Kerala High Court
Fakrudeen K.V @ Fakrudeen Panthavoor vs State Of Kerala on 25 March, 2025
Criminal Appeal No.842 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
CRL.A NO. 842 OF 2024
CRIME NO.251/2024 OF INFOPARK POLICE STATION, ERNAKULAM.
AGAINST THE ORDER DATED 16.05.2024 IN CRL.M.C.NO.1407
OF 2024 ON THE FILE OF THE COURT OF SESSION, ERNAKULAM.
APPELLANT(S)/ACCUSED:
FAKRUDEEN K.V. @ FAKRUDEEN PANTHAVOOR,
AGED 45 YEARS,
S/O. KUNHUMUHAMMAD,
KALLIKATUVALAPPIL HOUSE, PANTHAVOOR,
ALAMCODE, MALAPPURAM DISTRICT,
PIN - 679 585.
BY ADVS.
K.ABOOBACKER SIDHEEQUE
MUHAMMED IBRAHIM ABDUL SAMAD
SUBIN K SUDHEER
RESPONDENT(S)/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM DISTRICT,
PIN - 682 031.
2 XXXX
XXXXX
PIN - 682 030.
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BY ADVS.
K.NANDINI -R2
SRI.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17.03.2025, THE COURT ON 25.03.2025 DELIVERED THE FOLLOWING:
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"C.R."
C.S.SUDHA, J.
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Criminal Appeal No.842 of 2024
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Dated this the 25th day of March 2025
JUDGMENT
This appeal under Section 14A of the Scheduled Castes &
the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act)
has been filed by the petitioner/accused in crime no.251/2024,
Infopark police station, Ernakulam, aggrieved by the dismissal of
his petition under Section 438 Cr.P.C., namely,
Crl.M.C.No.1407/2024, on the file of the Court of Session,
Ernakulam, seeking pre-arrest bail.
2. It was submitted by the learned counsel for the
appellant/accused that the materials on record do not make out any
offence(s) under the Act. The appellant/accused has never referred
to or mentioned the caste name of the 2 nd respondent/informant in
the video uploaded by him. Relying on the dictum in Hitesh Verma
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v. State of Uttarakhand, (2020) 10 SCC 710, it was submitted that
merely because the 2nd respondent/informant is a member of a
scheduled caste or a scheduled tribe, an offence under the Act
would not be made out unless there is an intention to humiliate her
only for the reason that she belongs to such caste. The materials on
record do not make out an offence under Section 3(1)(r) of the Act
and hence the bar under Section 18 or 18A is not attracted, goes the
argument.
2.1. Per contra, it was submitted by the learned Public
Prosecutor that the edited video uploaded by the appellant/accused
contains several derogatory statements against the 2nd
respondent/informant. The offences alleged are clearly made out.
Moreover, custodial interrogation of the appellant/accused is
required as seizure of the equipment used for editing and uploading
the video is necessary and hence no pre-arrest bail can be granted.
3. The learned Public Prosecutor submits that though
notice was issued to the victim through the SHO concerned, she did
not accept the notice. However, she has been informed of the
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pendency of the appeal. Heard both sides.
4. The prosecution case is that the appellant/accused
on account of his previous enmity towards the 2nd
respondent/informant as she had filed complaints against online
platforms like Crime online, True T.V., Bharat Live T.V. etc., with
the knowledge that she belongs to a scheduled caste community and
with the intention to defame and outrage her modesty, uploaded a
video in his YouTube channel. Initially the appellant/accused
downloaded the videos and pictures uploaded by one Sooraj
Palakkaran, editor of True T.V., in which the 2 nd
respondent/informant has been picturized as a person who had been
arrested for immoral traffic. The appellant/accused downloaded the
said videos and photographs, edited it by including an interview
with the husband of the 2nd respondent/informant; his views on the
topic etc., created a video using his mobile phone and other
electronic devices and on 22/06/2022 uploaded the same through his
YouTube channel, namely, Visal Media. Thus, the
appellant/accused as per the FIR is alleged to have committed the
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offences punishable under Section 354A(i)(iii), 354A(1)(iv),509
IPC; Section 66E, 67A of the Information Technology Act, 2000
(IT Act) and Section 3(1)(r),(s),(w),(ii) and Section 3(2)(va) of the
Act.
5. Section 66E of the IT Act deals with punishment
for violation of privacy. As per the Section, 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, is liable to be punished with
imprisonment or with fine or with both. Clause (c) to the
Explanation to the Section defines "private area" as the naked or
undergarment clad genitals, pubic area, buttocks or female breast.
Apparently, the materials on record now available before the court
do not attract the ingredients of the offence under Section 66E of the
IT Act.
6. Reference was made to Section 67A of the IT Act
which says that whoever publishes or transmits or causes to be
published or transmitted in the electronic form any material which
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contains sexually explicit act or conduct is liable to be punished
with imprisonment and fine. Sexually explicit conduct has not been
defined in the IT Act. Here, it would be apposite to refer to the
dictum in Majeesh K.Mathew v. State of Kerala, 2018 (4) KHC
253, wherein a Single Bench of this Court, noticing the absence of a
definition of the said term in the IT Act, referred to the United
Nations Model Law on Electronic Commerce, 1996 (UNCITRAL
Model) on which the IT Act is based. Reference was made to the
United States Code in which 'sexually explicit conduct' has been
defined thus -
"Sexually explicit conduct" means actual or simulated-
(i) sexual intercourse including genital-genital, oral
genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the anus, genitals or pubic
area of any person."
7. Now the question is whether the edited video
uploaded by the appellant/accused attracts the offence under Section
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67A of the IT Act. With the materials available on record, the same
is doubtful. The fact that an edited video was uploaded by the
appellant/accused is not denied by him. The video was made
available by the learned Public Prosecutor which was played in the
open Court. On watching the same, there can be no doubt that the
content is offensive and derogatory. The 2nd respondent/informant,
described as the wife of a farmer with three children, is stated to
have deserted her husband and is purportedly engaged in immoral
activities with multiple men. She is described as a drug addict and
belonging to a sex racket. The video contains an interview with the
husband of the 2nd respondent/informant who says that he had once
forgiven/pardoned her and brought her back after she had eloped
with another man. But she did not mend her ways and is still
leading a wayward life. The video also shows the 2 nd
respondent/informant in a room with another man. From what can
be made out from the video, some persons appear to be questioning
her presence in the room with the said man. In the video, the
appellant/accused states that the 2nd respondent/informant had given
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false complaints against one Nandakumar, editor of Crime online
and that the only fault of the said Nandakumar was that he had
given her a job in his office. The 2 nd respondent/informant instead
of being grateful, turned against Nandakumar and made a false
complaint against him resulting in his arrest and remand. The
appellant/accused goes on to proffer advice as to how men and
women need to treat their spouses and how and in what manner
marital relationships can be fostered.
8. The content of the video in question is
indisputably derogatory and constitutes a clear instance of online
harassment and abuse directed at the 2 nd respondent/informant. In
the era of social media, individuals often operate under the
misconception that the right to freedom of speech and expression
allows them to produce any form of content, make unfounded
criticisms, issue abusive remarks, or engage in derogatory conduct
towards others, all while evading accountability. This raises serious
concerns, particularly in the light of the growing prevalence of
cyberbullying, a phenomenon that remains inadequately addressed
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by current legal frameworks. It is of grave concern that, in this
digital age, there is a lack of comprehensive and effective
legislation to combat such misconduct, which, in my view,
necessitates the urgent attention of the authorities concerned. It is
important to note that bullying need not be solely defined by sexual
overtones, but may manifest in various forms, many of which
remain insufficiently addressed by existing legal standards. Notably,
while the IT Act does not explicitly define or address cyberbullying,
it is worth highlighting that amendments made to the Indian Penal
Code in 2013 introduced provisions relating to stalking and
voyeurism. However, there remains a conspicuous absence of legal
provisions that directly address the issue of cyberbullying or online
harassment, particularly those incidents devoid of any sexual
context. Further exacerbating this concern is the fact that, despite
the enactment of the Bharatiya Nyaya Sanhita, 2023, in 2024, no
legal provisions have been introduced to specifically address this
form of online harassment. This gap in the legal framework, in my
opinion, requires immediate rectification by the authorities
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concerned to ensure that cyberbullying, in all its forms, is
adequately regulated. To date, no other relevant provisions have
been brought to my attention by either party.
9. The question whether the offence under Section 67A
of the IT Act is made out from the evidence available on record is
doubtful. I refrain from further going into the merits of the said
allegation at this stage as the investigation is only at its preliminary
stage. It is for the investigating officer to bring in necessary
materials to establish the charge.
10. Now I shall address the question whether an offence
under Section 3(1)(r) of the Act is made out. It is true that the
appellant/accused does not specifically refer to the caste name of the
2nd respondent/informant. But the content of the video is certainly
abusive, derogatory and picturizing or depicting the 2nd
respondent/informant as a woman of loose morals/character or
sexually promiscuous. The content of the video is no doubt an insult
to the victim. The FIS of the victim also states that the video has
been viewed by more than one lakh persons. Therefore an offence
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under Section 3(1)(r) of the Act is certainly made out from the
materials on record. Hence, the trial court was right in finding that
bar under Section 18 and 18A of the Act is attracted. I find no
grounds for interference into the impugned order.
In the result, the appeal sans merit is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ak
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APPELLANT'S ANNEXURES:-
ANNEXURE-A1 A CERTIFIED COPY OF THE ORDER DATED
16.05.2024 IN CRIMINAL MISCELLANEOUS CASE
NO. 1407/2024 OF THE COURT OF SESSIONS
(VACATION COURT), ERNAKULAM DIVISION.
