(2015) 389 KLW 917
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 18TH DAY OF DECEMBER 2014/27TH AGRAHAYANA, 1936
Crl.MC.No. 4776 of 2014
AGAINST THE ORDER/JUDGMENT IN CRMP 1617/2012 of J.M.F.C.-I, ALUVA CRIME NO. 1500/2012 OF ALUVA EAST POLICE STATION , ERNAKULAM
PETITIONER(S)/ACCUSED
LAKSHMI PRATHAPAN
BY ADV. SRI.R.T.PRADEEP
RESPONDENT(S)
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR SRI.C.RASHEED
ORDER
The petitioner is the sole accused in Crime No.1500 of 2012 of Aluva East Police Station registered for offences under
Sections 119(1)(b) of Kerala Police Act, Section 66 E and 67 of the Information Technology Act and Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
The said crime has been registered on the basis of a compliant referred to the police for investigation as per the directions issued by the jurisdictional Magistrate by virtue of the enabling powers conferred under Section 156(3) of the Code of Criminal Procedure. The compliant is seen filed by the caretaker of Children's Home, Kakkanad, Ernakulam as per Crl.M.P No.935 of 2012 before the Judicial First Class Magistrate Court - Aluva on 05.06.2012. According to the complainant, she is the caretaker of the Children's Home, Kakkanad and the victim in Crime No.549 of 2011 of Varappuzha Police Station was staying in the said Children's Home and was brought to the Court for the purpose of test identification parade with respect to a suspected accused in that crime on 05.06.2012 at about 3:30 p.m. It is alleged in the complaint that the accused herein, who is the wife of the above said suspected accused in Crime No.549 of 2011 of Varappuzha Police Station, had taken the mobile photograph of the victim and that action should be taken for misusing the photograph. It is the case of the petitioner herein, who is the said accused in the instant Crime No.1500 of 2012 of Aluva East Police Station, that even if the allegations are accepted in toto, none of the alleged offences in the said crime will be attracted in the facts of this case. Annexure I is the complaint dated 05.06.2012 submitted by the caretaker before the Judicial First Class Magistrate Court - I, Aluva, which led to the registration of the impugned Annexure II FIR in Crime No.1500 of 2012 of Aluva East Police Station. It is in the light of these facts and circumstances that the petitioner herein has filed the instant Crl.M.C seeking the invocation of the inherent powers conferred on this Court as per Section 482 of the Cr.P.C with the prayer to quash the impugned Annexure II FIR in Crime No.1500 of 2012 of Aluva East Police Station and all further proceedings arising therefrom. During the pendency of the Crl.M.C, the police had completed the investigation and submitted Annexure IX final report/charge sheet filed in the impugned Annexure II Crime No.1500 of 2012 of Aluva East Police Station.
2. The petitioner had filed Crl.M.A No.10936 of 2014 in this Crl.M.C seeking appropriate amendments of the Crl.M.C and also seeking the amended prayer to quash the impugned Annexure IX final report/charge sheet filed in Annexure II Crime No.1500 of 2012 of Aluva East Police Station. Annexure IX final report/charge sheet dated 26.05.2014 has been filed by the police before the jurisdictional Magistrate concerned, stating that the mobile phone and its camera alleged to have used by the accused in the commission of the instant offences has been forwarded for Cyber Forensic Examination to the Forensic Science Laboratory concerned and that as soon as the report in that regard from the Forensic Science Laboratory is obtained by the police, the same would be submitted before the court. Accordingly, this Court had passed an order dated 05.11.2014 in this Crl.M.C directing the Forensic Science Laboratory, Thiruvananthapuram, to whom the mobile phone was sent for cyber forensic examination, to forthwith conduct and complete the cyber forensic examination of the article, without any further delay and send the report along with the mobile phone to the above said Magistrate Court dealing with the case in the instant crime and the Director of the Forensic Science Laboratory, Thiruvananthapuram was directed to ensure compliance of that order with the further direction that necessary report as directed above with the article reaches the above said Magistrate Court on or before 27.11.2014 with the necessary report of the Investigating Officer. When the case was taken up for consideration on 12.12.2014, the learned Public Prosecutor had made available to the court a copy of the cyber forensic analysis report dated 17.11.2014 filed in the instant crime by the State Forensic Science Laboratory, Thiruvanthapuram. The print out of the video pictures/photographs retrieved from the said mobile camera of the accused has also been incorporated along with the said cyber forensic analysis report. After meticulously perusing through all the printouts of such video clips/photographs retrieved from the camera, learned Public Prosecutor fairly submitted that none of these photographs would disclose the commission of any of the alleged offences involved in this crime. By order dated 12.12.2014, the prayer in Crl.M.A 10936 of 2014 for amendment of the Crl.M.C was also allowed. The amended Crl.M.C has also been filed by the petitioner today.
3. Sri.R.T.Pradeep, learned counsel for the petitioner, would submit that the cyber forensic examination report submitted by the Forensic Science Laboratory would clearly and conclusively show that none of the offences alleged in the instant crime would be made out in the instant case.
4. Heard Sri.R.T Pradeep, learned counsel appearing for the petitioner and learned Public Prosecutor appearing for the respondent State of Kerala.
5. The offences alleged in the impugned Anenxure IX final report/charge sheet are those under Section 119(1)(b) of the Kerala Police Act, Section 66 E and 67 of the Information Technology Act and Section 21 of the Juvenile Justice (Care & Protection of Children) Act, 2000.
6. Section 119(1)(b) of the Kerala Police Act reads as follows:
(1) Any person who, - (a) x x x
Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both."
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 extent to ten lakh rupees."
(1) No report in any newspaper, magazine, news- sheet or visual media of any inquiry regarding a juvenile in conflict with law under this act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile nor shall any picture of any such juvenile be published: Provided that for reasons to be recorded in writing the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile.
(2) Any person contravening the provisons of sub- section (1) shall be punishable with fine, which may extend to one thousand rupees."
9. Now that the impugned Annexure IX final report/charge sheet has already been filed and the cyber forensic examination report has also been made available, there is no necessity to go into the details of Annexure II FIR in the impugned Crime No.1500 of 2012 of Aluva East Police Station.
10. From a perusal of the cyber forensic examination report including the printouts of all the mobile pictures and photographs retrieved from the mobile camera seized from the accused, it is clear beyond any doubt that none of the offences alleged in the instant crime are made out. For attracting the offence under Section 66E of the Information Technology Act, there should be a specific case that the accused has intentionally or knowingly captured, published or transmitted the image of a private area of any person without his or her consent under the circumstances violating the privacy of that person etc. None of the photographs/video pictures now made available along with the impugned cyber forensic examination report make out any case or even having any remote relationship with the capturing, publishing or transmitting of the image of a private area of any person as conceived in Section 66E of the Information Technology Act. Printouts of various photographs/video pictures are given along with Annexure I of the cyber forensic analysis report dated 17.11.2014. The first photograph is pertaining to the photograph of a cake. The second and third photographs is in relation to the idol of Ganapathy and Sree Krishna. Next two innocuous photographs are of two little children. Some of the other photographs pertained to hazy pictures of persons who are sitting in car or standing near a building etc. Few other photographs are pertaining to plants and sceneries. Certain other photographs are in relation to artistic figures. None of the photographs have any remote bearing to affect the reasonable privacy of any person including a child or a woman. Therefore, it is clear that none of the offences under Section 66E is made out. Except the averment that the petitioner/accused had taken some photographs by using her own mobile camera, there is no averment anywhere in the impugned Annexure I compliant, Annexure II FIR or Annexure IX final report/charge sheet that the petitioner had intentionally or knowingly captured, published or transmitted the image of a private area of any person without his or her consent violating the privacy of that person as contemplated in Section 66E of the Information Technology Act. Section 67 is the provision for punishment in respect of the offence under Section 66E.
11. In view of the aforementioned facts emerging from the printouts of the photographs given in Annexure I of the impugned forensic cyber examination report, it cannot be said that the photographs or videos in the instant case has been taken in a manner affecting the reasonable privacy of woman as conceived in Section 119(1)(b) of the Kerala Police Act. Equally for the above said reasons the offence under Section 119(1)(b) of the Kerala Police Act also is not made out. Section 21 of the Juvenile Justice (Care & Protection of Children) Act, 2000 provides that no report in any newspaper, magazine, visual media etc. of any enquiry regarding a juvenile in conflict with law or with a child in need of care and protection of this Act shall disclose the name, address of school or any other particulars calculated to lead to the identification of the juvenile nor shall any picture of any such juvenile be published. There is no averment in the impugned Annexure I compliant, Annexure II FIR or the impugned Annexure IX final report/charge sheet that the accused has caused the publication of any photograph of the child in question in any manner as conceived in in Section 21(1) of the Juvenile Justice (Care & Protection of Children) Act. Equally there is no case made out in the said impugned criminal proceedings that the accused has caused the disclosure of the name, address of school or any other particulars of the child in question so as to lead the identification of the child as contemplated in Section 21(1) of the Juvenile Justice (Care & Protection of Children) Act. Therefore, the offence under Section 21 of the Juvenile Justice (Care & Protection of Children) Act is also not attracted in the facts of this case.
12. The Apex Court in the case
Gian Singh v. State of Punjab reported in 2013 (1) SCC (Cri) 160, para 61 = (2012) 10 SCC 303 = 2012 (4) KLT 108 (SC)
after surveying many decisions on the point, has categorically held that the inherent powers of the High Court conferred under Section 482 of the Code of Criminal Procedure is of wide plenitude with no statutory limitation and is to be exercised
In
Inder Mohan Goswasmi v. State of Uttaranchal reported in (2007) 12 SCC 1
the Apex Court has held that every High Court has the inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which the court exists or to prevent abuse of process of the court.
13. In the case
State of Haryana V Bhajan Lal reported in 1992 Supp(1) SCC 335 = AIR 1992 SC 604
the Supreme Court has held down the
various parameters for quashing the criminal complaints, as follows:
(1) Where the allegations made in the first information report or the complaint, even 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) 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.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
14. The aforementioned principles laid down by the Apex Court in the decisions as in Gian Singh 's case, Inder Mohan Goswasmi 's case and Bhajan Lal's case etc. could be fittingly applied in the facts and circumstances of this case. In view of the factual aspects stated above, even the Cyber Forensic Examination report now submitted by the Forensic Science Laboratory would clearly indicate that even after the completion of the investigation, the police has not been able to make out any case that any of the alleged offences in the instant case have been made out in the facts and circumstances of this case. Therefore, this Court has no hesitation to quash the impugned criminal proceedings.
15. In this view of the matter, Crl.M.C is allowed. Accordingly, the impugned Annexure IX final report/charge sheet filed in the impugned Annexure II FIR in Crime No.1500 of 2012 of Aluva East Police Station and all further proceedings arising therefrom on the file of the Judicial First Class Magistrate Court - I, Aluva stand quashed in the interest of justice.
16. Sri.R.T.Pradeep, learned counsel for the petitioner, would submit that appropriate directions may be given to the jurisdictional Magistrate to return the mobile phone seized from the petitioner. It is made clear that it is open to the petitioner to make appropriate application before the jurisdictional Magistrate in that regard and in the event of such application being filed, it is for the jurisdictional Magistrate concerned to pass appropriate order thereof in accordance with law.
The petitioner shall forward certified copies of this order to the Station House Officer, Aluva East Police Station, Aluva and to the Judicial First Class Magistrate Court - I, Aluva.