The High Court of Kerala has delivered a significant clarification on the scope of voyeurism under Section 354C of the Indian Penal Code, holding that criminal liability cannot be invoked without concrete evidence that the victim was engaged in a private act and had a reasonable expectation of privacy. This ruling reinforces the necessity of strict evidentiary thresholds in cases involving personal dignity and digital privacy.
Background & Facts
The Dispute
The petitioners, three individuals including a police officer, were accused of committing voyeurism under Section 354C IPC and criminal conspiracy under Section 120B IPC. The complainant, Rema Devi, alleged that on 9 September 2015, while she was drying clothes after bathing, the petitioners - along with a professional photographer - took photographs of her without consent. She further claimed the act constituted an offence under Section 66E of the Information Technology Act.
Procedural History
- September 2015: Complainant filed a private complaint before the Judicial Magistrate, Neyyattinkara.
- October 2015: Magistrate directed police investigation under Section 156(3) Cr.P.C. The Inspector of Police, Poovar, filed a refer report concluding the complaint was false.
- 2016 - 2017: Complainant filed multiple applications seeking court-supervised investigation, relying on Zakiri Vasu v. State of U.P.
- March 2018: After a second investigation, the police reiterated the complaint was baseless. The Magistrate nevertheless took cognizance upon a protest complaint.
- 2020: Petitioners filed this petition under Section 482 Cr.P.C. to quash proceedings.
Relief Sought
The petitioners sought quashing of the criminal proceedings against them, arguing that the complaint lacked any factual or legal basis to sustain charges under Sections 354C IPC and 66E IT Act.
The Legal Issue
The central question was whether Section 354C IPC and Section 66E of the Information Technology Act can be invoked when there is no evidence that the complainant was engaged in a private act or had a reasonable expectation of privacy at the time the photograph was taken.
Arguments Presented
For the Petitioner
The petitioners contended that the complainant’s sworn statement under Section 200 Cr.P.C. failed to establish any of the essential ingredients of voyeurism. They emphasized that:
- The complainant was in a public-facing area near her house, drying clothes in daylight.
- She did not allege she was undressed or exposed private areas.
- She admitted she did not know why the photographer was present or what photo was taken.
- The initial complaint named only two accused; the protest complaint suddenly implicated all three, indicating fabrication. They relied on the Explanation-I to Section 354C IPC, which defines a "private act" narrowly, and argued that the facts did not meet this threshold.
For the Respondent
The State and complainant argued that the act of photographing a woman in a "bathing dress" near her home, without consent, inherently violated her privacy. They cited the witness testimony of Eugin, who claimed to have seen a woman in bathing attire being photographed, as corroboration. They contended that the complainant’s failure to immediately object did not negate the offence, and that the Magistrate’s cognizance was valid under Section 200 Cr.P.C.
The Court's Analysis
The Court undertook a rigorous textual and contextual analysis of Section 354C IPC and Section 66E IT Act, emphasizing that both provisions require proof of intentional violation of privacy in specific, legally defined contexts.
"The offence under Section 354C IPC would be attracted if only it is shown that the offender had watched or captured the image of the victim engaging in a private act in circumstances where she would usually have the expectation of not being observed by the perpetrator or by any other person at the behest of the perpetrator."
The Court noted that the complainant’s own statement did not allege she was naked, in underwear, using a lavatory, or engaged in a sexual act. She was drying clothes in daylight, in a visible area, and did not claim she was improperly dressed. The Court held that such conduct, even if intrusive, does not meet the statutory definition of a "private act" under the Explanation to Section 354C.
Regarding Section 66E IT Act, the Court observed that the complainant did not allege that any private area - genitals, buttocks, or breasts - was captured. The term "private area" is explicitly defined, and the evidence fell far short.
The Court further rejected the testimony of the two witnesses as inconsistent with the complainant’s own version. One witness claimed to have seen a woman in "bathing condition" running into her house - a detail absent from the complainant’s statement. The Court held that such discrepancies rendered the evidence unreliable and insufficient to sustain prosecution.
The Court concluded that initiating criminal proceedings on such a foundation amounted to an abuse of process and violated the petitioners’ right to liberty under Article 21 of the Constitution.
The Verdict
The petitioners won. The Court held that Section 354C IPC and Section 66E IT Act were not made out in the absence of proof of a private act or reasonable expectation of privacy. The proceedings against the petitioners were quashed as legally unsustainable and an abuse of process.
What This Means For Similar Cases
Privacy Must Be Legally Defined, Not Assumed
- Practitioners must now demonstrate that the alleged victim was in a context where privacy was objectively reasonable - e.g., changing clothes, using a toilet, or in a secluded space.
- Merely photographing someone in public view, even if unconsented, does not automatically attract voyeurism charges.
- Courts must scrutinize whether the statutory definition of "private act" is met before allowing prosecution to proceed.
Prosecution Cannot Rest on Inconsistent Testimony
- When the complainant’s version changes materially between initial complaint and protest complaint, courts must treat it as a red flag.
- Witness statements that contradict the complainant’s sworn testimony cannot be used to bootstrap a case.
- Prosecutors must ensure consistency and corroboration before filing charges under sensitive provisions like Section 354C.
Section 482 Powers Are a Safeguard Against Frivolous Prosecutions
- Courts have the authority under Section 482 Cr.P.C. to quash proceedings where the complaint, even if accepted at face value, fails to disclose an offence.
- This judgment reinforces that the threshold for cognizance under Section 200 Cr.P.C. is not a mere formality - it must reflect a prima facie case grounded in statutory elements.
- Lawyers should routinely invoke Section 482 in cases where the facts, even if true, do not constitute the alleged offence.
