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Synopsis

The Kerala High Court has clarified that capturing photographs of a woman in a public setting without any expectation of privacy does not fall under the offence of voyeurism as defined in Section 354C of the Indian Penal Code (IPC).

The court, presided over by Justice A. Badharudeen, partially allowed a petition filed by the accused, quashing the charge of voyeurism. The court observed, “If a woman normally appears in a public place or private place not in circumstances where she would usually expect, any other person if either see or captures her image, the same, in no way, affect her privacy by exposing the genitals, posterior or breasts are exposed or covered only in underwear etc., no offence under Section 354C of the IPC, would attract.”

The court’s observation came in a case arising from an incident on May 3, 2022, involving petitioner and another individual. According to the prosecution, the complainant alleged that the two men arrived in a car in front of her house around 4:30 a.m. and took photographs of her while she was standing outside. When the complainant confronted them near her gate, they reportedly made lewd gestures. Specifically, the petitioner, according to the complainant, allegedly made a gesture implying he was holding her breast, and the second accused made a similar gesture. The prosecution argued that this conduct amounted to voyeurism under Section 354C and an act intending to insult the modesty of a woman under Section 509 of the IPC.

The petitioner argued that no photographs of the complainant were found on the accused's phone, and other witnesses only had second-hand knowledge of the events. It was also claimed that the case was motivated by personal enmity, as the complainant and the petitioner had previously clashed over temple committee matters. The petitioner sought to quash all charges, contending that the alleged acts did not meet the criteria for voyeurism as outlined in the IPC, arguing that Section 354C, which criminalises capturing images of a woman engaged in a “private act,” was inapplicable as the complainant was outside her house without any reasonable expectation of privacy.

The court examined the definition of voyeurism under Section 354C of the IPC and explained that voyeurism only applies when a woman is observed or photographed in a "private act," where she would reasonably expect privacy. Examples of such acts include circumstances where a person’s genitals, posterior, or breasts are exposed or when a person is using a lavatory or engaged in an act not typically done in public.

Since the complainant was standing outside her home without any expectation of privacy, the court noted, “In the instant case, the de facto complainant was in front of her house, without any secrecy, as stated in Section 354C of the IPC and as such, the said offence would not attract herein,” finding no grounds to apply Section 354C in this instance.

The High Court, therefore, quashed the charges of voyeurism but noted that the trial court should evaluate whether the alleged gestures could support a charge under Section 354A of the IPC, which deals with sexual harassment. The prosecution under Section 509 of the IPC, pertaining to gestures intended to insult a woman’s modesty, was allowed to continue.

 

Cause Title: Ajith Pillai v. State of Kerala [CRL.MC NO. 8677 OF 2024]

Appearances: Advocates Sreekanth K.M., T.P. Rashmy, Arjun T. Pradeep (Counsel for Petitioners) and Public Prosecutor M P Prasanth (Counsel for Respondents)