Law Web: Bombay HC: Objectionable Words Written In E-Mail Or On Social Media Can Be Penalized U/S 509 of IPC For Insulting Woman's Modesty

Later, legislature found that a woman must be protected

not only from physical aggressions made in the course of

outraging her modesty, but she should also be shielded from

various other acts which do not involve even a touch. Legislature

was quite aware that a woman’s modesty can be insulted or

outraged in various ways. A mere word, a wink, a touch or even

a look would suffice to insult the modesty of a Woman. Physical

advances may not be necessary in all cases. Everything depends

on the intention of the mischief-maker and the manner in which

he conveys his intentions. It is evident that legislature intended

that any aggression into a woman’s modesty whether by any

word, deed, touch or look need be curbed and deterred. {Para 18}

19. That is why even a verbal attack on a woman, a gesture

and other acts stated in Section 509 I.P.C. were brought under

the said Section. It is clear from a reading of Section 509 I.P.C.

that by introducing the said provision, legislature intended that

any sort of aggression into a woman’s modesty whether by any

word, deed or act should be deterred, as evident from the title to

the Section itself. Thus, the acts which are done intending to

insult the modesty of a woman which may not necessarily involve

even any physical advances are also brought within the sweep of

a separate provision viz., Section 509 I.P.C.

20. In such circumstances, can it be for a moment presumed

that the legislature intended that a person who writes a letter to

a woman with the intention to insult her modesty should go

unpunished? If such a person, instead of uttering the insulting

words, puts in writing all what he determines to utter against a

woman and sends it to her, intending to insult her modesty, will

any Court be justified in holding that the legislature expected such person to escape safely? was it the intention of the legislature that such a culprit must go unhurt only because he used his pen and not his tongue, to insult the victim? After suffering all the trauma, when a woman comes before Court with the best proof for the assault or violence made on her modesty by producing the letter, can the Court refuse to look into the same on the ground that the legislature never intended to bring cases involving writings within the purview of Section 509 I.P.C.?

21. I find it extremely difficult to reach a conclusion which

will defeat the very object of Section 509 I.P.C. There can be

little doubt that the legislature would not have intended that a

person who insults the modesty of a woman by his writings must

be kept out of the province of Section 509 I.P.C. In a country like

India, legislature would not have ever intended that a person

who expresses his attitude or intention to insult modesty of a

woman by sending a letter should be absolved from criminal

liability. I am of view that the very object of the provision will be

defeated if a contrary view is taken. Thus, while interpreting the

meaning of the relevant expression in Section 509 I.P.C. in the

light of the relevant rules of interpretation, I find that ‘writing of

letter’ to a woman, intending to insult her modesty can be

construed as ‘making a gesture’ under Section 509 I.P.C. I feel

quite confident to hold that Indian legislature’s intention will not

be contrary to what I have already concluded.”

The transmission by the Petitioner of the offensive e-mails to her and other residents in the society demonstrates clear intent of the Petitioner to insultthe Respondent No. 2. As we have already discussed hereinabove that, no matter that the offensive material was transmitted through electronic media, it would still be ensconced in the interpretation of the words ‘utter’ and ‘gesture’ and ‘exhibit’. Alternatively, it intrudes on the Respondent No. 2’s privacy.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 3480 OF 2011

WITH

INTERIM APPLICATION NO. 2355 OF 2023

CRIMINAL WRIT PETITION NO. 3480 OF 2011

Joseph Paul de Sousa, Vs The State

CORAM: A. S. GADKARI AND

DR. NEELA GOKHALE, JJ.

PRONOUNCED ON: 21st AUGUST 2024.

JUDGMENT ( Per Dr. Neela Gokhale, J. ) :

1) The Petitioner seeks quashing of First Information Report

(F.I.R.) No. 30 of 2009 dated 29th December 2009 registered with Cyber

Cell, Mumbai for the offense punishable under Sections 354, 509 & 506(2)

of the Indian Penal Code, 1860 (I.P.C.) and Section 67 of the Information

Technology Act, 2000 (I.T. Act). He also seeks to quash and set aside the

criminal proceedings arising out of the aforesaid F.I.R. bearing C.C. No.

255/PW/2010 pending before the Court of Metropolitan Magistrate, 37th

Court at Esplanade, Mumbai.

2) Mr. Harish Jagtiani learned senior counsel appeared for the

Petitioner. Mr. Kushal Mor, learned counsel represented the Respondent No.

2 and Mr. Vinod Chate, learned A.P.P. appeared for the State.

3) The facts of case are as under :

3.1) The Petitioner and the Respondent No. 2-Ms. Zinnia are

residents of the building called “Connaught Mansions” situated on the

Shahid Bhagat Singh Road, Colaba, Mumbai. They are acquainted with

each other since 1980. According to Ms. Zinnia, her mother was the

Chairperson of the Co-operative Housing Society since 1942. Since her

mother was old and unable to look after the affairs of society, the Petitioner

without being elected as such, usurped the office of Chairman and started

interfering in the society work despite strong objection from the other

residents of the building.

3.2) Ms. Zinnia, the Respondent No. 2 contends that, on 7th

February 2009 at 11.00 p.m. she logged in to her e-mail ID

zinniamk@gmail.com to find an e-mail from jpdesousa123@rediffmail.com

in her inbox. The subject of the e-mail was titled as “Burden of Proof & the Legacy of Guilt”. The recipient e-mail ID was that of the Petitioner herein. The e-mail contained a sentence “frankly, even if you streaked across Mumbai or squatted in the nude on Nandgaon’s Beach, you will never ever get people to pay attention to your opinions and views.” The said e-mail was Carbon Copied (cc’ed) to sharanh14@gmail.com,sehira.ebrahim@amarchand.com, deltascf@bom 3 vsnl.net.in. These email IDs are of other residents in the society. It is the case of Ms. Zinnia that, this e-mail has defamed her in the society.

3.3) She then received another e-mail on 9th February 2009 which

contained another sentence “fig leaf of anonymity will be plucked and get you nowhere…”.

3.4) On 22nd March 2009 she received another e-mail from the

Petitioner’s e-mail ID which also included a sentence “I am going to win this one and how!!!. Will not be a limited over match – I like to take trouble dressing a corpse – a perfect undertaker they called me”.

3.5) It is the case of Respondent No. 2 that, the language in the

entire contents of three e-mails, including the three sentences, is of such obscene, vulgar and of overtly sexual nature that outrages her modesty. By way of the e-mails, he has also threatened to kill her. Ms. Zinnia therefore made a written Complaint dated 7th August 2009 to the Cyber Crime Investigation Cell (C.C.I.C.), Crime Branch, Mumbai. Pursuant to a preliminary enquiry, the present F.I.R. is registered.

4) By Order dated 2nd February 2012, the proceedings before the

trial Court were directed to be stayed.

5) At the outset, Mr. Jagtiani, learned senior counsel took us

through the ingredients of the offenses as alleged against the Petitioner. He

submitted that, the contents of the alleged offensive e-mails may perhaps be

in bad taste but do not by any stretch of imagination fall within the scope

and ambit of the alleged offenses. On this ground alone, the criminal

proceedings deserve to be quashed and set aside. He then advanced his

objections to the continuance of the criminal proceedings, enumerated as

under:

a. The F.I.R. is in complete violation of the mandate provided by

the Apex Court in the case of T. T. Anthony Vs. State of Kerala And

Others

. There cannot be a second F.I.R. on the same facts in respect

of the same offense.

b. He submitted that, there is a history of prior friction and

animosity between the Petitioner and the Respondent No. 2 arising

from the businesses of the Khajotia family. The acrimony between

the parties has traipsed its way across the High Court of London at

United Kingdom (U.K.) to this High Court entangled with personal

1. (2001)6 Supreme Court Cases 181.

vendetta to the Respondent No. 2 and her late husband’s family. This

animosity has resulted in the Respondent No. 2 filing the F.I.R. out of

sheer personal spite and vendetta with a view to cause undue

harassment to the Petitioner. The ulterior motive is to wreak

vengeance on the Petitioner to spite a personal grudge.

c. There is a delay of 7-8 months in lodging the F.I.R.

d. There can be no application of Section 354 of the I.P.C. due to

lack of any allegation regarding assault or use of force against the

Respondent No. 2. Moreover, he contends that, there can be no

application of Section 509 of the I.P.C. as well since there is no

intention to insult/outrage the modesty of a woman. Mr. Jagtiani

while interpreting Section 509 of the I.P.C. contended that, to attract

the said offense, it is necessary that the offending words should be

uttered or communicated by way of a gesture. The offense cannot be

committed by written words. Thus, he submitted that, the e-mails

which are obviously not ‘utterances’ nor ‘gestures’, do not fulfill the

ingredients of Section 509 of the I.P.C. Furthermore, none of the

three e-mails remotely suggest a threat with any bodily injury or

death to the Respondent No. 2.

e. As regards Section 67 of the I.T. Act, an argument was

advanced that the provision prima-facie deals with obscenity. It is

also submitted that, the definition of the words ‘lascivious’ and

‘prurient’ appearing in the provision signifies that form of immorality which relates to sexual impunity which is absent in the e-mails.

f. The Courts in a catena of decisions have ruled that a mere

outburst of an accused is not sufficient to cause an alarm or harm to

the victim but with a view to deter her from interfering with the

Petitioner’s personal matters would not constitute an offense of

criminal intimidation.

g. Finally, Mr. Jagtiani submits that the F.I.R. does not disclose

commission of a cognizable offense justifying investigation by Police.

He thus seeks quashing of the F.I.R. and setting aside the entire

criminal proceedings ensuing therefrom i.e. the C.C. No.

255/PW/2010.

5.1) Mr. Jagtiani has placed reliance on the following decisions of

the Supreme Court in the cases of:

 Abhijeet J. K. Vs. State of Kerala And Others

;

 S. Khushboo Vs. Kanniammal And Another

;

 Apoorva Arora And Another Vs. State (Government of NCT of Delhi)

And Another

;

 Nelson Motis Vs. Union of India And Another

;

 Padma Sundara Rao (Dead) And Others Vs. State of T. N. And

Others

;

2. 2020 SCC OnLine Ker 703.

3. (2010) 5 Supreme Court Cases 600.

4. (2024) 6 Supreme Court Cases 181.

5. (1992) 4 Supreme Court Cases 711.

6. (2002) 3 Supreme Court Cases 533.

 M. V. Joshi Vs. M. U. Shimpi And Another

;

 A. W. Meads Vs. The King Emperor

;

 Sandeep Rammilan Shukla & Ors. Vs. State of Maharashtra And

Others

;

 Babubhai Vs. State of Gujarat And Others

10;

 State of Haryana And Others Vs. Bhajan Lal And Others

11;

 Ramkripal S/o. Shyamlal Charmakar Vs. State of M. P.

12;

 Dr. Subramanian Swamy Vs. C. Pushparaj

13;

 Mohammed Rizwan Fazluddin Kadri Vs. State of Gujarat

14;

 Maqbool Fida Husain Vs. Raj Kumar Pandey

5.2) He has also placed reliance on the Oxford Thesaurus to explain

the meaning of the word ‘gesture’ appearing in Section 509 of the I.P.C.

6) Per-contra, Mr. Mor, learned counsel for Respondent No. 2,

recounts the acrimonious relationship between the parties borne out of a

series of litigation in U.K. and India. His submissions are as under:

6.1) According to Mr. Mor the Petitioner habitually employs a

modus-operandi to circulate nasty, threatening letters and e-mails

maligning reputation of individuals and families into whose affairs he

meddles for a purely financial motive. He further narrates the plight of the

Respondent No. 2 of facing defamation at the hands of the Petitioner by

7. 1961 SCC Online SC 56.

8. 1944 SCC OnLine FC 19.

9. 2008 ALL MR (Cri.) 3486.

10.(2010) 12 Supreme Court Cases 254.

11. 1992 Supp (1) Supreme Court Cases 335.

12. (2007) 11 Supreme Court Cases 265.

13. MANU/TN/0053/1998.

14. Special Criminal Application No. 1832 of 2009 decided on 22nd February 2010.

15. Criminal Revision Petition No. 114 of 2007 decided on 8th May 2008.

way of persistently circulating e-mails containing details of her personal life

and that of her family, their business, their relationship with their friends

and family. These details are also factually incorrect.

6.2) Mr. Mor has denied all the allegations made by the Petitioner

against the Respondent No. 2 in the Petition. By way of an Affidavit-inReply dated 5th March 2012, it is denied that the registration of the F.I.R. or

the Complaint has any relation to the animosity with the Petitioner and

neither is the same on account of alleged orders passed in London or by this

Court nor on account of any action taken by Dallah Albaraka Group. It is

reiterated that, the F.I.R. is based on threatening the Respondent No. 2 and

lewd e-mails sent to her, which on plain reading are intended to outrage the

modesty of a woman.

6.3) Mr. Mor vehemently argues that, the e-mails not only

demonstrate intent of the Petitioner in outraging the modesty of

Respondent No. 2 but is also an attempt to terrorize a widow and a lone

woman. Mr. Mor contends that, the attempt of the Petitioner to label the

contents of the e-mail as ‘mere idioms’ not denoting any derogatory

meaning is in vain. He submitted that, the e-mail/s if read as whole

particularly the offending words contained in the e-mail read as

independent phrase/sentence, is highly derogatory and outrages her

modesty. He thus states that, the ingredients of the offenses alleged are

fulfilled and the Petitioner has committed a cognizable offense.

6.4) Mr. Mor places reliance on the following decisions of the

Supreme Court and other High Courts in the cases of :

 M. M. Haries Vs. State of Kerala

16;

 Emperor Vs. Tarak Das Gupta

17;

 State of Punjab Vs. Major Singh

18;

 Raju Pandurang Mahale Vs. State of Maharashtra And Another

19;

 Indrakunwar Vs. State of Chhattisgarh

20;

 K. S. Puttaswamy And Another Vs. Union of India And Others

6.5) He further places reliance on definitions in the concise Oxford

Dictionary to elaborate the meaning of the terms ‘lascivious’ and ‘prurient’ and other words appearing in the context of the present case.

7) Mr. Vinod Chate, learned A.P.P. opposed the Petition and also

supported the case of Respondent No. 2.

8) Analysis :

8.1) At the very outset, we deal with the objection of Mr. Jagtiani

regarding registration of a second F.I.R. not being maintainable. According to Mr. Jagtiani, the Respondent No. 2 gave a written Complaint on 7th August 2009 to the Senior Police Inspector, C.C.I.C. regarding the three emails. There was an enquiry and upon finding that, the e-mails were sent by the Petitioner, he was called upon to give his statement. As per the

16. 2005 SCC OnLine Ker 100.

17. 1925 SCC OnLine Bom 28.

18. 1966 SCC OnLine SC 51.

19. (2004) 4 Supreme Court Cases 371.

20. 2023 SCC OnLine SC 1364.

21. (2017) 10 Supreme Court Cases 1.

convenience of the Petitioner, he gave his explanation. The present F.I.R. dated 29th December 2009 was lodged by the Respondent No. 2. This, according to Mr. Jagtiani is a second F.I.R. and as per settled law, not maintainable. We have looked at the documents including the written Complaint and the latter F.I.R. It is clear that, there is no ‘second F.I.R.’ as alleged by the Petitioner. Pursuant to the written Complaint made to the C.C.I.C. by the Respondent No. 2 the Police had conducted a preliminary enquiry and after reaching to a prima-facie conclusion that, a cognizable offense is made out have registered the F.I.R. impugned herein. This course of action is perfectly legal and there is no ‘second’ F.I.R. as alleged by the

Petitioner. In this regard, we have no hesitation in holding the act of the Respondent No. 1 in registering the present F.I.R. to be maintainable and there is no any irregularity or illegality in the same.

8.2) In order to determine prima-facie commission of an offense, it is necessary to first establish as to whether ingredients of the offense are satisfied. Relevant extracts of the subject e-mails are reproduced herein for

clarity and convenience:

 E-mail dated 7th

February 2009

“There are very few people who matter in Mumbai, who are

uninformed and unaware of the Khajotia story...Everyone knows

of the role of the Khajotias in the “financial nightmares” the

Bachhans had, the numerous families who were duped with false

promises; the scamming of banks and insurance companies.

They also know that I stopped a 100 crore loan from the State

Bank of India that the Khajotia’s had applied for and for which

heavy bribes were allegedly paid...I have files of material on the

Khajotia story. I have letters from you and your husband

begging for relief and pleading for me to call off the heat...The

two of you even offered in writing to pay me a huge sum of

money!!! Really!!! Let me tell you, in B W, that there is nothing

you can ever hope to do in order to establish credibility in India.

You and your family ran away from the U.K. to get away from

proceedings from the Crown Court and Sarosh Zaiwala a leading

U.K. Solicitor...This is a matter of record…

...I understand that the Khajotias are valued patients of Nina

Madnani and that she has been seriously trying to remove those

“black spots and blemishes” ...But can she ever do that? Does

she realise that you wake up every day with a plea… (like Lady

Macbeth) “Out, out damned spot…” The black spots and

blemishes of guilt on a conscience cannot be treated by a

dermatologist!…

…So Bonnie, you are back where you have always been at the

big ZERO. I truly feel you should see a shrink and get an

analyst. I have said that several times before as well. When you

have a name that is spun off as Kyaajootyaar little you say and

do carries any weight. I would love to make my files on you part

of my response to any Competent Authority. It would kaputs for

your family in India thereafter…

By the way, how many people in Bakhtawar care about you.

Frankly none! You are public nuisance to your neighbors at

Connaught Mansions at Bakhtawar and at Nandgaon...Do you

have a single loyal friend who can survive your spineless

character?

It is your choice – the way forward from here… I am prepared to

confront you (and your past) anything.

As far as your colleagues are concerned- I am formally cc'ing this

e-mail to them so that they can after reading it AND repeat

checking out my comments independently…”

 E-mail dated 9th

February 2009

“Let me start by explaining just why you are called Bonnie…

...Of the exploits that marked your track record and which

merited comparison with the infamous duo – Bonnie & Clyde and

hence the decision to refer to you as Bonnie…

...I am amazed at your stupidity, lack of focus and foggy (isn’t

that a word you like?) mind…

I challenge your colleagues to ascertain your background

independently and see what they come up with… Perhaps they

will discover more than I have chosen to reveal thus far… And

yet, on the other hand, they may discover that you are a blessed

angel… Come out of the shadows Bonnie and be open with your

intentions because you stand no chance at all and the fig leaf of

anonymity will be plucked and get you nowhere…”

 E-mail dated 22nd

March 2009

“...Shall we say match on? Let the Games begin – I say – I am

going to win this one and how!!! It will not be a limited over

match – I like to take trouble dressing a corpse – a perfect

undertaker they call me.”

8.3) The thrust of Mr. Mor’s arguments is on commission of the

offense punishable under Section 509 of the I.P.C. and Section 67 of the I.T. Act. Contrary to this, Mr. Jagtiani attempts to persuade us that. Section 509 contemplates ‘utterance’ of a spoken word or words or making a gesture leading to outrage the modesty of a woman. In that sense he says that, meaning of the term ‘utterance’ always indicates ‘verbal utterance’ and not a ‘written word’, meaning thereby an e-mail is not contemplated in the word ‘utterance’. For better exposition, the section is reproduced below:

“…509. Word, gesture or act intended to insult the modesty of a

woman.— Whoever, intending to insult the modesty of any

woman, utters any word, makes any sound or gesture, or exhibits

any object, intending that such word or sound shall be heard, or

that such gesture or object shall be seen, by such woman, or

intrudes upon the privacy of such woman, shall be punished with

simple imprisonment for a term which may extend to one year, or with fine, or with both…”

8.4) The essential ingredients of Section 509 of the I.P.C. are as

under:

i. Intention to insult the modesty of a woman;

ii. The insult must be caused by:

a. uttering any words, or making any sound

b. or gesture,

c. or exhibiting any object

intending that such word or sound shall be heard or that the

gesture or object shall be seen by such woman, or

iii. intruding upon the privacy of such a woman.

8.5) Section 509 of the I.P.C. delineates three pivotal components

for establishing an offense, Firstly, the presence of an intention to insult the modesty of a woman; Secondly, the manner in which this insult is perpetrated and Thirdly and independently, an intrusion on her privacy. The manner of such intrusion is not restricted by an ‘utterance’ or ‘gesture’.

To constitute the offense, the intrusion of privacy is not qualified by any manner; be spoken or otherwise.

8.6) A narrow interpretation of the section, as Mr. Jagtiani would like us to take, would indicate that the insult itself can take place only through two distinct modes, verbally or visually by uttering specific words, making sounds, or displaying gestures or objects, with the deliberate intent that these words, sounds, gestures, or objects are heard or seen by the woman involved. He places reliance on the decision in the case of Nelson

Motis Vs. Union of India (supra) to canvass that, if the words of a statute

are clear and free from any vagueness and are therefore reasonably

susceptible to only one meaning, it must be construed by giving effect to

that meaning, irrespective of consequences. He states that the expression

used in the statute alone declares the intent of the legislature. We have

read the decision in the said case. It relates to the interpretation of Rule

10(4) of the Central Civil Services (Classification, Control and Appeal)

Rules, 1965. He also relies on the decision of the Supreme Court in M.V. Joshi Vs. M.U. Shimpi (supra) to buttress his argument that a rule of strict construction requires that the language of a statute should be so construed

that no case shall be held to fall within it which does not come within the

reasonable interpretation of the statute. He further points to the

observation of the Apex Court in the said decision that, the primary test is

the language employed in the Act and when the words are clear and plain

the Court is bound to accept the expressed intention of the legislature.

8.7) As enunciated in the above cases, there is absolutely no quarrel

with the principle that the interpretation of a provision is related to the

intent of the legislature. In fact, the mischief sought to be addressed by

Section 509 of the I.P.C. is an insult or affront to the dignity of a woman

which outrages her modesty. When the manner in which this mischief plays

up arises for determination, it is the bounden duty of the Court to adopt a

purposive approach of interpretation; i.e., which gives rational meaning to

the language of the legislature. Advent of modern technology has openedup wide spectrum of means to communicate an insult. When an e-mail

containing objectionable content likely to outrage the modesty of a woman

stares at her, can we permit the perpetrator to walk away undaunted,

simply because the insult is written and not spoken. Interpretation must

correspond to societal transformations and re-evaluate legal principles to

ensure fairness, justice, and equity.

8.8) As society evolves, so must the interpretation of the law to

address emerging challenges and promote social progress. The law is a dynamic entity capable of reflecting and adapting to a society’s changing needs and values. As Lord Denning cautioned in the case of Seaford Court Estate (1949)2 All ER 155. that, ‘the English language is not an instrument of mathematical precision’. It must be understood to support legislative intent. The intention of the legislature is to deter action of the offender as could be perceived as one which can shock the sense of decency of a woman. The manner in which the offender does this is not restricted to oral abuse or gesture alone. The word ‘utterances’ include statements, speeches, exclamations, notes and all of it can well be in a text form relayed physically or by electronic medium.

8.9) In the case of R Vs. Ireland (1997)4 All ER 225. it is held that, the rule of strict construction does not also prevent the Court in interpreting a statute according to its current meaning and applying the language to coverdevelopments in science and technology not known at the time of passing of the statute. Thus psychiatric injury caused by silent telephone calls was held to amounts to ‘assault’ and ‘bodily harm’ under Sections 20 & 47 of the Offense Against Persons Act, 1861.

8.10) Closer home, the State of Chhattisgarh by an amendment to

Section 509 of the I.P.C. has introduced a new category of offense of

outraging the modesty of a woman. Section 509-B of the I.P.C. is inserted to include harassment of a woman by ‘means of telecommunication device or other electronic mode including internet’ also made punishable. Although there is no such amendment made in the State of Maharashtra, penal

statutes are known to be interpreted having regard to the subject matter of

the offense and the object of law it seeks to achieve. The purpose of law is

not to allow the offender to sneak out of the meshes of law. Criminal

jurisprudence does not say so.

8.11) According to us the word ‘utterance’ must not be given a

pedantic interpretation. If such narrow interpretation is accepted, many a men will walk away, unhindered by consequences merely by shooting emails or using social media platforms to malign and insult a woman and outrage her modesty. Modern technology makes such manner of perpetrating the offense verily real. Similarly, to ‘exhibit’ an object is not restricted to actually and physically exhibiting it by the accused himself, but the exhibition can be by way of an agency of a device such as a personal computer, mobile phone or any other electronic device.

8.12) In a decision of this Court in the case of Emperor Vs. Tarak Das Gupta (supra), both the learned Judges separately opined that, a letter sent by post is included in the act of ‘exhibiting an object’ even if it be not by the accused himself but by the agency of a post office. Fawcett, J. (Madgavkar, J. concurred) held as under:

“The only point of substance that has been urged by Mr. Sopher

for the petitioner is that the case does not come under the words

“exhibits any object” contained in section 509, which is the part

of the section on which the conviction rests. No doubt the word

“exhibit” does ordinarily express the idea of actually showing a

thing to a person. On the other hand, such showing need not be

immediate. It was admitted by Mr. Sopher that “exhibit” was

practically equivalent to the word “expose”, and a thing can be

exhibited or exposed to a person, although at first it may be

wrapped in something which prevents that person from actually

seeing the object contained in the wrapper.

xxx

…In the present case, the accused did not himself go to the

complainant and show her the letter, but he employed the agency

of the Post Office for the purpose of securing its receipt by her.

The natural result of his posting the letter would be its receipt by

the addressee and her opening the envelope and seeing its

contents. In my opinion, the fact that the accused used these

means for letting the complainant see the letter, instead of

himself taking it and showing it to her is immaterial. The maxim

qui facit per alium per se is one entirely applicable to the present

circumstances; and the mere fact that the letter was in a closed

envelope before it reached the complainant, and that the accused

did not himself tear open that envelope but that this was done by

the complainant, does not prevent it being a case falling within

the meaning of the words “exhibits any object”.”

8.13) In the case of M. M. Harries Vs. State of Kerala (supra) the

Learned Single Judge, while holding that a bunch of anonymous letters

received by a woman containing offensive and foul words, outraging her

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modesty falls within the scope and ambit of the offense under Section 509

of the I.P.C., observed as follows:

“8. …But, what does the expression ‘gesture’ actually mean?

Lord Denning, an English Judge cautioned in Seaford Court

Estates’s case (vide 1949 2 A11. E.R. 155) that ‘the English

language is not an instrument of mathematical precision’. To an

Indian Judge, English is even more intrinsic being a foreign

language. So, to understand the real meaning of an English

word, I shall safely depend upon the dictionary first.

9. A reference to the dictionary is inevitable in this case

because the word ‘gesture’ not defined under the Indian Penal

Code. The meaning of the word ‘gesture’ as per Concise Oxford

Dictionary, eighth edition is, “a significant movement of a limb or

the body; the use of such movements esp. to convey feeling or as

a rhetorical device; an act to evoke a response or convey

intention”. As per Collins Cobuild ‘English Dictionary for

advanced learners’ third edition, ‘gesture’ is “something that you

say or do in order to express your attitude or intentions, often

something that you know will not have much effect”. As per Law

Lexicon, the word ‘gesture’ means “a posture or movement of the

body; an action expressive of the sentiment or passion of

intended to show inclination or disposition”.

10. It is thus clear from the above discussion that the word

‘gesture’ refers not merely to body signs. Though the word

‘gesture’ is ordinarily used to mean movement of the limbs or

body to convey a person’s feelings, it can also connote an act

done by a person to convey his intentions. According to

dictionary meaning, an act done by a person to express his

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attitude or intentions also is a ‘gesture’. A person can express his

attitude or convey his intentions in a number of ways. For

example, by speaking, giving, looking, writing etc., etc. In that

sense of the word, a person can make a gesture by doing an act

without involving any body signs.

xxx

13. But the question is whether the interpretation of the

expression ‘making gesture’ referred to in Section 509 I.P.C.,

going by the mere dictionary-meaning will in any way be in

conflict with the intention of the legislature or whether it will be

in consonance with the same. While answering this question, I

shall bear in mind, the cardinal principles which are to be

followed in interpreting a word or expression in a statute. As

observed in Chief Justice of A.P. v. L.V.A. Dixitulu

MANU/SC/0416/1978: (1979) 2 S.C.C. 34 “the primary

principle of interpretation is that a constitutional or statutory

provision should be construed ‘according to the intent of they

that made it’(Coke). Normally, such intent is gathered from the

language of the provision”.

xxx

18. Later, legislature found that a woman must be protected