'Perpetrator' U/S 354C IPC Excludes Victim's Sexual Partner In Consensual Relationship: Telangana High Court

The Telangana High Court has held that ‘any man’ ‘perpetrator’ or ‘person on the behest of the perpetrator’ mentioned under section 354-C of the IPC (voyeurism) does not include an individual with whom the woman was consensually having a sexual relationship with.

Justice K Surender added that the videos had not been disseminated to any third parties, as per the findings of the Sessions Judge thus failing to meet another criteria under Section 354-C.

“On a plain reading of Section 354-C of IPC, the three categories of persons mentioned in the section, ‘any man’, ‘perpetrator’ or ‘any other person at the behest of the perpetrator’ would not mean the person with whom the women engages in the sexual act. The wording of Section 354-C ‘where she would usually have the expectation of not being observed’ would exclude the person who engages in the sexual act. ‘perpetrator’ or ‘any other person at the behest of the perpetrator’ cannot be the person with whom the woman is engaged in sexual act with her consent.”

The Court was hearing an appeal filed by the accused against the orders of the Sessions Court, wherein the accused was convicted under section 354-C and acquitted under section 376(1) and 506 of the IPC.

The prosecution's case is that the victim was having an extramarital affair with the accused, who owned a video recording studio. The victim would give her husband sleeping pills to meet the accused in his studio. The accused was recording the victim while they had sexual intercourse, with her consent initially, and later on, even when the victim had refused the recording, the accused recorded her anyway.

After about 8 months or so, the victim had a change of heart and wanted to end the extramarital affair with the accused. However, the accused did not agree and threatened to spread the videos taken of the victim if she did not oblige him.

The victim thus filed a complaint against the appellant. The police conducted an investigation, leading to a charge sheet that included offences under Sections 354-C, 376, and 506 of the IPC, as well as Sections 66 and 67 of the Information Technology Act. However, the Sessions Judge determined that only the offence under Section 354-C was established and acquitted the appellant of the other charges.

The Sessions Judge's findings indicated that there was an extramarital sexual relationship between the victim and the appellant. The videos were not disseminated electronically, and although the victim initially consented to being filmed during sexual acts, she later refused. The appellant continued to record, resulting in the offence under Section 354-C.

While setting aside the conviction of the accused under section 354-C, Justice Surender held:

“Admittedly as found by the learned Sessions Judge the victim PW1 has an extra marital affair and consented to sexual intercourse over a period of time with the appellant and the filming was done when she was having sexual intercourse 8 willingly. In the said circumstances the appellant cannot be held liable for Voyeurism”

Justice K Surender clarified, that if the recordings, even if taken consensually were disseminated, the act of dissemination would attract the offence under section 354-C. However, in the present case, the recordings were never shared.

“In the event of the victim consenting to capture images or any act but not consenting to spread or release (dissemination) to third persons and if such image or acts are disseminated, such dissemination shall be considered an offence. In the present case, even according to the finding of the learned Sessions Judge, the video recordings were never shared or sent to anyone. By virtue of Explanation 2 also, no offence is made out.”

It was found that none of the elements required to establish the offence under Section 354-C were met by the appellant.

As a result, the impugned judgment was overturned. Additionally, the appellant, who had been on bail, had his bail bonds cancelled.

Case Title: Balabathula Shiva Kumar v. State of Telangana

Case No: Criminal Appeal No.62 OF 2022

Counsel for the Petitioner: Shaik Madar

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