fit by this Hon'ble Court in the interest of justice. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. 3. Perused the records along with the decisions cited by the learned counsel for the petitioner. 4. In this crime, the concise allegation is that when the de-facto complainant visited the office of BSNL in Tripunithura, -:3:- Crl.M.C. No.5402 of 2022 on 26.06.2019, for the purpose of converting her micro sim to nano type to suit her mobile phone vide; No.8547312193, and when she approached the male staff (accused herein) for this purpose, the accused not properly done the work. When the defacto complainant informed the same, the accused demanded her to pay Rs.100/- and to purchase a new sim. The said proposal was not acceptable to the de-facto complainant. At this juncture, the accused commented that " ഒര�മ�ത�ര� വ�ല�യ�ൽ പ�മ�ന� ഞ�ൻ ഇര�ക�ന എട�ത� മവ�ടത� �ച വപ�നലയ�യവ��". Hearing the same the de facto complainant quarreled with accused. According to the defacto complainant, the said comment was made by the accused with intention to insult the de-facto complainant. Thus the accused alleged to have committed the offence punishable under Section 509 of the Indian Penal Code. 5. While pressing for quashing the proceedings as prayed for, the learned counsel for the petitioner argued that no -:4:- Crl.M.C. No.5402 of 2022 ingredients to attract an offence punishable under Section 509 of the Indian Penal Code is made out by the prosecution records. The learned counsel for the petitioner placed two decisions of this Court to contend that simply because the complainant thought that the words uttered by the accused carried some other meaning it could not be said that the accused to be put to trial, on alleging commission of offence punishable under Section 509 of IPC. 6. The decisions placed are; (1) **Fr. Mathew Pulimoottil Episcopa v. State of Kerala [2014 (2) KLT 1]** and (2) **Basheer v. State of Kerala [2014 (4) SN 65 (C. No.81)]** . Referring to the above decisions, it is argued that the subject of insult for a prosecution under Section 509 of the Indian Penal Code must be the modesty of woman and not the woman as such. 7. The learned Public Prosecutor would submit that going by the comments, prima facie, the accused intended to intrude upon the privacy of the defacto complainant and thus the -:5:- Crl.M.C. No.5402 of 2022 offence is made out. 8. In order to consider the case advanced by the petitioner, and resisted by the Public Prosecutor, reference to Section 509 of IPC is necessary, the same is extracted as under:- **“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 one year, or with fine, or with both”. 9. This Court in **Fr. Mathew Pulimoottil Episcopa's case** (supra) considered the allegation of commission of offence punishable under Section 509 IPC, where the accused said “Daisy, why are you peeping? Why are you standing here? For peeping, nothing is being done here”, it was held that the above statements did not constitute an offence under Section 509 IPC. Similarly, -:6:- Crl.M.C. No.5402 of 2022 this Court in **Basheer's case** (supra) considered the defamatory allegations published in a notice by the accused and it was held that mere insult or false allegation would not attract a prosecution under Section 509 IPC. For a prosecution under Section 509 IPC, there must be a definite allegation of insult to the modesty of a woman or intrusion into the privacy of woman. 10. The learned counsel for the petitioner also submitted that in the statement given by one among the occurrence witnesses, it was stated that when the sim was given back to the defacto complainant by the accused after altering the same as a nano type, the defacto complainant also made an insulting and humiliating comment stating that the sim seemed like one bitten by a dog and in reply to the same, the accused said the statement herein above extracted, commonly used as a proverb. 11. In order to bring home an offence punishable under Section 509 IPC, the ingredients are; utterance of any word, makes any sound or gesture, or exhibits any object, with an -:7:- ## Crl.M.C. No.5402 of 2022 intention to insult the modesty of a woman, or with intention to intrude upon the privacy of such a woman. 12. Coming to the definition of the word 'modesty', the same has not been defined in the Indian Penal Code. So it is worth to look into its dictionary meaning. As per Shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means 'womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct”. The word 'modest' in relation to woman is defined in the above dictionary as 'decorous in manner and conduct; not forward or lewd; shamefast”. Webster's Third new International Dictionary of the English Language defines modesty as”freedom from coarseness, indelicacy or indecency' a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1993 Ed) the meaning of the word 'modesty' is given as 'womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame -:8:- Crl.M.C. No.5402 of 2022 proceeding from instinctive aversion to impure or coarse suggestions. 13. To sum up, mere utterance of unpleasant or abusive words without an intention either to insult the modesty of the woman or to intrude upon the privacy of such woman would not attract offence under Section 509 of IPC. Here the allegation is confined to use of a proverb which contains an abusive element, as extracted herein above. Merely because the accused made a comment/proverb which contains an abusive element, in reply to a humiliating comment made by the defacto complainant, stating that the sim seemed like one bitten by a dog, it could not be held that the accused either insulted the modesty of a woman or intruded on her privacy. 14. On evaluation of the materials available, it could not be held that that the accused uttered the above comment usually used as a proverb with intention to insult the modesty of woman or to intrude upon the privacy of such a woman. Thus in the case -:9:- Crl.M.C. No.5402 of 2022 at hand, the ingredients to attract offence under Section 509 IPC are not made out. In such view of the matter, the petition is liable to succeed. In the result, this petition is allowed. Annexure A2 final report now pending as C.C.No.1146/2019 on the file of the Judicial First Class Magistrate Court, Tripunithura and all proceedings thereof stand quashed. Sd/- **A. BADHARUDEEN JUDGE** bpr -:10:- Crl.M.C. No.5402 of 2022 ## **APPENDIX OF CRL.MC 5402/2022** **PETITIONER'S ANNEXURES Annexure A1 THE CERTIFIED COPY OF THE FIR IN CRIME NO. 1202/2019 OF HILL PALACE POLICE STATION Annexure A2 THE CERTIFIED COPY OF THE FINAL REPORT IN CC NO. 1146/2019 IN THE FILE OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, TRIPUNITHURA**