# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V**
**TUESDAY, THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940 Crl.MC.No. 4504 of 2018**
**LP 334/2014 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM CRIME NO. 870/2008 OF KOLLAM EAST POLICE STATION, KOLLAM**
## **PETITIONER/ACCUSED NO.2:**
**SMITHA, AGED 38 YEARS, D/O. SULOCHANA, CHALILPUTHAN PURAYIL, KADANDHIKARA, VELLOOR KUNAM VILLAGE, MOOVATTUPUZHA TALUK,ERNAKULAM DISTRICT.**
**BY ADVS. SRI.K.B.ARUNKUMAR SRI.ANOOP JOSEPH**
## **RESPONDENTS/STATE:**
**1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PIN-682031. 2 THE CIRCLE INSPECTOR OF POLICE KOLLAM EAST, KOLLAM DISTRICT. PIN-691013.**
## **OTHER PRESENT:**
**SRI.REMESH CHAND-PUBLIC PROSECUTOR**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.02.2019, ALONG WITH Crl.MC.6637/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
Crl.MC Nos. 4504/2018 & 6637/2018 2
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V**
**TUESDAY, THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940**
**Crl.MC.No. 6637 of 2018**
**AGAINST THE ORDER/JUDGMENT IN LP 334/2014 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM**
**CRIME NO. 870/2008 OF KOLLAM EAST POLICE STATION, KOLLAM**
**PETITIONER/1ST ACCUSED :**
**ROBERT, AGED 62 YEARS, S/O. LAWRENCE, EXPRESS ESTATE, KALOOR P.O. KANAYANOOR TALUK, ERNAKULAM**
**BY ADVS. SRI.HARISH GOPINATH SRI.H.KIRAN**
## **RESPONDENTS/STATE & COMPLAINANT:**
**1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.**
**2 STATION HOUSE OFFICER, EAST POLICE STATION, KOLLAM DISTRICT-691 001.**
**BY SRI.REMESH CHAND-PUBLIC PROSECUTOR**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.02.2019, ALONG WITH Crl.MC.4504/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
Crl.MC Nos. 4504/2018 & 6637/2018 3
## **ORDER**
These petitions are filed under Section 482 of the Code of Criminal Procedure ('the Code” for brevity) with a prayer to quash the entire proceedings which originated on the strength of Crime No.870 of 2008 registered at the East Police Kollam under Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986.
2. On 9.8.2008, the police officers attached to the Kollam East Police Station headed by the Circle Inspector were engaged in search operations at the Transport Bus stand, Kollam. The petitioners herein, who were standing together, were asked to hand over their bags. A video camera and a digital camera were found inside. On inspection, it was found to contain certain explicit pictures and videos of the 2[nd] accused. They were arrested and the cameras were taken into custody. The crime was consequently registered and after investigation, final report was laid before the Judicial Magistrate. The case was taken cognizance of as C.C. No.1315/2008 by the Judicial Magistrate of the First Class II, Kollam. As the petitioners failed to appear before Court, the case
Crl.MC Nos. 4504/2018 & 6637/2018 4
against them was removed to the list of long pending cases and the same is pending as LP No.334/2014.
3. Heard the learned counsel appearing for the petitioners and the learned Public prosecutor.
4. The learned counsel appearing for the petitioners submitted that the prosecution has no case that the petitioners had published or had advertised any photographs or videos which contained indecent representation of women in any form. There is no allegation that petitioners had sold, distributed or circulated any material which contained any indecent representation of women in any form. The photograph was of the 2[nd] accused and the 1[st] accused is her partner. The photographs were of them together and according to the learned counsel, the provisions of Act 60 of 1986 will not be attracted on the allegations. Even if the images were explicit, as those pictures were that of the petitioners, and as there is no evidence that they had published or circulated the same, the prosecution proceedings cannot be sustained is the argument.
5. The learned Public Prosecutor, on instructions, submitted that the camera contained explicit photographs and videos which
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were found to be that of the 2[nd] accused and the same was evidently recorded for circulation and distribution.
6. I have considered the submissions advanced by both sides. Act 60 of 1986 was enacted to prohibit indecent representation of women through advertisements or publications, writings, paintings or in any other manner and for matters connected therewith or incidental thereto. Section 2(a) defines “advertisement” as including any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas. “Distribution” has been defined to include distribution by way of samples, whether free or otherwise. “Indecent representation of women” has been defined to mean 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. Section 3 of the Act prohibits advertisements containing indecent representation of women and it says that no person shall publish, or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement which contains indecent
Crl.MC Nos. 4504/2018 & 6637/2018 6
representation of women in any form. Section 4 prohibits publication or sending by post of books, pamphlets, etc., containing indecent representation of women and it says that no person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form. Certain exceptions are provided in the proviso to the section. Section 6 provides for the penalty for contravening the provisions of Section 3 and 4.
7. In the case on hand, there is no case for the prosecution that the petitioners had advertised or circulated their private pictures found in the cameras which were in their possession. If an adult person has a photograph of himself or herself in his or her possession which is sexually explicit in nature, the provisions of Act 60 of 1986 will not apply, unless the prosecution has a case that those photographs were distributed or published for advertisement or for any other incidental purpose. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, this Court will be
Crl.MC Nos. 4504/2018 & 6637/2018 7
well justified in quashing the proceedings invoking the inherent powers under section 482 of the Code. When the factual scenario is examined in the background of the legal principles as laid down by the Apex Court in **State of Haryana v. Bhajan Lal** (1992 CriLJ 527), the inevitable conclusion is that the criminal proceedings against the petitioners are nothing, but an abuse of the process of law.
In the result, these petitions will stand allowed. The final report and all proceedings pursuant thereto against the petitioners in C.C.No.1315 of 2008 now pending as L.P.No.334/2014 on the file of the Judicial First Class Magistrate Court-II, Kollam are quashed.
**Sd/-**
**RAJA VIJAYARAGHAVAN V.,**
**JUDGE**
IAP
Crl.MC Nos. 4504/2018 & 6637/2018 8
## **APPENDIX OF Crl.MC 4504/2018**
## **PETITIONER'S/S EXHIBITS:**
**ANNEXURE 1 THE CERTIFIED COPY OF THE FIR IN CRIME NO. 870/2008 OF KOLLAM EAST POLICE. ANNEXURE 2 THE TRUE COPY OF THE MAHAZAR DATED 9/8/2008. ANNEXURE 3 THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 870/2008 KOLLAM EAST POLICE STATION.**
**ANNEXURE 4 THE TRUE COPIES OF THE SECTION 161 OF CR.PC STATEMENTS OF THE WITNESSES IN CRIME NO. 870/2008 KOLLAM EAST POLICE. ANNEXURE 5 THE RELEVANT PAGES OF PETITIONER'S PASSPORT EVIDENCES HER VISIT IN INDIA.**
## **RESPONDENTS' EXHIBITS:**
NIL
## **APPENDIX OF Crl.MC 6637/2018**
**PETITIONER'S/S EXHIBITS:**
**ANNEXURE A1 TRUE COPY OF THE CHARGE SHEET IN C.C.1315/08 [L.P.NO. 334/2014] OF THE JFCM II KOLLAM DATED 13/7/2008.**
**ANNEXURE A2 TRUE COPY OF THE FIR DATED 09/08/2008 IN CRIME NO. 870/2008 OF THE KOLLAM EAST POLICE STATION.**
## **RESPONDENTS' EXHIBITS:**
NIL
