The Single Bench of the Delhi High Court in the case of Sonu@Billa vs State, Through Sho, PS Paschim Vihar East consisting of Justice Swarana Kanta Sharma held that the act of the appellant peering into the bathroom while a woman was taking bath, which regrettably only had a curtain at the entry instead of a door, would amount to an invasion of privacy and unquestionably constitute a violation of Section 354C of IPC.
Facts:
This FIR was filed as a result of a complaint that was made in 2014. In the complaint, it was claimed that the appellant used to stare at the victim with sexual intent when she was sitting outside her home and that whenever the victim went inside to take a bath, the appellant would stand outside the bathroom under various excuses and peek inside. Additionally, it was said that he used to make derogatory comments, gestures, and statements against her. Additionally, it was claimed that one week prior to the FIR being filed, the victim was sitting on a chair outside her home when the appellant threw an iron wire ring at her, and when she objected, he made vulgar remarks to her.
Procedural History:
Due to the victim's complaint, the FIR was filed under Sections 354C/509 of the IPC and 12 of the POCSO Act. After the victim's statement was documented in accordance with Section 164 of the Criminal Procedure Code, the chargesheet was submitted in accordance with Sections 354C/509 of the IPC and 12 of the POCSO Act. The learned Trial Court framed the charges in accordance with Sections 354C and 354D of the IPC and Section 12 of the POCSO Act. The appellant was found guilty of violating Sections 354C of the IPC and 12 of the POCSO Act by the learned Trial Court following the conclusion of the evidence and hearing of the arguments. Hence this appeal.
Contentions Made:
Appellant: It was argued that the court had found the appellant guilty based on conjunctures and surmises. It was asserted that the learned Trial Court failed to recognize that the witness statements contained significant inconsistencies and were, as a result, unreliable. Additionally, it was claimed that the prosecution had failed to establish its case beyond a reasonable doubt. It was argued 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. Further, it was contended that Section 354C IPC did not apply because the victim's bathing was done in the street outside of the victim's jhuggi which was a public place. Therefore, it was stated that the impugned verdict must be set aside.
Observations of the Court:
The Bench referred to Section 354C of IPC which talked about Voyeurism, a sex crime against women in India by The Criminal Law (Amendment) Act, 2013. It noted that as per Explanation 1 to Section 354C which clarified the meaning of ‘private act’, it would include an act of watching committed by the offender in a location used by a woman/victim while she is performing a “private act,” where she reasonably expects privacy and where her genitalia, posterior, or breasts are exposed or covered only by underwear, or while she is using the restroom, or while performing a sexual act that is not typically performed in public, and she reasonably expects that she would not be observed, or when she authorizes the taking of the pictures or the doing of any act, but not the sharing of those things with others, and when those pictures or those things are shared.
It opined that even while the offense did not entail POCSO Act provisions, the mere apprehension of the petitioner, which could be subjective, could not serve as a basis for the transfer of cases to POCSO courts. All cases being tried for offenses u/s 376 IPC would thereafter be needed to be transferred to special courts handling POCSO and/or presided over by a woman judge as a result of this setting a precedent that would generate a chain reaction.
It did not agree with the contentions of learned counsel for the appellant as the same were contrary to the law. The argument that bathing cannot be deemed a "private act" since it was done in a public setting was held to be ludicrous and without foundation. Any individual taking a bath in a bathroom, whether a man or a woman, was effectively engaging in a "private act" because it was happening within the confines of the bathroom.
It noted that in this case, the victim was harassed by the appellant while going about her everyday business because he would peer inside the bathroom when she was taking a bath despite her “reasonable expectation” that she wouldn't be observed. A woman taking a bath in a locked bathroom cannot be compared to someone taking a sacred dip in a religious setting. Even in that scenario, it would be a “reasonable expectation” that no pictures or recordings of these women, even while they are taking a bath in such public areas, would be taken or produced. Even in such a situation, it would still be an invasion of her privacy, and no one has the right to take her photos, movies, etc. as provided for in Section 354C of IPC and the Explanation thereto.
As far as conviction u/s 12 of the POCSO Act was concerned, it was noted that the victim was adopted and that the parents had neglected to record any paperwork pertaining to the adoption as well as the child's birth or biological parents, leading this Court to believe that the victim was born on the day they had announced in the school where she was enrolled. No MCD certificate had been produced on file about the victim's date of birth, even though they claimed she was just 22–28 days old on the day of the adoption. As a result, the learned Trial Court erred by relying on a date of birth that, as per the victim's parents’ evidence, was based on assumptions.
Judgment:
The Bench held that the act, in this case, could not be equated to an act done in public places as the bathroom in question was a closed-covered structure. It concluded that the appellant's actions in this case were not just inconsiderate and impolite, but also violated the victim's privacy and would be considered criminal. It upheld the conviction u/s 354C of the IPC. It further held that the prosecution was not able to prove that the victim was less than 18 years of age at the time of the incident. Since the age of the victim could not be proved to be less than 18 years, the conviction of the appellant u/s 12 of the POCSO Act was set aside.
Case: Sonu@Billa vs State, Through Sho, Ps Paschim Vihar East
Citation: CRL.A. 22/2023 & CRL.M.(BAIL) 29/2023
Bench: Justice Swarana Kanta Sharma
Advocate for Appellant: Mr. Ashish Dahiya
Advocates for Respondent: Mr. Naresh Kumar Chahar, APP for the State with W/S Surbhi Aggarwal, P.S. Paschim Vihar East.
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