Rev. Fr. Mathew Pulimoottil Episcopa v. State of Kerala and Daisy George

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 7TH DAY OF MARCH 2014/16TH PHALGUNA, 1935 Crl.MC.No. 3476 of 2013 () --------------------------AGAINST THE ORDER IN CC 486/2006 of J.M.F.C.-II, ERNAKULAM ## PETITIONER(S)/PETITIONER/ACCUSED: REV.FR.MATHEW PULIMOOTTIL EPISCOPA, aged 86 years S/O.ULAHANNAN, PULIMOOTTIL HOUSE, KANHIRAMATTOM AMBALLOOR VILLAGE, ERNAKULAM DISTRICT. BY ADVS.SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER SRI.JOLLY GEORGE ## - COMPLAINANT(S)/RESPONDENTS/STATE & DE FACTO COMPLAINANT: 1. STATE OF KERALA (REPRESENTED BY THE ASSISTANT SUB INSPECTOR OF POLICE ERNAKULAM CENTRAL POLICE STATION CRIME NO.726/2006) REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. SMT.DAISY GEORGE,, AGED 80 YEARS W/O.K.I.GEORGE, PAVUDATHKATTADIYIL HOUSE, CONVENT ROAD ERNAKULAM COLLEGE P.O., ERNAKULAM DISTRICT PIN-682035. FOR R1 PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN FOR R2 BY ADVS. M/S. GEO PAUL, SANU MATHEW, R.VINU RAJ & C.R.PRAMOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3476 of 2013 () --------------------------- ## APPENDIX ## PETITIONER(S)' ANNEXURE ------------------------ ANNEXURE-A1: COPY OF THE COMPLAINT MADE BY THE 2ND RESPONDENT BEFORE TYHE CITY POLICE COMMISSIONER, KOCHI CITY. ANNEXURE-A2: COPY OF THE FIR IN CRIME NO.726/2006 OF ERNAKULAM CENTRAL POLICE STATION. ANNEXURE-A3: COPY OF THE CHARGE SHEET DATED 16.06.2006. ANNEXURE-A4: COPY OF THE STATEMENT OF THE 2ND RESPONDENT RECORDED BY THE 1ST RESPONDENT DURING INVESTIGATION. ANNEXURE-A5: COPY OF THE KALPANA NO.16 OF 2006 DATED 11.3.2006 OF METROPOLITAN OF KOCHI DIOCESE. ANNEXURE-A6: COPY OF THE KALPANA DATED 08.06.2006 WITH NO.49/2006. ANNEXURE-A7: COPY OF THE INJUNCTION ORDER IN IA NO.3986/2006 IN OS NO.515/2006 OF MUNSIFF COURT, ERNAKULAM. ANNEXURE-A8: COPY OF THE FIR IN CRIME NO.726/2006 OF ERNAKULAM CENTRAL POLICE STATION. /true copy/ P.S. to Judge **CR** ## **N.K.BALAKRISHNAN, J.** **............................................ Crl.M.C. No. 3476 of 2013 ............................................** ## **Dated: 7-3-2014** ## **ORDER** The petitioner is the accused in C.C. NO. 486/2006 pending before JFCM - II, Ernakulam. Offence alleged against him is punishable under Section 509 I.P.C. The charge-sheet reads to the effect that on 14-5-2006 at about 7 a.m. the accused with the intention to insult the complainant abused her in the presence of the public. The accused is the Vicar of that Church. It is alleged that he asked “Daisy, why are you peeping ? Why are you standing here ? For peeping, nothing is being done here”. This according to the prosecution would attract the offence under Section 509 I.P.C. Section 509 I.P.C reads:- **“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 Crl.M.C. No. 3476 of 2013 **2** 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”. 2. The learned counsel for the petitioner submits that there is no allegation to the effect that the accused made any gesture or that he exhibited any object at the complainant. It is also submitted that nothing was said by the accused which would intrude upon the privacy of the complainant. It can never be imagined that the words allegedly used by the accused which are incorporated in the charge-sheet and in her complaint would ever insult the modesty of any woman. The words allegedly uttered by the accused can never be said to be a word intruding upon the privacy of the complainant. There was no indecent representation of P.W.1. No defamatory statement was also made. Learned counsel for the petitioner would submit that it would defy the logic to invoke the offence under Sec. 509 I.P.C. so as to proceed against the petitioner herein. It was held by the Hon'ble Supreme Court in **S. Khushboo v. Kanniammal - AIR 2010 SC 3196** :- Crl.M.C. No. 3476 of 2013 **3** “Similarly, Section 509 I.P.C criminalises a 'word, gesture or act intended to insult the modesty of a woman' and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act”. 3. The learned counsel for the respondent/complainant submits that the words used by the accused have to be understood in the context in which such words were used. It is alleged that the accused made that insinuation against the complainant while she entered the Chapel/Church when there were so many other persons to hear and as such those words did intrude upon the privacy of the complainant. From the words quoted in the charge-sheet I could not see any word which would intrude upon the privacy of the complainant nor can it be said that it was intended to insult the modesty of that woman. Simply because the complainant thinks that the words uttered by the accused carried some other meaning it cannot be said that the accused can be put to trial. Where the allegations made in the first information statement/charge-sheet even Crl.M.C. No. 3476 of 2013 **4** if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, it would be well within the jurisdiction of this Court to quash the proceedings, for otherwise the accused may have to face an unnecessary trial. Similarly, where a criminal proceeding is manifestly attended with malafides and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge then also this court would be justified in invoking Sec. 482 Cr.P.C. It is true that the power under Sec. 482 Cr.P.C. to quash a criminal proceedings can be exercised only sparingly and only when such an exercise is justified by the fact situation of the case. It has to be exercised with greater pragmatism. 4. In **Shakson Belthissor v. State of Kerala & Anr. 2010 AIR SCW 2492** it was held by the Apex Court that while exercising inherent jurisdiction it should not interfere with a genuine complaint but it should certainly Crl.M.C. No. 3476 of 2013 **5** not hesitate to intervene in appropriate cases. It was held that one of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint. 5. I fail to comprehend how the substance of the charge-sheet quoted earlier would amount to words or gestures intended to insult the modesty of the complainant or that it was intended to intrude upon the privacy of the complainant. In Annexure - I which is the complaint given by the complainant it was stated that when she went to the Chapel for prayers, the accused herein insulted her in public, stating Daisy what are you peeping through, why are you standing here; for peeping I am not doing anything else here”. It is not known how the aforesaid words would attract Sec. 509 I.P.C. The learned counsel for the complainant would submit that the accused made those comments in front of the believers who came to the chapel for prayers and it was calculated to defame the Crl.M.C. No. 3476 of 2013 **6** complainant. 6. It appears there is long standing dispute with regard to the ownership and management of the chapel, cemetery etc. There were/are series of civil litigations between the two groups with regard to the ownership and management of the cemetery at Elamkulam. It is stated that there are about 22 criminal cases also pending before various criminal courts instituted by either side. Whatever that be, the question here is, whether the words allegedly used by the accused, which are seen incorporated in the complaint and in the charge-sheet would prima facie show that those words were intended to intrude upon the privacy of the complainant or that it was intended to insult the modesty of the complainant. The ingredients to attract the offence under Sec. 509 I.P.C. are not seen in the charge-sheet filed by the police or in the complaint given by the complainant/respondent. Learned counsel for the petitioner would submit that the essence of a woman's modesty is her sex. The alleged utterance of words by the Crl.M.C. No. 3476 of 2013 **7** petitioner has nothing to do with the modesty of the complaint. At no stretch of imagination, it can be said that the words allegedly uttered by the accused have got any connection with the modesty of the complainant. It was held by the Hon'ble supreme Court in **Rupan Deol Bajaj v.** ## **K.P.S. Gill (1995 (2) KLT 830** ):- _“Since the word 'modesty' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to 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 proceeding from instinctive aversion to impure or coarse suggestions”._ ## 7. In **Aloshia Joseph v. Dr. Joseph** **Kollamparambil - (2009 (1) KLT 740)** it was held by this Court that the modesty contemplated under Section Crl.M.C. No. 3476 of 2013 **8** 509 is to be understood as the “womanly propriety of behavior”. Even if the allegations made in the complaint and the materials collected in support of the same are uncontroverted still it cannot be said that those allegations do disclose the commission of an offence under Section 509 IPC or any other offence. The continuance of the criminal proceedings against the petitioner would be an abuse of the process of court. Hence, this Crl.M.C is allowed. Further proceedings in C.C. 486/2006 on the file of the Judicial First Class Magistrate - II, Ernakulam are quashed. _Dated this the 7[th] day of March, 2014._ ## **N.K. Balakrishnan (Judge)** Crl.M.C. No. 3476 of 2013 **9** - “ **ഡ�യ�� എന�ണ ഒള�ഞ�ന��ക�നത. എന���ണ ഇവ�ഡ� വന� ��ലക�നത. ഒള�ഞ�ന��ക�വ�ന ഞ�ന നവഡ��ന�� ഡ�യ�ന�ല!** ”