On August 21, 2024  the Bombay High Court’s Division Bench, composed of Justice A.S. Gadkari and Justice Dr. Neela Gokhale, refused to quash an FIR registered by the Cyber Cell under Sections 354, 509, and 506(2) of the Indian Penal Code, 1860 (IPC), along with Section 67 of the Information Technology Act, 2000 (IT Act). The Court in this judgement extended the scope of the section 509 of the IPC to include written and electronic communications, emphasising that the protection of a woman’s modesty should adapt to contemporary forms of communication. The matter was remanded to the Trial Court with a recommendation to expedite the trial, taking into account the complainant’s advanced age.

The case revolves around a dispute between the accused and the complainant, both of whom were residents of the same building and had known each other since 1980. The complainant’s mother, who had served as the Chairperson of the Co-operative Housing Society since 1942, was no longer able to manage the society’s affairs due to her old age. The accused allegedly seized this opportunity to take over the management without a formal election, leading to significant tension within the society.

The complainant alleged that in 2009, the accused sent her a series of emails that were obscene, vulgar, and sexually explicit, thereby outraging her modesty. These emails also contained death threats and were carbon copied (CC’ed) to other residents of the building. After receiving these emails, the complainant lodged a complaint with the Cyber Cell, which, following a preliminary inquiry, resulted in the registration of the FIR against the accused.

One of the pivotal arguments presented by the accused was that the term “utterance” in Section 509 IPC refers strictly to spoken words and does not extend to written communication, such as emails. The accused contended that the legislature intended the word “utterance” to apply solely to verbal abuse or gestures, not to written or electronic communication.

The Court firmly rejected this narrow interpretation. It emphasized the importance of understanding legislative intent when interpreting statutory provisions. The Court asserted that Section 509 IPC is designed to protect the modesty of women from actions capable of shocking their sense of decency, and this protection extends to all forms of communication, including written and electronic forms. The Court observed:

“ Interpretation must correspond to societal transformations and re-evaluate legal principles to ensure fairness, justice, and equity.”

In making its decision, the Court placed reliance on the judgement R v. Ireland [1997] 4 All ER 225, which held that statutory interpretation must adapt to cover technological developments unknown at the time of the statute’s enactment. The Court also pointed to the amendment made by the State of Chhattisgarh to Section 509 IPC, which introduced Section 509-B, penalizing harassment of women through telecommunications or other electronic means. Although Maharashtra had not yet made a similar amendment, the Court held that penal statutes should be interpreted broadly to fulfill their intended purpose, and that “utterance” should not be confined solely to verbal expressions.

The court, to substantiate its broad interpretation, cited several precedents. In Emperor v. Tarak Das Gupta, 1925 SCC OnLine Bom 28, it was held that a letter sent through the post could be considered an “exhibition of an object” under Section 509 IPC, even if the letter was not sent directly by the accused but through a post office. Similarly, in Haries v. State of Kerala (2005 SCC OnLine Ker 100), the Court ruled that anonymous letters containing offensive language fell within the ambit of Section 509 IPC, as they outraged the modesty of the recipient.

The Court also relied on the Supreme Court’s decision in Ramkripal v. State of M.P. (2007) 11 SCC 265, which emphasised that modesty is an inherent attribute of women, and any action that violates this modesty is punishable under Section 509 IPC. The Court reiterated:

“Modesty in this Section [509 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.”

Additionally, the Court referenced the Supreme Court’s landmark judgement in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, which recognised the right to privacy as an element of human dignity, and held that the emails not only outraged the complainant’s modesty but also constituted an intrusion into her privacy.

The Court provided detailed observations on the specific content of the emails sent by the accused, which played a critical role in the case. For instance, the complainant was repeatedly referred to as “Bonnie,” a clear reference to the notorious character from the film Bonnie & Clyde. The Court noted that the reference to ‘Bonnie’ was intended to insult the complainant by associating her with a criminal figure, thereby degrading her dignity and reputation.

Moreover, the emails contained several offensive phrases, 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,”
• ”Squatting in the nude.”

These expressions, according to the Court, were designed to conjure offensive and degrading images of the complainant in the minds of those CC’ed on the emails. The Court stated that the only possible intention behind these emails was to humiliate and degrade the complainant.

The Court concluded that the emails clearly fell within the ambit of Section 509 IPC, as they were not only likely to outrage the complainant’s modesty but also violated her right to privacy and dignity. The Court held that the emails prima facie outraged the complainant’s modesty and intruded upon her privacy, both of which are protected under Indian law.

In light of these findings, the Court declined to quash the FIR with respect to the charges under Section 509 IPC and Section 67 of the IT Act. However, it quashed the charges under Sections 354 and 506(2) IPC, clarifying that its observations were limited to the correctness of the offences invoked in the FIR. Finally, considering that the complainant was now 80 years old, the Court urged the Trial Court to expedite the trial and conclude it within a year.

Case Details: Joseph Paul de Sousa v. State, 2024 SCC OnLine Bom 2719, decided on 21-08-2024.

Advocates for the Petitioner: Senior Advocate Haresh Jagtiani a/w Adv. Suprabh Jain, Adv. Pushpvijay Kanoji & Adv. Siddhesh Jadhav i/b Haresh Jagtiani & Associates

Advocates for the Respondents: Adv. Vinod Chate, APP; Adv. Kushal More a/w Adv. Tanmay Karmakar, Roshan Chouhan, Adv.