BASHEER Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners herein are the accused in C.C.No.310/2008 before the Judicial First Class Magistrate Court II, Mananthavady, wherein the offence punishable under Sec. 509 IPC is alleged by the prosecution. Crime No.223/2007 which led to the final report in the said case, was registered in the Kalpetta Police Station in Wayanad district, on a complaint made by the 2 nd respondent herein. She had worked for some time as commission agent under the petitioners herein, for the circulation and promotion of a students magazine by name 'School Master'. Alleging insult and mental harassment the 2 nd respondent filed Annexure A2 complaint against the petitioners before the police on 12/12/2007. It is alleged in the Annexure A2 complaint that on a previous occasion she had even made an attempt to commit suicide due to the insult and defamatory words made by the petitioners herein. When they continued such acts she filed the complaint. On the said complaint the police registered crime under Sec. 509 IPC. After investigation, final report was submitted before the Court of the learned Magistrate, and it was taken on file as C.C.No.320/2008. The application filed by the petitioners for discharge as C.M.P No.2381/2009 was dismissed by the learned Magistrate on 19/8/2009. Annexure A3 is the said order. Though the petitioners preferred revision before the Court of Sessions, Wayanad, they could not obtain order of discharge. Crl.R.P.25/2009 was dismissed by the learned Sessions Judge by order dtd. 23/11/2009. Annexure A4 is the said order. Now the petitioners seek an order from this Court under Sec. 482 Cr.P.C quashing the prosecution on the ground that the said prosecution, on the basis of a First Information Statement which does not contain the essential elements of the offence under Sec. 509 IPC, is nothing but abuse of legal and judicial process.

(2.) On a perusal of Annexure A2 complaint and the appended final report, I find that crime in this case under Sec. 509 IPC was wrongly registered by the police. The 2 nd respondent has a grievance that the petitioners had published some notice against her containing false allegations. In Annexure A2 complaint her main grievance is that the petitioners had published some notice or news insulting or defaming her. In the said notice the petitioners have alleged misappropriation of amounts by her, while acting as commission agent. The complaint also alleges that on 10/7/2007 one of the petitioners had made an attempt to molest her, and regarding the said incident another prosecution is pending. The allegations in Annexure A2 complaint are general, that the petitioners had published some notice or spread some news defaming her and insulting her. On such a complaint or allegation a crime under Sec. 509 IPC cannot be registered.

(3.) The learned Magistrate, and also the learned Sessions Judge erred in law to find that this prosecution can proceed under Sec. 509 IPC. Mere insult will not attract Sec. 509 IPC. For a prosecution under Sec. 509 IPC there must be a definite allegation of insult to the modesty of woman or intrusion into the privacy of woman. Thus the allegation must involve modesty of woman or privacy of woman. Mere insult or false allegation will not attract a prosecution under Sec. 509 IPC. In Annexure A2 complaint the 2 nd respondent does not have a case that the petitioners herein had insulted her modesty as a woman, or that they had intruded into her privacy in any manner. If at all the petitioners had spread or published any insulting and defamatory matters, she can initiate prosecution for defamation under Sec. 500 IPC, provided, the allegations would come under the definition of defamation under Sec. 499 IPC. Any way mere insult or insulting words, or abuse will not attract a prosecution under Sec. 509 IPC. In this case there is absolutely nothing in the complaint preferred by the 2 nd respondent, or in the final report submitted by the police to indicate that the petitioners had in any manner insulted her modesty or intruded into her privacy. Merely insulting a woman is different from insulting the modesty of woman. The subject of insult for a prosecution under Sec. 509 IPC must be the modesty of woman and not the woman as such. When there is nothing to make out the essential elements of the offence under Sec. 509 IPC, the prosecution against the petitioners cannot proceed under the law. I find that the present prosecution is an abuse of legal and judicial process. If at all the 2 nd respondent has a grievance or complaint that the petitioners herein had made or published any defamatory material against her alleging misappropriation of amount, she will have to pursue appropriate remedy, if at all such allegations would constitute the offence of defamation. The present prosecution cannot proceed because the complaint does not contain the essential elements or ingredients of the offence under Sec. 509 IPC.