"It is private communication between two parties": Kerala HC dismisses petition against two nuns for allegedly 'publishing' photo of rape victim

The Kerala High Court dismissed a petition alleging two nuns had published photo of a victim of rape. 

The petitioners are nuns. The prosecution allegation is that the petitioners published photo of the victim  through social media platform, whatsapp. involved in a case under Section 376 of the IPC disclosing her identity. The petitioners contend that even if the entire allegations against the petitioners are believed in its entirety, no offence under Section 228A of the IPC is made out.

However, the counsel for the petitioners, Alex Joseph submitted that the nuns only sent e-mails to three media persons. He submitted that the e-mail allegedly sent by the petitioners to three media persons is a private communication between two persons and not a publication so as to bring it within Section 228A of the IPC. On the other hand, the learned Public Prosecutor submitted that, even a private communication between two individuals, that too with media persons, disclosing the identity of the victim would fall within the ambit of Section 228A of the IPC.

Justice Dr. Kauser Edappagath dismissed the allegation. The Court noted that even though an email was sent to the media persons, it did not contain the name of the victim. However, it did contain the photo of the victim with strict clarification that the identity as well as the face of the victim shall not be published. The Court thus noted that it is clear that the report sent by the petitioners through e-mail to three media persons was meant for publication. However, in the said report, the name or identity of the victim is not disclosed at all. Therefore, the contents of the report as such do not fall within Section 228A of the IPC. The Court stated,

"Of course, the report carries the photograph of the victim. But a specific instruction was given by the petitioners to the recipient of the e-mail that the identity of the person in the photograph or identity of the victim shall not be published at all. It is submitted that, that is not published also. Hence, I am of the view that, it is only a private communication between two parties."

The Court further observed that the circumstance shows that there was no intention on the part of the petitioners to disclose the identity of the victim involved in a sexual offence to the public at large or even to a third party.

Sister Amala v. State of Kerala