Law Web: Whether a person can be held guilty for an offence of stalking if he installs CCTV camera towards the house of a lady?

Section 354-D of IPC reads as under:-

354-D. Stalking.—(1) Any man who—

(i) follows a woman and contacts, or attempts to contact

such woman to foster personal interaction repeatedly

despite a clear indication of disinterest by such woman;

(ii) monitors the use by a woman of the internet, email or

any other form of electronic communication,

commits the offence of stalking:

{Para 17}

18. It is apparent from the bare perusal of the Section

that a person should have followed a woman or contacted such

woman to foster personal interaction or should have monitored

the use by the woman of the internet, email or any other form of

electronic communication. The case of the informant is that

petitioner No.1 has installed a CCTV camera and she suspects

that petitioner No.1 and his son are watching her with the help of

the CCTV camera. There is no proof that the CCTV Camera is

directed towards the house of the informant and it is merely a

suspicion. Further, there is no proof that the petitioners/accused

had contacted the informant to foster a personal relationship.

The petitioner nowhere stated any attempt was made to contact

her to foster any personal relationship with her. The informant

did not state that she was using the internet, e-mail or any other

form of electronic communication and petitioner No.1 was

monitoring such activity. Therefore, the contents of FIR do not

satisfy the ingredients of Section 354-D of IPC. It was laid down

by Kerala High Court in Jai Prakash Vs. Shiva Devi 2023 Kerala

37594 that merely calling a woman on the phone does not satisfy

the ingredients of Section 354-D unless there is an attempt to

foster personal interaction.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No. 993 of 2022

Sumehar Chand Narwal and others Vs State of H.P. and others

Coram

Hon’ble Mr. Justice Rakesh Kainthla, Judge.

Date of Decision: 10.01.2024.

The informant-respondent No. 2 made a complaint

to the police stating that she is residing in a house constructed

by her father-in-law. Petitioner No.1 Sumer Narwal has

constructed a house on the upper side of the informant’s house.

The house of the petitioner No.1 has 4-5 storeys. He has

installed a CCTV camera in the courtyard of his balcony which is

facing the lintel of the house of the informant. The informant

keeps her clothes, undergarments etc. on the lintel for drying

them. She suspected that Sumer Narwal and his sons were

watching her with a CCTV camera due to which she could not go

to the roof of her house. The informant’s husband asked the

petitioner Sumer Narwal to remove the CCTV camera or to

change its direction to his house. Complaints were made to the

police and the police had also asked Sumer Narwal to remove the

CCTV camera. He was also asked to show the focus/footage in

the control panel/mobile but Sumer Narwal refused to do so.

Police registered FIR No. 213 of 2020 and conducted the

investigation. After the completion of the investigations, the

challan was prepared and presented before the Court.

2. The petitioners have filed the present petition for

quashing of the FIR and the challan pending before the Court of

learned Judicial Magistrate, First Class-V, Shimla. It was

asserted that the FIR was filed to harass the petitioners.

Petitioner No.1 is a respectable member of the family and his

relatives hold respectable positions in the society. Petitioners

No.2 and 3 are the sons of petitioner No.1. The FIR was lodged to

harass them and spoil their careers. A civil dispute is pending

between the parties regarding the boundaries of the land. A civil

suit No. 119 of 2020 was filed by the wife of petitioner No.1, titled

Manjusha Narwal Vs. Munshi Ram in the Court of learned Civil

Judge, Senior Division, Court No.1, Shimla. This dispute arose in

the year 2012 and was settled by way of a Compromise Deed,

dated 21.3.2013. The informant filed the present FIR after

violating the terms of the compromise. The wife of petitioner

No.1 also sent a legal notice to the informant’s family members.

She had also served another notice in which she apprehended

that she and her family members would be falsely implicated.

The police did not conduct the proper investigation as is

apparent from the entries in the Daily Diary annexed to the

petition. The construction work was going on at the time of the

registration of the FIR and the CCTV camera was installed to

monitor the same. The allegations in the FIR do not constitute

any offence. The witnesses are making false statements to help

the informant. Petitioner No.1 is the owner of the building where

the camera is installed. The camera was installed by petitioner

No.1’s wife for the surveillance of the entrance gallery six

months before lodging of the FIR. Petitioner No. 1 and his wife

have two residences and their stay in the building is casual.

Hence it became necessary to have surveillance of the building.

The petitioners would have hidden the camera had they got any

bad intentions. The police conducted a biased investigation. The

complaint was the counterblast to teach the petitioners a lesson

for filing the civil suit. Therefore, they prayed that the present

petition be allowed and the FIR and consequent proceedings

arising out of the same be quashed.

3. Respondent No.1 filed a reply making preliminary

submissions regarding lack of maintainability and the

petitioners having not come to the Court with clean hands. It

was asserted that a cognizable offence was disclosed and FIR No.

213 of 2020, dated 11.10.2020 was registered for the commission

of an offence punishable under Section 354-D of IPC. The police

recorded the statement of witnesses and added Sections 504,

506 and 509 of IPC. The petitioners did not produce the CCTV

camera and the device, therefore, Section 201 of IPC was added.

The challan has been filed and is pending trial before the Court

of learned Judicial Magistrate, First Class-5, Shimla. The

offences are punishable under Sections 354-D, 504, 506, 509

and 201 of IPC which are heinous and serious in nature and are

against the public at large. The investigation was done properly

and there was no bias. The petitioners have not come to the

Court with clean hands. Hence, it was prayed that the present

petition be dismissed.

4. Respondent No.4 filed a separate reply denying the

contents of the petition. It was asserted that respondent No. 4

has been unnecessarily arrayed as a party. Fair accurate

reporting of the FIR is privileged. The newspaper report does not

disclose the name and identity of the petitioners. FIR is a public

document available in the public domain. The Press and Media

are free to comment on the same. There was no bias against any

person. No notice was ever served upon the respondent. Hence,

it was prayed that the present petition be dismissed.

5. Separate rejoinders denying the contents of the

replies and affirming those of the petition were filed.

6. I have heard Mr Sunil Kumar, learned Counsel for the

petitioners, Mr R.P. Singh, learned Deputy Advocate General for

respondents No. 1 and 3-State, Ms Meera Devi, Advocate,

learned Legal Aid Counsel for respondent No.2 and Mr. Prince

Chauhan, learned counsel for respondent No. 4.

7. Mr. Sunil Kumar, learned Counsel for the petitioners

submitted that the ingredients of Section 354-D of IPC are not

satisfied in the present case. The CCTV camera was installed for

the protection of the petitioner’s property. Civil disputes are

pending between the parties. The reports were made to the

police regarding unauthorized construction which is evident

from the entries in the daily diary. However, the police did not

take any action which shows its biased attitude towards the

petitioners. The continuation of the proceedings will amount to

an abuse of the process of the Court. Hence, it was prayed that

the FIR and present proceedings be quashed.

8. Mr R.P. Singh, learned Deputy Advocate General for

respondents No.1 and 3-State submitted that the police

conducted the investigation fairly. The challan has been filed

before the learned Trial Court and the remedy of the petitioners

lies in approaching the learned Trial Court seeking their

discharge. The petition under Section 482 of Cr.P.C. is not

maintainable after filing of the charge sheet. The contents of the

FIR prima facie satisfy the ingredients of Section 354-D of IPC.

Hence, he prayed that the present petition be dismissed.

9. Ms. Meera Devi, learned Legal Aid Counsel for

respondent No. 2 adopted the submissions of Mr. R.P. Singh and

submitted that the act of the petitioners fell within the

definition of the stalking and learned Trial Court had rightly

taken action against the petitioners. Hence, she prayed that the

petition be dismissed.

10. Mr Prince Chauhan, learned counsel for respondent

No. 4 submitted that respondent no. 4 is a newspaper which has

no concern with the private dispute pending between the

petitioners and the informant. It was wrongly impleaded as a

party. Hence, he prayed that the present petition be dismissed.

11. I have given considerable thought to the submissions

at the bar and have gone through the records carefully.

12. The principles of exercising the jurisdiction under

Section 482 of Cr.P.C. were laid down by the Hon’ble Supreme

Court in Supriya Jain v. State of Haryana, 2023 SCC OnLine SC 765 :

(2023) 7 SCC 711 wherein it was observed at page 716:-

17. The principles to be borne in mind with regard to the

quashing of a charge/proceedings either in the exercise of

jurisdiction under Section 397CrPC or Section 482CrPC or

together, as the case may be, has engaged the attention of

this Court many a time. Reference to each and every

precedent is unnecessary. However, we may profitably

refer to only one decision of this Court where upon a

survey of almost all the precedents on the point, the

principles have been summarised by this Court succinctly.

In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh

Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1

SCC (Cri) 986], this Court laid down the following guiding

principles : (SCC pp. 482-84, para 27)

“27. …27.1. Though there are no limits to the

powers of the Court under Section 482 of the Code

but the more the power, the more due care and

caution is to be exercised in invoking these powers.

The power of quashing criminal proceedings,

particularly, the charge framed in terms of Section

228 of the Code should be exercised very sparingly

and with circumspection and that too in the rarest

of rare cases.

27.2. The Court should apply the test as to whether

the uncontroverted allegations as made from the

record of the case and the documents submitted

therewith prima facie establish the offence or not.

If the allegations are so patently absurd and

inherently improbable that no prudent person can

ever reach such a conclusion and where the basic

ingredients of a criminal offence are not satisfied

then the Court may interfere.

27.3. The High Court should not unduly interfere.

No meticulous examination of the evidence is

needed for considering whether the case would end

in conviction or not at the stage of framing of

charge or quashing of charge.

27.4. Where the exercise of such power is absolutely

essential to prevent patent miscarriage of justice

and for correcting some grave error that might be

committed by the subordinate courts even in such

cases, the High Court should be loath to interfere,

at the threshold, to throttle the prosecution in the

exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in

any of the provisions of the Code or any specific law

in force to the very initiation or institution and

continuance of such criminal proceedings, such a

bar is intended to provide specific protection to an

accused.

27.6. The Court has a duty to balance the freedom of

a person and the right of the complainant or

prosecution to investigate and prosecute the

offender.

27.7. The process of the court cannot be permitted

to be used for an oblique or ultimate/ulterior

purpose.

27.8. Where the allegations made and as they

appeared from the record and documents annexed

therewith to predominantly give rise to and

constitute a “civil wrong” with no “element of

criminality” and does not satisfy the basic

ingredients of a criminal offence, the court may be

justified in quashing the charge. Even in such cases,

the court would not embark upon the critical

analysis of the evidence.

27.9. Another very significant caution that the

courts have to observe is that it cannot examine the

facts, evidence and materials on record to

determine whether there is sufficient material on

the basis of which the case would end in a

conviction; the court is concerned primarily with

the allegations taken as a whole whether they will

constitute an offence and, if so, is it an abuse of the

process of court leading to injustice.

27.10. It is neither necessary nor is the court called

upon to hold a full-fledged enquiry or to appreciate

evidence collected by the investigating agencies to

find out whether it is a case of acquittal or

conviction.

27.11. Where allegations give rise to a civil claim

and also amount to an offence, merely because a

civil claim is maintainable, does not mean that a

criminal complaint cannot be maintained.

27.12. In the exercise of its jurisdiction under

Section 228 and/or under Section 482, the Court

cannot take into consideration external materials

given by an accused for reaching the conclusion

that no offence was disclosed or that there was the

possibility of his acquittal. The Court has to

consider the record and documents annexed

therewith by the prosecution.

27.13. Quashing of a charge is an exception to the

rule of continuous prosecution. Where the offence

is even broadly satisfied, the Court should be more

inclined to permit a continuation of prosecution

rather than its quashing at that initial stage. The

Court is not expected to marshal the records with a

view to deciding the admissibility and reliability of

the documents or records but is an opinion formed

prima facie.

27.14. Where the charge sheet, reported under

Section 173(2) of the Code, suffers from

fundamental legal defects, the Court may be well

within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where

the Court finds that it would amount to an abuse of

process of the Code or that the interest of justice

favours, otherwise it may quash the charge. The

power is to be exercised ex debito justitiae i.e. to do

real and substantial justice for administration of

which alone, the courts exist.

27.16. These are the principles which individually

and preferably cumulatively (one or more) be taken

into consideration as precepts to exercise

extraordinary and wide plenitude and jurisdiction

under Section 482 of the Code by the High Court.

Where the factual foundation for an offence has

been laid down, the courts should be reluctant and

should not hasten to quash the proceedings even on

the premise that one or two ingredients have not

been stated or do not appear to be satisfied if there

is substantial compliance with the requirements of

the offence.”

13. Similar is the judgment in Gulam Mustafa v. State of

Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:-

26. Although we are not for verbosity in our

judgments, a slightly detailed survey of the judicial

precedents is in order. In State of Haryana v. Bhajan

Lal, 1992 Supp (1) SCC 335, this Court held:

“102. In the backdrop of the interpretation of the

various relevant provisions of the Code under Chapter

XIV and of the principles of law enunciated by this

Court in a series of decisions relating to the exercise of

the extraordinary power under Article 226 or the

inherent powers under Section 482 of the Code which

we have extracted and reproduced above, we give

the following categories of cases by way of illustration

wherein such power could be exercised either to

prevent abuse of the process of any court or otherwise

to secure the ends of justice, though it may not be

possible to lay down any precise, clearly defined and

sufficiently channelised and inflexible guidelines or

rigid formulae and to give an exhaustive list of

myriad kinds of cases wherein such power should be

exercised.

(1) Where the allegations made in the first information

report or the complaint, even if they are taken

at their face value and accepted in their entirety do

not prima facie constitute any offence or make out a

case against the accused.

(2) Where the allegations in the first information report

and other materials, if any, accompanying the FIR

do not disclose a cognizable offence, justifying an

investigation by police officers under Section 156(1)

of the Code except under an order of a Magistrate

within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the

FIR or complaint and the evidence collected in

support of the same do not disclose the commission

of any offence and make out a case against the

accused.

(4) Where the allegations in the FIR do not constitute a

cognizable offence but constitute only a noncognizable

offence, no investigation is permitted by

a police officer without an order of a Magistrate as

contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint

are so absurd and inherently improbable on the

basis of which no prudent person can ever reach a

just conclusion that there is sufficient ground for

proceeding against the accused.

(6) Where there is an express legal bar engrafted in any

of the provisions of the Code or the concerned Act

(under which a criminal proceeding is instituted) to

the institution and continuance of the proceedings

and/or where there is a specific provision in the

Code or the concerned Act, providing efficacious

redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended

with mala fide and/or where the proceeding is

maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view

to spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the

power of quashing a criminal proceeding should be

exercised very sparingly and with circumspection and

that too in the rarest of rare cases; that the court will

not be justified in embarking upon an enquiry as to the

reliability or genuineness or otherwise of the

allegations made in the FIR or the complaint and that

the extraordinary or inherent powers do not confer an

arbitrary jurisdiction on the court to act according to its

whim or caprice.” (emphasis supplied)

14. It was laid down in CBI v. Aryan Singh, 2023 SCC

OnLine SC 379, that the High Court cannot conduct a mini-trial

while exercising jurisdiction under Section 482 of Cr.P.C. The

allegations are required to be proved during the trial by leading

evidence. It was observed:

10. From the impugned common judgment and order

passed by the High Court, it appears that the High Court

has dealt with the proceedings before it, as if, the High

Court was conducting a mini-trial and/or the High Court

was considering the applications against the judgment and

order passed by the learned Trial Court on conclusion of

trial. As per the cardinal principle of law, at the stage of

discharge and/or quashing of the criminal proceedings,

while exercising the powers under Section 482 Cr. P.C., the

Court is not required to conduct the mini-trial. The High

Court in the common impugned judgment and order has

observed that the charges against the accused are not

proved. This is not the stage where the

prosecution/investigating agency is/are required to prove

the charges. The charges are required to be proved during

the trial based on the evidence led by the

prosecution/investigating agency. Therefore, the High

Court has materially erred in going into detail in the

allegations and the material collected during the course of

the investigation against the accused, at this stage. At the

stage of discharge and/or while exercising the powers

under Section 482 Cr. P.C., the Court has very limited

jurisdiction and is required to consider “whether any

sufficient material is available to proceed further against

the accused for which the accused is required to be tried or

not”.

11. One other reason pointed out by the High Court is that

the initiation of the criminal proceedings/proceedings is

malicious. At this stage, it is required to be noted that the

investigation was handed over to the CBI pursuant to the

directions issued by the High Court. That thereafter, on

conclusion of the investigation, the accused persons have

been charge-sheeted. Therefore, the High Court has erred

in observing at this stage that the initiation of the criminal

proceedings/proceedings is malicious. Whether the

criminal proceedings was/were malicious or not, is not

required to be considered at this stage. The same is

required to be considered at the conclusion of the trial. In

any case, at this stage, what is required to be considered is

a prima facie case and the material collected during the

course of the investigation, which warranted the accused to

be tried.

15. This position was reiterated in Abhishek v. State of

M.P. 2023 SCC OnLine SC 1083 wherein it was observed:

12. The contours of the power to quash criminal

proceedings under Section 482 Cr. P.C. are well defined.

In V. Ravi Kumar v. State represented by Inspector of Police,

District Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC

568], this Court affirmed that where an accused seeks

quashing of the FIR, invoking the inherent jurisdiction of

the High Court, it is wholly impermissible for the High

Court to enter into the factual arena to adjudge the

correctness of the allegations in the complaint.

In Neeharika Infrastructure (P). Ltd. v. State of

Maharashtra [Criminal Appeal No. 330 of 2021, decided on

13.04.2021], a 3-Judge Bench of this Court elaborately

considered the scope and extent of the power under

Section 482 Cr. P.C. It was observed that the power of

quashing should be exercised sparingly, with

circumspection and in the rarest of rare cases, such

standard not being confused with the norm formulated in

the context of the death penalty. It was further observed

that while examining the FIR/complaint, quashing of

which is sought, the Court cannot embark upon an

enquiry as to the reliability or genuineness or otherwise

of the allegations made therein, but if the Court thinks fit,

regard being had to the parameters of quashing and the

self-restraint imposed by law, and more particularly, the

parameters laid down by this Court in R.P. Kapur v. State of

Punjab (AIR 1960 SC 866) and State of Haryana v. Bhajan

Lal [(1992) Supp (1) SCC 335], the Court would have

jurisdiction to quash the FIR/complaint.

16. It is apparent from these judgments that power

under Section 482 of Cr.P.C. can be exercised to prevent the

abuse of process or secure the ends of justice. The Court can

quash the F.I.R. if the allegations do not constitute an offence or

make out a case against the accused. However, it is not

permissible for it to conduct a mini-trial to arrive at such

findings.

17. Section 354-D of IPC reads as under:-

354-D. Stalking.—(1) Any man who—

(i) follows a woman and contacts, or attempts to contact

such woman to foster personal interaction repeatedly

despite a clear indication of disinterest by such woman;

(ii) monitors the use by a woman of the internet, email or

any other form of electronic communication,

commits the offence of stalking:

Provided that such conduct shall not amount to stalking if

the man who pursued it proves that—

(i) it was pursued for the purpose of preventing or

detecting crime and the man accused of stalking had been

entrusted with the responsibility of prevention and

detection of crime by the State; or

(ii) it was pursued under any law or to comply with any

condition or requirement imposed by any person under

any law; or

(iii) in the particular circumstances such conduct was

reasonable and justified.

(2) Whoever commits the offence of stalking shall be

punished on the first conviction with imprisonment of

either description for a term which may extend to three

years, and shall also be liable to fine; and be punished on

a second or subsequent conviction, with imprisonment of

either description for a term which may extend to five

years, and shall also be liable to fine.