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2024. KHC:20179 CRL.P No.2396 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE10H DAY OF JUNE, 2024 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA CRIMINAL PETITION No.2396 OF2024BETWEEN: SRI. VEERABHADRA SWAMY S S/O LATE SHIVANNA, AGED ABOUT51YEARS, RESIDING NEAR NEW RAILWAY STATION, AA COLONY, SHIVMOGGA CITY, KARNATAKA-577202. …PETITIONER (BY SRI. JAYARAJ D S., ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY MAHILLA POLICE STATION, SHIVAMOGGA REP. BY ITS STATE PUBLIC PROSECUTOR, DR. AMBEDKAR VEEDHI, BENGALURU-560001.
2. SMT BHARATHI W/O SRI RAVINDRA AGED ABOUT53YEARS, RESIDING AT MALLIKARJUNA NILAYA, 7TH CROSS, NEAR SWAMY VIVEKANANDA SCHOOL RAVINDRA NAGAR, SHIVAMOGGA CITY KARNATAKA-577201. …RESPONDENTS (BY SRI. B.N. JAGADEESH, ADDL. SPP FOR R1) - 2 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS REGISTERED IN C.C.NO.82/2023 BY THE HONBLE COURT OF JMFC II AT SHIVAMOGGA FOR THE OFFENCE P/U/S.354-C,323,506 OF IPC1860AND ALSO U/S.66(E OF THE INFORMATION TECHONOLOGY ACT2000AS AGAINST THE ACCUSED PETITIONERS VIDE ANNEXURE A. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner is before this Court calling in question the proceedings in C.C.No.82/2023 registered for the offences punishable under Sections 354C, 323, 506 of IPC and Section 66(E) of the Information Technology Act, 2000.
2. Heard the learned counsel Sri.Jayaraj D.S., appearing for the petitioner and the learned Additional State Public Prosecutor Sri.B.N.Jagadeesh, appearing for respondent No.1.
3. Facts in brief germane are as follows: The second respondent is the complainant. A complaint comes to be registered against the petitioner accused alleging that the accused with intentions mala fide and motives ulterior - 3 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 placed a mobile phone inside the electric switch board situated in the hall of the premises belonging to the complainant and captured her private images and began to share the same with the in-laws of her son. This becomes the fulcrum of the complaint so registered on 09.01.2021. The complaint becomes a crime in Crime No.5/2021 for offences punishable under Sections 354C and 506 of IPC.
4. The police conduct investigation and filed a charge sheet in charge sheet No.70/2022 against the petitioner and the matter is now pending. Charge sheet is filed adding offences punishable under Section 323 of IPC and Section 66(E) of the Information Technology Act, 2000. The concerned court, on 21.01.2023 takes cognizance of the offences and registers C.C.No.82/2023 for the afore-quoted offences. Taking of cognizance and registration of criminal case is what has driven the petitioner to this Court in the subject petition.
5. The learned counsel appearing for the petitioner would contend that the complaint nowhere indicts the petitioner since the complaint alleges that the petitioner has kept the - 4 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 mobile phone in the electric switch board. It is his case that the mobile phone that is seized has no capacity to capture of images and the question of video recording does not arise at all. On this score alone, it is his submission that the proceedings are liable to be quashed. He would submit that none of the offences that are alleged would get attracted in the case at hand qua the facts. He would further submit that the crime registered in highly improbable and therefore, it should be quashed following the judgment of the Apex court in the case of State of Haryana vs Bajan Lal1.
6. Per contra, the learned Additional State Public Prosecutor would contend that all the contentions urged by the petitioner would become a matter of trial, as the offence punishable under Section 354(C) of IPC is clearly met in the case at hand. He would submit that it is for the petitioner to come out clean in the trial. 1 1992 Supp. (1) SCC335- 5 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 7. I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.
8. The afore-narrated facts forms the content of the complaint. The complaint leads to registration of crime in Crime No.5/2021 initially for two offences one 354C and the other 506 of IPC.
9. Since the entire issue has now triggered on account of registration of complaint, I deem it appropriate to notice the complaint. “(cid:1)ೆ: (cid:3)ನಂಕ:
09. 01-2021 (cid:7)ಾ(cid:9)ಾ(cid:10)(cid:11)ಾ(cid:12)ಗಳ(cid:15), ಸ(cid:17)ಳ: (cid:18)ವ(cid:20)ಗ(cid:21). ಮ(cid:23)(cid:24)ಾ (cid:25)(cid:26)ೕ(cid:28) (cid:7)ಾ(cid:9)ೆ, (cid:18)ವ(cid:20)ಗ(cid:21). ಇಂದ: (cid:31)ಾರ!, ಗಂಡ: ರ#ೕಂದ$, ವಯಸು’ ಸು(ಾರು 51 ವರುಷ, ಗೃ(cid:23)+, ,ಾಸ: ಮ(cid:26)-(cid:11)ಾಜು/ನ 0ಲಯ 2ಾ34 #,ೇ(cid:11)ಾನಂದ 5ಾ6ೆ ಹ!8ರ, ಏಳ:ೇ !ರುವ;, ರ#ೕಂದ$ ನಗರ, (cid:18)ವ(cid:20)ಗ(cid:21). Mobile:9538242377.-. 6 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 (ಾನ>?.ೇ: #ಷಯ: ನನ(cid:1)ೆ #ೕರಭದ$2ಾ34 ಎನುBವವರು ನನB CಾಸD Eತ$ವನುB E!$ೕಕ(cid:12)G, ಅದನುB ಎIJ (ಾI ಮತು8 #ೕIKವನುB Lೆ(cid:1)ೆದು, ನನB Mೕಗ(cid:12)(cid:1)ೆ ಕNG ನನB ಮOಾ/PೆಯನುB Lೆ(cid:1)ೆದು, ನನB Qೕವನ Rಾಳ(cid:15) (ಾI ನನ(cid:1)ೆ Qೕವ Sೆದ(cid:12)(cid:11)ೆ RಾTರುವನ Uೕ6ೆ ದೂರು. :ಾನು Uೕ6ೆ RೇNದ ,ಾಸದ(cid:26)- ಇದು, ಇಪXತು8 ವಷ/ದ (cid:23)ಂPೆ ನಮY ಮ:ೆ M(cid:26)Zಂ[ (cid:11)ೆಲಸ(cid:11)ೆ\ #ೕರಭದ$2ಾ34 ಎನುBವರು ಎ6ೆT].^ಯ_ ಆD ಬಂದು (cid:11)ೆಲಸ (ಾIರುLಾ8?.ೆ. ನಂತರ ನಮY ಮ:ೆಯ(cid:26)- ಸಲು(cid:1)ೆ ಇದb (cid:11)ಾರಣ, ನನB ಗಂಡ Rಾಗೂ ನನB dೊLೆ eೆ$ಂrê f (ಾI(cid:11)ೊಂಡು (ಾತ:ಾಡು!8ದbರು, ಆದ(cid:11)ಾರಣ, ಮ:ೆಯ(cid:26)- Oಾರು ಇಲ-(cid:3)Pಾbಗ ಬಂ(cid:3) ನನB dೊLೆ #ೕರಭದ$2ಾ34 (ಾತ:ಾಡು!8ದbರು. (cid:11)ೆಲವ; ವಷ/ಗಳ (cid:23)ಂPೆ, ನನ(cid:1)ೆ (cid:1)ೊ!8ಲ-ದ Rಾ(cid:1)ೆ #ೕರಭದ$2ಾ34 ನನB gೕhೋಗಳನುB Lೆ(cid:1)ೆಯುವ;ದು, ನನB #ೕIKೕಗಳನುB Lೆ(cid:1)ೆಯುವ;ದು, gೕhೋಗಳನುB ಮತು8 #ೕIKೕಗಳನುB ಎIJ (ಾಡುವ;ದು ಅದನುB ನನB ಸಂಬಂ(cid:10)ಕ(cid:12)(cid:1)ೆ ಕNಸುವ;ದು iಾ$ರಂjGದನು. ನಂತರ :ಾನು ಮ(cid:23)(cid:24)ಾ (cid:7)ಾ(cid:9)ೆಯ(cid:26)- ಈ (cid:23)ಂPೆ (cid:3):ಾಂಕ:
16. 02-2020 ರಂದು ದೂರನುB #ೕರಭದ$ 2ಾ34 ಅವರ #ರುದl (cid:11)ೊmnರುLೆ8ೕ:ೆ. (cid:7)ಾ(cid:9)ೆ(cid:1)ೆ Rಾಜ?.ಾD #ೕರಭದ$ 2ಾ34ಯವರು ಇನುB jÃwAiÀÄ ಮುಂPೆ ನನ(cid:1)ಾಗ(cid:26) ಕುಟುಂಬದವ(cid:12)(cid:1)ೆ Oಾವ;Pೇ Lೊಂದ?.ೆ 0ೕಡುವ;(cid:3)ಲ-. Oಾವ;Pೇ #pಾರವನುB Rೇಳ(cid:15)ವ;(cid:3)ಲ-. gೕhೋ #IKೕಗಳನುB Oಾ(cid:12)ಗೂ Lೋ(cid:12)ಸುವ;(cid:3)ಲ- ಎಂದು RೇN(cid:11)ೆ 0ೕಡುLಾ8?.ೆ. ಈಗ (cid:11)ೆಲವ; !ಂಗಳ (cid:23)ಂPೆ ನಮY ಮ:ೆಯ(cid:26)- (cid:11)ೆಲವ; ಮ:ೆಯ (cid:11)ೆಲಸ (ಾIGPಾಗ, #ೕರಭದ$ 2ಾ34 ಅವರ (cid:11)ೆಲಸ (ಾIGರುLಾ8?.ೆ ಆಗ, ಮLೆ8 #ೕರಭದ$ 2ಾ34ಯವರು ತನB (cid:11)ೆಟn ಬು(cid:3)lಯನುB ಉಪKೕDG, G3ಚುs Sೋಡು/ಗಳ(cid:26)- ##ಧ (cid:12)ೕ!ಯ ಎ6ೆ(cid:11)ಾ].0u ಐಟಂಗಳನುB ಇmnರುLಾ8:ೆ, ನಂತರ ನನB Rಾಗೂ ನನB ಗಂಡನ (ಾತು ಎಲ- (cid:11)ೇN (cid:11)ೊಂಡು, ಮLೆ8 ನನB CಾಸD gೕhೋಗಳನುB Lೆ(cid:1)ೆದು (cid:11)ೊಂIರುLಾ8:ೆ, D Lೆ(cid:1)ೆ(cid:3)ರುವಂತಹ gೕhೊಗಳನುB ನಮY Uೖಸೂ(cid:12)ನ Mೕಗ?.ಾದ (cid:18),ಾQ ?.ಾx ಅವ(cid:12)(cid:1)ೆ ಕNGರುLಾ8:ೆ. ಈಗ ನನB ಮತು8 ನನB ಗಂಡನ ಮಧ> j:ಾBjiಾ$ಯವನುB ಉಂಟು(ಾI (cid:23)ಂ2ೆಯನುB (cid:11)ೊಡು!8Pಾb:ೆ. (cid:3):ಾಂಕ:08-01-2021 ರಂದು, ಸಂdೆ ಸು(ಾರು 06.00 ಗಂhೆ(cid:1)ೆ, :ಾನು ನನB ರ#ೕಂದ$ ನಗರದ ಮ:ೆಯ(cid:26)-Pಾbಗ, #ೕರಭದ$2ಾ34 ನಮY ಮ:ೆ(cid:1)ೆ ಬಂದು ನನ(cid:1)ೆ :ಾನು ಏ:ಾದರೂ (cid:25)(cid:26)ೕಸರ ಬN Rೋದ?.ೆ ನನBನುB Qೕವ ಸ(cid:23)ತ Mಡುವ;(cid:3)ಲ- ಎಂದು ಕೂಡ Rೆದ(cid:12)GರುLಾ8:ೆ. :ಾನು ತಮY(cid:26)- (cid:11)ೇN(cid:11)ೊಳ(cid:15)yವ;Pೇ:ೆಂದ?.ೆ, #ೕರಭದ$2ಾ34 ನನB CಾಸD Eತ$ವನುB E!$ೕಕ(cid:12)G, ಅದನುB ಎIJ (ಾI ಮತು8 #ೕIKವನುB Lೆ(cid:1)ೆದು, ನನB Mೕಗ(cid:12)(cid:1)ೆ ಕNG - 7 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 ನನB ಮOಾ/PೆಯನುB Lೆ(cid:1)ೆದು, ನನB Qೕವನ Rಾಳ(cid:15) (ಾI ನನ(cid:1)ೆ Qೕವ Sೆದ(cid:12)(cid:11)ೆ RಾTರುವನ Uೕ6ೆ (cid:11)ಾನೂನು ಕ$ಮ Lೆ(cid:1)ೆದು(cid:11)ೊಳySೇಕು ಎಂದು ಮನ#.
10. The police after investigation filed a charge sheet. Summary of the charge sheet reads as follows: “17. (cid:11)ೇGನ ಸಂzಪ8 2ಾ?.ಾಂಶ 2ಾz 01ರವರು (cid:18)ವ(cid:20)ಗ(cid:21)ದ ಜು>,ೆ| ?.ಾu ರ2ೆ8ಯ(cid:26), (cid:11)ಾಂiೆ-u’, ಕಟುn,ಾಗ 1:ೇ ಆ?.ೋ}ಯು ಎ6ೆQÖçಕ| (cid:11)ೆಲಸ (ಾಡಲು ಬಂ(cid:3)ದುb ನಂತರ 2ಾz 01ರವ(cid:12)(cid:1)ೆ 1:ೇ ಆ?.ೋ}ಯು ಪ(cid:12)ಚಯ,ಾD2Bೕ(cid:23)ತ?.ಾDರುLಾ8?.ೆ, 2ಾz 01 ಮತು8 01:ೇ ಆ?.ೋ}ಯು 5 ವಷ/ಗಳ 2ೆBೕ(cid:23)ತ?.ಾDದುb, 1:ೇ ಆ?.ೋ}ಯು ಪ(cid:12)ಚಯ,ಾದ ಐದು ವಷ/ಗಳ ನಂತರ 2ಾz 01ರವ(cid:12)(cid:1)ೆ }$ೕ!ಸುವ;PಾD !NGದುb, 2ಾz01ರವರು 0?.ಾಕ(cid:12)Gದb(cid:11)ೆ\ 2ಾz 01ರವರ (cid:25)ೕhೋ ಮತು8 ಎIJ (ಾIದ ಅ(cid:18)-ೕಲ gೕhೋಗಳನುB2z 01ರವರ ಸಂಬಂ(cid:10)ಕ(cid:12)(cid:1)ೆ ಕಳ(cid:15)(cid:23)ಸುವ;PಾD1ೇ ಆ?.ೋ}ಯು Sೆದ(cid:12)(cid:11)ೆ RಾTರುLಾ8?.ೆ. 1:ೇ ಆ?.ೋ}ಯು 2ಾz 01ರವರನುB eಾ6ೋx (ಾಡುವ;ದು, ಕ?.ೆದ ಕ~ೆಗ(cid:24)ೆ6ಾ- ಬರುವಂLೆ Sಾ-u Uೕ| (ಾI QೕವSೆದ(cid:12)(cid:11)ೆ RಾT (cid:11)ೈ(cid:127)ಂದ Rೊ~ೆ(cid:3)ರುLಾ8?.ೆ, 2ಾz 01ರವರ ಆ?.ೋಗ>ವ; ಹದ(cid:1)ೆmnರುvÀÛPೆ, 2ಾz 01ರವರು ತಮY ಕುಟುಂಬದವ?.ೊಂ(cid:3)(cid:1)ೆ (cid:1)ೋ,ಾ(cid:11)ೆ\ RೋPಾಗ 1:ೇ ಆ?.ೋ}ಯು ತನB ಮತು8 2ಾz 01ರವರ ಅ(cid:18)-ೕಲ (cid:25)ೕhೋಗಳನುB2z 01ರವರ ಸಂಬಂ(cid:10)ಕ(cid:12)(cid:1)ೆ Rಾಗೂ 2ಾz 01ರವರ 2ೊ2ೆ(cid:1)ೆ ಕಳ(cid:15)(cid:23)G (cid:11)ೆಟnPಾD RೇNರುLಾ8?.ೆ. ಆದ(cid:11)ಾರಣ 1:ೇ ಆ?.ೋ}ಯ #ರುದl ಕಲಂ.354(G), 323, 506 L¦¹ ºÁUÀÆ PÀ®A66E) Ln DPïÖ CrAiÀÄ°è ¸À°è¸À¯ÁzÀ zÆÉ ÃµÁgÉÆÃ¥ÀuÁ ¥ÀnÖ.
11. If the complaint and the summary of the charge sheet are read in tandem, it would prima facie lead to the ingredients of Section 354C of IPC. Section 354C of IPC reads as follows: - 8 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 “354C. Voyeurism.—Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.” Section 354C of IPC deals with Voyeurism. Voyeurism has certain ingredients. Any man who watches, captures the images of a woman engaging in a private act would be committing an offence of voyeurism. Explanation would read, the private act to be including an act of watching carried out in a place, where it would reasonably expected to provide privacy, which reads as follows: “Explanation 1.- For the purpose of this section. “Private Act” includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear.” - 9 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 Therefore, the allegation against the petitioner is that he has indulged in placing a mobile phone in or inside or above the electric switch board to record the videos or the pictures of the complainant. The Police have filed the charge sheet after investigation.
12. The learned counsel appearing for the petitioner would seek to contend that the mobile phone seized cannot even take pictures or record videos. It is a matter of evidence, as in the considered view of the Court Section 354C of IPC, which has come into force by way of an amendment in the year 2013, as a purpose for introduction of the said provision. The High Court of Delhi in the case of Sonu vs State, through SHO reported in 2023 SCC Online Del 1955, considering the purport of Section 354C of IPC has held as follows “…. … …. SECTION354 OF IPC. VOYEURISM : ANALYSIS AND FINDINGS10 Voyeurism has been introduced as a sex crime against women in India by way of The Criminal Law (Amendment) Act, 2013. Since the appellant has been - 10 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 convicted and sentenced inter alia under Section 354C of IPC, it would be appurtenant to refer to the said provision, which is reproduced as under: “354C. Voyeurism.-Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine. Explanation 1.-For the purpose of this section, “private act” includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public. Explanation 2.-Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.” (Emphasis supplied) 11. Explanation 1 to Section 354C clarifies the meaning of ‘private act’. When the definition of voyeurism is read alongwith the explanation, it would include within its ambit, an act of watching carried out by the perpetrator in a place used by a woman/victim where she - 11 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 is engaged in a ‘private act’ which, in the circumstances, would reasonably be expected by her to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear, or where she is using a lavatory, or where she is doing a sexual act that is not of a kind ordinarily done in public, and she has reasonable expectation that she would not be observed by the perpetrator or any other person at behest of the perpetrator; or where she consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated.
12. Learned counsel for the appellant had two-fold arguments, firstly that it is an admitted fact that the appellant stays in the jhuggi next to the jhuggi of the victim. Since the bathroom was situated in the common area outside their jhuggies, he could not have been convicted for voyeurism as he was merely standing outside his house which was his right. Secondly, it was argued that in the present case, the bathroom used by the victim being situated at a common public place cannot be termed as a private area but a public place and thus the act of bathing at such ‘public place’ cannot be held to be a ‘private act’. He argues that in case, this Court holds to the contrary, in that case, several thousands of persons can be prosecuted merely for their presence at public places such as water parks, swimming pools, lakes, ponds or even while taking bath in rivers at religious places.
13. This Court, however, does not agree with the aforesaid contentions of learned counsel for the appellant as the same are contrary to law and cannot be interpreted in the way he argues. (i) Private Act v. Public Act 14. As regards the first argument advanced by the learned counsel for appellant, it is to be noted that the bathroom in question was situated in an open area, but it was not an open public place as suggested by learned counsel for appellant. It is clear from the statements of - 12 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 the witnesses that the bathroom had small walls and a curtain used to be drawn at the time of taking bath by the victim. The contention that the act of taking bath cannot be considered a ‘private act’ as it was being done in a public place is not only meritless but also absurd. Taking bath in a bathroom by any person, whether a male or a female, is essentially a ‘private act’ as it is taking place inside the four walls of the bathroom.
15. In the present case, though, it is true that the bathroom was constructed outside the jhuggi of the victim at a public place, but it constituted of a covered four walled structure being used as a bathroom. The entrance of the bathroom used to be covered with a curtain at the time of taking bath, therefore, it cannot be held that the bathroom was a open public place. Similarly, there can be no doubt that the woman taking bath therein will be considered to be engaged in a ‘private act’ of taking bath and having reasonable expectation of not being seen by anyone.
16. The argument of the learned counsel for the appellant that the act of taking bath by the victim in the present case, instead of being a ‘private act’ became a ‘public act’ is totally meritless. Merely because a structure which is being used as bathroom by a woman does not have a door but only a curtain and temporary walls and it is situated outside her house does not make it a public place and the contention that the act of taking bath by the victim became a ‘public act’ instead of being a ‘private act’ for the said reason has to be outrightly rejected. It will also amount to holding that in case a woman takes bath in the bathroom inside her house, it remains a ‘private act’ and if she takes bath in a covered bathroom which is outside her house, will become a ‘public act’, which will be irrational. This Court therefore holds that the bathroom in question in this case was not a public place and the act of taking bath therein was a ‘private act’.” - 13 - NC:
2024. KHC:20179 CRL.P No.2396 of 2024 13. If the facts obtaining in the case at hand are considered on the bedrock of what voyeurism is, it would become matter of trial for the petitioner to come out clean, not only for offence under Section 354C of IPC but even for other offences so alleged.
14. Finding no merit, the petition is dismissed. Sd/- JUDGE KG List No.:
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9.