[Outraging the modesty of woman] “Words and gestures communicated through e-mails also falls within the ambit of S. 509 of IPC”: Bombay HC

Bombay High Court: In a criminal writ petition filed for quashing of a First Information Report (‘FIR’) registered by the Cyber cell for the offences punishable under Sections 354¹, 509² and 506(2)³ of the Penal Code, 1860 (‘IPC’), and Section 67 of the Information Technology Act, 2000 (‘IT Act’), the Division Bench of A.S. Gadkari and Dr. Neela Gokhale*, JJ. refused to quash the FIR and found that the accused had committed the offences punishable under Section 509 of IPC, and Section 67 of the IT Act. However, offences punishable under Sections 354 and 506(2) of IPC were deleted from the FIR. The Court further remanded the matter to the Trial Court and requested to expedite the trial, given the age of the complainant.

Background

The accused and the complainant were residents of the same building and had been acquainted with one another since 1980. The complainant’s mother had been the Chairperson of the Co-operative Housing Society (‘Society’) since 1942, and since she was old and unable to look after the affairs of the Society, the accused usurped her office without being elected, and began interfering in the Society’s works, despite receiving strong objections from other residents of the building.
The complainant contended that the accused had sent her a series of e-mails in 2009, that were worded in such manner that were obscene, vulgar, and of overtly sexual nature that outraged her modesty, and that he had also threatened to kill her in the e-mails. The e-mails had also been carbon copied (‘CC’ed’) to other residents of the buildings as well. Therefore, the complainant made a written complaint to the Cyber cell, a preliminary enquiry into which resulted in the registration of an FIR. Therefore, State had made a written complaint and an FIR against the accused.

Analysis and decision

Concerning the objection raised by the accused that the complainant’s FIR was not maintainable, as the FIR was a “second FIR”, the Court opined that there was no “second FIR” as the Police’s preliminary enquiry had concluded the commission of a cognizable offence, hence the impugned FIR was registered. Therefore, the FIR was maintainable without there being any irregularity or illegality in the same.

The Court perused the contents of the e-mails and noted the submission of the accused that the meaning of “utterance” under Section 509, IPC always indicates ‘verbal utterance’ and not a ‘written word’, therefore, an e-mail is not contemplated in the word “utterance”.

To this submission, the Court elucidated that the interpretation of a provision is related to the intent of the legislature, and said that “when the manner in which the mischief sought to be addressed by Section 509, IPC is to be determined, the Court is duty-bound to adopt an approach that provides a rational meaning to the language of the legislature”.

The Court added that the advent of modern technology had opened wide avenues of means to communicate an insult. Therefore, judicial interpretation must correspond to societal transformations and re-evaluate the legal principles to ensure fairness, justice and equity. The Court further said that the intention of legislature through Section 509 is to deter an action capable of shocking the sense of decency of a woman. The manner in which the offender shocks such sense of a woman is not restricted to oral abuse or gesture alone, but also include statements, speeches, exclamations, notes, all of which could be in a text form relayed whether physically or electronically.

The Court cited R v. Ireland⁴, wherein it was held that the rule of strict construction does not prevent the Court from interpreting a statute according to the contemporary times and applying the language to cover the developments in science and technology not known at the time of the making of the statute.

The Court referred to the amendment made by the State of Chhattisgarh to Section 509, IPC, wherein Section 509-B has been inserted, that made punishable the harassment of a woman by means of telecommunication device or other electronic mode including the internet.

The Court noted that no such amendment had been made in the State of Maharashtra and said that “penal statutes are known to be interpreted per the subject matter of the offence and the object of the law it seeks to achieve. Therefore, the word “utterance” must not be afforded a narrow interpretation, as that may result in exoneration from consequences”.

To substantiate, the Court referred to Emperor v. Tarak Das Gupta, 1925 SCC OnLine Bom 28, wherein a letter sent by post was included in the act of ‘exhibiting an object’ even if the letter was not sent by the accused himself, but through the agency of a post office. The Court further referred to Haries v. State of Kerala, 2005 SCC OnLine Ker 100, wherein it was held that a bunch of anonymous letters received by a woman containing offensive and foul words, outraging her modesty fell within the scope and ambit of the offence under Section 509, IPC.

Hence, the Court ratiocinating from the same, stated that words and gestures communicated through e-mails also fall within the ambit of Section 509 of IPC. The Court continued by stating that a plain reading of the content of all the e-mails clearly revealed a tirade by the accused against the complainant , her late husband, and her family. The following observations were made by the Court in respect of the impugned e-mails:

1. The complainant was referred to as ‘Bonnie’ which is neither and endearment nor an alias of hers, but a reference to the character of a famous referred to as ‘Bonnie’ which is neither and endearment nor an alias of hers, but a reference to the character of a famous movie referred to as ‘Bonnie’ which is neither and endearment nor an alias of hers, but a reference to the character of a famous movie- “Bonnie & Clyde”, that is centered around two criminals of those names, who commit a series of bank robberies, murders, and kidnappings. Thus, the intention of the accused by referring her as ‘Bonnie’ was to insult her.

2. The accused narrated in the e-mails, certain aspects of her life, insinuating that many respectable and distinguished members in the building had outcasted her, and she and her family had lost credibility in those members’ opinion. He further degraded her family to be made of crooks and beggars.

   The Court highlighted that the e-mails had been CC’ed to other members of the building the parties were resident of, and such act of the accused was intended to hurt, abuse, and insult complainant to an extent that was undoubtedly likely to outrage her modesty.

3. The expressions used in the e-mails, such as “even if she sat nude on the Nandgaon Bench, no one would pay attention to her opinion or view”, “fig leaf”, “full monty”, and “squatting in the nude”, in reference to complainant were likely to conjure up her images in the minds of the persons CC’ed. It seems the only and very intent of the accused was to degrade her and offend her dignity.

   The Court referred to Ramkripal v. State of M.P., (2007) 11 SCC 265, wherein the Supreme Court stated, “modesty in this Section (509 of IPC) is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.”

4. The e-mails and their sharing with third persons who complainant was likely to see frequently and without her consent, were an attack on her personal dignity. She had the right to be left alone and live her life in a dignified manner.

   The Court referred to K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, wherein the Supreme stated, “to live is to live with dignity…so fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III…right to privacy is an element of human dignity.”

   Therefore, the Court opined that the e-mails prima-facie were not only prone to outraging her modesty, but also intruded upon her privacy.

5. The expression “I like to take trouble dressing a corpse-a perfect undertaker they call me”, was not found to constitute a threat to cause death or grievous hurt.

In light of the above, the Court was not inclined to quash the FIR insofar as the offences punishable under Section 509 of IPC and Section 67 of the IT Act were concerned. However, the offences punishable under Sections 354 and 506(2) of IPC were deleted from the FIR. The Court, however, clarified that the observations (stated as above), were only on the correctness of the offences invoked in the FIR.

Lastly, the Court, noting that the complainant was now 80 years of age, requested the Trial Court to expedite the trial and concluded it within a year.

[Joseph Paul de Sousa v. State, 2024 SCC OnLine Bom 2719, decided on 21-08-2024]

*Judgment authored by: Dr. Justice Neela Gokhale

Advocates who appeared in this case :

For the petitioner: Haresh Jagtiani, Senior Advocate a/w Suprabh Jain, Pushpvijay Kanoji & Siddhesh Jadhav, Advocates; i/b Haresh Jagtiani & Associates

For the respondents: Vinod Chate, APP; Kushal More a/w Tanmay Karmakar, Roshan Chouhan, Advocates

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