SREEKUMAR V. v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941 Bail Appl..No. 2151 of 2019** **(CRIME NO.468 OF 2019 OF MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM** ) ## **PETITIONER/ACCUSED:** **SREEKUMAR.V. AGED 50 YEARS, S/O.VARADHARAJAN NIAR, LEELA SADANAM, ISTHANA ROAD, AMABALAPUZHA, P.O.ALAPPUZHA, ALAPPUZHA DISTRICT-688561.** **BY ADV. SRI.SIRAJ KAROLY** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **-:2:-** BA 2151/19 **(CR)** ## **ALEXANDER THOMAS, J. ------------------------------------------** ## **B.A. No.2151 of 2019 ------------------------------------------** ## **Dated this the 3[rd] day of April, 2019** ## **ORDER** Petitioner is the sole accused in Crime No.468 of 2019 of Medical College Police Station, Thiruvananthapuram, which has been registered for the offences punishable under Section 509 of the IPC, Section 67 of the Information Technology Act, 2000 and Section 120(o) of the Kerala Police Act, 2011. 2. The brief of the prosecution case is that the lady de facto complainant in this case is an Assistant Professor of Law and also a media person and that with the intention to insult the womanhood and the reputation of the lady de facto complainant and to cause mental distress on the lady de facto complainant, the petitioner (accused) had made postings in her Facebook account, which has the effect of raising lascivious interest on the people who sees it and has also sent obscene messages to insult her womanhood by making such postings in her Facebook account. 3. The learned counsel appearing for the petitioner would submit that indisputably the offences under Section 509 of the IPC BA 2151/19 ## **-:3:-** and Section 120(o) of the Kerala Police Act, 2011 are bailable offences and further that going by the nature of the factual allegations raised in the first information statement, the offence under Section 67 of the Information Technology Act, 2000 is not disclosed. 4. Per contra, the learned Public Prosecutor points out that the contentions of the petitioner that no offence is made out in terms of Section 67 of the Information Technology Act, 2000 is untenable. 5. After hearing both sides, it appears that the lady de facto complainant and her husband are activists of the ruling party CPI(M) and on the day prior to the incident in question, the petitioner’s husband had participated in television channel discussion on the correctness or otherwise of the Apex Court’s judgment on the right of women devotees of menstrual age to enter and worship in the Sabarimala Temple, wherein the de facto complainant’s husband has taken a very strong stand that the judgment of the Apex Court is legally correct and that it has to be complied with in letter and spirit. It appears that the petitioner ardently believes that the tradition should not permit women of menstrual age to visit the Sabarimala Temple, and that it cannot be interfered with by the judicial courses and is quite irritated and annoyed by the specific stand taken by the lady de facto complainant’s husband and thereupon he had made BA 2151/19 ## **-:4:-** some postings in the Facebook account of the lade de facto complainant describing her husband in highly abusive and unparliamentary and unprintable words. A photocopy of the said Facebook account and making of other disparaging remarks that for issues relating to the faith of the people who followed Hindu religion, the views of the de facto complainant’s husband, is unnecessary etc. Presumably the said comment has been made by the petitioner accused as the lady de facto complainant’s husband, is a Muslim. It further appears that the lady de facto complainant is a Hindu. The abusive and unprintable words used against the de facto complainant’s husband is something analogous to the word “son of a bitch etc.” though the Malayalam word is not the exact corresponding word to the above said English word and has the effect of degrading and abusing womanhood and motherhood. 6. It is beyond any dispute that the offences under Section 509 of the IPC, 120(o) of the Kerala Police Act, 2011 are bailable offences. Section 67 of the Information Technology Act, 2000 reads as follows: > “67. **Punishment for publishing or transmitting obscene material in electronic form** -Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.” **-:5:-** BA 2151/19 7. Section 67 of the Information Technology Act, 2000 postulates that there should be publication or transmission in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it etc. The substantial ingredients of Section 67 of the Information Technology Act, 2000 has broad resonance to the provisions contained in Section 294 and 292(1) of the IPC, which deals with the concept of obscenity, reads as follows: - “ **294.Obscene acts and songs** -Whoever, to the annoyance of others(a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both” **“292. Sale, etc., of obscene books, etc** .-[(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” ## 8. It has been held in a catena of decisions including that of this Court in **Latheef v. State of Kerala** (2014 (2) KLT 987) that abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined in Section 292(1) of the IPC and BA 2151/19 ## **-:6:-** that even if the words alleged to have been used by the accused are in fact abusive and humiliating. But in order to make it obscene punishable under Section 294(b) I.P.C., it must satisfy the definition of obscenity as envisaged in Section 292(1) of the I.P.C. In the definition of obscenity under 292(1) I.P.C. , the words used must be in a sense lascivious or it must appeal to the prurient interest or will deprave and corrupt persons (See decision of this Court in **P.T.Chacko v. Nainan Chacko** (1967 KLT 799). Further it has been held by this court that the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences. In **Sangeetha Lakshmana v. State of Kerala** (2008 (2) KLT 745) this court has held that in order to satisfy the test of obscenity, the words alleged to have been uttered must be capable of arousing sexually impure thoughts in the minds of its hearers. To make obscene, the alleged words must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons, and defiling morals by sex appeal or lustful desires. It will be profitable to refer to paragraph 5 of the decision of this court in **Latheef v. State of Kerala** (2014 (2) KLT 987), which reads as follows: **-:7:-** BA 2151/19 “5. Abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined under the law. Of course there is no doubt that the words alleged to have been used by the revision petitioner are in fact abusive and humiliating. But to make it obscene, punishable under S.294(b) I.P.C., it must satisfy the definition of obscenity. S.294 I.P.C. does not define obscenity. Being a continuation of the subject dealt with under S. 292 I.P.C. the definition of obscenity under 292(1) I.P.C. can be applied in a prosecution under S.294 I.P.C. also. To make punishable, the alleged words must be in a sense lascivious, or it must appeal to the prurient interest, or will deprave and corrupt persons. In _P.T.Chacko v. Nainan Chacko reported in_ (1967 KLT 799) this Court held that, “the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.” In _Sangeetha Lakshmana v. State of Kerala_ reported in (2008 (2) KLT 745) this court held thus, “in order to satisfy the test of obscenity, the words alleged to have been uttered must be capable of arousing sexually impure thoughts in the minds of its hearers.” Thus it is quite clear that, to make obscene the alleged words must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons, and defiling morals by sex appeal or lustful desires. I find that the words alleged to have been used by the revision petitioner in this case are really abusive and humiliating, but those words cannot be said to be obscene. As already stated, every abusive word or every humiliating word cannot, by itself, be said to be obscene as defined under the Indian penal Code. I find that the conviction against the revision petitioner under S.294(b) I.P.C. in this case, on the basis of the above words alleged to have been used by him, is liable to be set aside, and the revision petitioner is entitled to be acquitted.” ## 9. Thus it can be seen that the elements of obscenity as referred to in section 294 of the IPC has to be understood from the definition of obscenity as made out in Section 292 (1) of the IPC. A comparison of the relevant wordings in Section 292(1) and Section 67 of the Information Technology Act, 2000 would make out it clear that in order to make the publication or transmission or causing of publication or transmission in the electronic form to be brought within the contours of Section 67 of the Information Technology Act, 2000, should be one which tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or **-:8:-** BA 2151/19 hear the matter contained or embodied in it etc., as aforestated. 10. Therefore, the semantic contents contained in Section 67 of the Information Technology Act, 2000 is broadly in consonance with the one as envisaged in Section 294 as well as Sec.292(1) of the IPC. In other words, publication and transmission in the electronic form as referred to in Section 67 of the Information Technology Act, 2000 should be one which must be capable of arousing sexual thoughts in the minds of hearers and in order to make it obscene, the alleged words must involve some lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons, and defiling morals by sex appeal or lustful desires etc. Even if the words are extremely unparliamentary, unprintable and abusive in nature, so long as the words in question are not one capable of arousing sexual thoughts in the minds of the hearers and does not involve lascivious elements arousing sexual thoughts or feelings or the words must have the effect of depraving persons, and defiling morals by sex appeal or lustful desires etc., it cannot be brought within the broad contours of the penal provisions as contained in Sections 294 and 292 of the IPC corresponding to Section 67 of the Information Technology Act, 2000. This Court is constrained to enter into this arena only because the petitioner has BA 2151/19 ## **-:9:-** raised a specific contention regarding the offence under Section 67 of the Information technology Act, 2000 and the respondent State has taken a definite stand that the impugned publication in the Facebook page would certainly come within the broad contours of Section 67 of the Information Technology Act, 2000. However, this Court has cautioned itself that what is under consideration is an application for pre-arrest bail. In matters of this nature, this Court shall also have to bear in mind the crucial aspect that this Court is a statutory court while exercising powers under provisions as in Sections 438 or 439 of the Cr.P.C. in the matter of grant of anticipatory bail or regular bail etc., unlike the provisions contained in the extra ordinary powers conferred in provisions as in Articles 226, or 227 of the Constitution of India or Section 482 of the Cr.P.C. This court while exercising its powers as a statutory court in terms of provisions contained in Sections 438 and 439, has necessarily to consider contentions of this nature. However, since the present proceedings are only in the matter of grant of anticipatory bail and the very legality and correctness of the criminal proceedings are not directly challenged in a proceedings of this nature, it may not be appropriate for this Court to enter into more areas of the matter and it will be better to leave such matters in the zone of silence, to be left open to be decided in **-:10:-** BA 2151/19 other appropriate proceedings. 11. But before parting with this case, this Court is constrained to take note of certain disturbing trends in our society and community whereby incidents of intolerance and disrespect for the views of others and the respect and harmony for “others” is decreasing day by day which has very dangerous portents for the future of our civil society and democratic polity at large. It appears that the petitioner does not even have any personal acquaintance with the lady de facto complainant or her husband. Instances of this has exponentially increased due to the exclusive and addictive use of social media in our current times which may perhaps be a passing phenomena and this court would only hope and expect that there will certainly be light at the end of the tunnel and that instances of such intolerance will give way to respect of the views of “others” so that one should realise that the “other” is nothing but part of “oneself” and that we are all one in this long adventurous journey of comprehensive realisation of “ourselves” in the true sense. 11. After hearing both sides, this Court is constrained to take the view that testing facts of this case in the light of the provisions contained in Section 67 of the Information Technology Act, 2000 it has to be held that the custodial interrogation of the petitioner may BA 2151/19 ## **-:11:-** not really be warranted and called for in the facts and circumstances of this case. However, it is made clear that the above said findings and observations made by this court is only in the limited context of the issues raised in the present proceedings. The findings of this Court in this application shall not in any manner influence or fetter the contentions on other side in other proceedings in respect of the very same crime. In the light of the above said view taken by this Court, this Court is inclined to order the grant of anticipatory bail to the petitioner but subject to the following conditions. (i) The petitioner will personally appear before the Investigating Officer in relation to Crime No.468 of 2019 of Medical College Police Station for interrogation purposes at 10 a.m. on or before 10.5.2019 to subject himself for interrogation. (ii) Petitioner will fully co-operate with the Investigating officer in the above interrogation process. (iii) The Investigating Officer will conduct the interrogation on the same day. If the interrogation process is not completed on the same day, the Investigating Officer will be at liberty to direct the petitioner to appear before him for further interrogation on the next day or any day fixed by him, which the petitioner has to comply with. (iv) After completing the above interrogation process in relation to Crime No.468 of 2019 , in case the Investigating Officer records the arrest of the petitioner, then the petitioner shall be released on bail on his executing a bond for Rs.40,000/- (Rupees Forty thousand only) and on furnishing two solvent sureties each for the like sum to the satisfaction of the Investigating Officer concerned. Further it is also ordered that it will be subject to following conditions:- **-:12:-** BA 2151/19 - _(a) The petitioner shall not involve in any criminal offences of similar nature._ - _(b) The petitioner shall fully co-operate with the investigation._ - _(c) The petitioner shall report before the investigating officer as and when required in that connection._ - _(d) The petitioner shall not influence witnesses or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _(e) The petitioner shall not go anywhere near the residence or workplace of the lady de facto complainant or her husband until the conclusion of the trial._ - _(f) Until the conclusion of the trial, the petitioner shall not have any access to the Facebook page or other social media accounts like whatsapp, SMS, mobile phone conversation etc. with the lady de facto complainant or her husband._ - _(g) The petitioner will file an affidavit before the Investigating Officer undertaking that he will not enter into the Facebook account or any other social media accounts like Whatsapp etc. of the lady de facto complainant or her husband so as to make any postings there and that he will not make any disparaging comments or comments of the above said nature as against the lady de facto complainant or her husband in any social media or such other media until the conclusion of the trial._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned will stand hereby authorised, to consider the plea for cancellation of bail, if required, in accordance with law. 12. The learned prosecutor has pointed out that it is revealed that the petitioner had deleted certain postings in the face book **-:13:-** BA 2151/19 account of the lady de facto complainant and so she could not retrieve it and so it is highly necessary to have comprehensive investigation as to the contents of those deleted postings made by the petitioner to ascertain whether it will amount to any criminal offences and that the petitioner should co-operate with Investigating Officer in that regard. It is made clear that the above order is made only in the light of the limited factual matters presented before this Court and nothing in this order, will preclude the investigating agency to make comprehensive investigation into all aspects of the matter and needless to say, the petitioner will have to fully co-operate with such investigative endeavours. With these observations and directions, the above Bail Application stands disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vps