Shwetha Menon vs State Of Kerala, Represented By Public Prosecutor

C.S.Dias, J

To malign the character of a woman without any foundation or substance is a pernicious form of social violence,  for  while  it  is  easily  uttered,  the  stigma  it  leaves behind is often indelible.

The petitioner, who is said to be a national cine actor, former  Miss  India  and  a  candidate  to  the  post  of  President to the Association of Malayalam Movie Artists, has approached  this  Court,  invoking  its  inherent  jurisdiction, to quash the First Information Report and all further proceedings in Crime No. 1075/2025 registered by the Ernakulam Central Police Station, alleging that the petitioner has committed the offences punishable under Sections 3 and 5 of the Immoral Traffic (Prevention) Act, 1956 (‘ITP Act’, for brevity) and Section 67 (A) of the Information  Technology  Act,  2000  (‘IT  Act’,  for  short).  The FIR has been registered on the basis of a private complaint (Annexure-1)  filed  by  the  second  respondent  (complainant) before the Court of Chief Judicial Magistrate, Ernakulam (‘learned Magistrate’), who had forwarded the complaint to the police under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The gravamen of the allegation in the complaint is summarised as follows:

The  complainant,  who  claims  to  be  a social  worker  and journalist, alleges that the accused (petitioner) is a cine actress  who  acts  in  a vulgar  and  nude  manner  in  films  and advertisements,  and  uploads  such  content  on  pornographic websites and social media platforms, projecting herself as a porn star for financial gain. The accused also circulates pornographic videos involving minor girls, participates in sex marketing, and provides contact numbers to lure customers. The accused had also given an interview regarding her advertisement for condoms, which has 30 crore  viewers.  The  explicit  photographs  and  X-rated  videos of  the accused are  available online.  There  is an  organised network that operates the online content, with the knowledge,  consent,  and  participation  of the  accused.  The accused's actions are destroying the society. The complainant  has  seen  the  accused's  videos.  This  Court  may order the removal of the obnoxious online content for the benefit of society. Though complaints were submitted to the jurisdictional police and the City Police Commissioner, no action has been taken in the matter. The accused has committed the offences under Section 67A of the IT Act and Sections 3 and 5 of the IMT Act.

I have heard Sri. M. Revikrishnan, the learned counsel appearing for the petitioner and Smt. Seetha. S, the learned  Public  Prosecutor.  Although  the  notice  was  served on the second respondent, he has not appeared.

The learned counsel for the petitioner submits that the allegations in the complaint and the FIR, even if accepted at their face value, do not disclose the commission of any offence. The complaint is a frivolous and malicious litigation filed with an oblique intention of preventing the petitioner from contesting the election to the post of president of the Association of Malayalam Movie Artists, which was held on 15.08.2025. The timing of the filing of the complaint on the last date for the withdrawal of nomination for the election clearly reveals the mala fide intention of the second respondent. The learned Counsel further submits that the learned Magistrate, unmindful of the vexatious nature of the complaint and without any application of mind, has mechanically forwarded the complaint to the police, who, in turn, registered the FIR. The petitioner has earned a good name and reputation in the Society and leads a happy family life. The complaint does  not  contain  the  rudimentary  ingredients  to  attract  the offences alleged. Hence, the complaint and the FIR may be quashed.

The learned Public Prosecutor, though not seriously opposing the Criminal Miscellaneous Case (‘Crl. M.C’, for short),  submits  that  the  investigation  is  only  at  the  nascent stage. Therefore, this Court may be slow in quashing the complaint to enable the investigating officer to complete the investigation.

When the Crl. M.C came up for admission, this Court had called for a report from the learned Magistrate to ascertain the procedure that was followed in forwarding the complaint to the police.

The  learned  Magistrate  has  reported  that,  as  the complaint contains an allegation regarding child pornography, the scope of the enquiry by the court is limited  and,  therefore,  the  complaint  was  forwarded  to  the police for investigation.

The specific allegation in the complaint is that the petitioner has committed the offences under Sections 3 and 5 of the ITP Act and Section 67(A) of the IT Act.

In order to appreciate the tenability of the allegations,  it  is  necessary  to  examine  Sections  3  and  5  of the  Immoral  Traffic  (Prevention)  Act,  1956,  which  reads  as follows:

“3. Punishment for keeping a brothel or allowing premises to be used as a brothel.—(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than  one  year  and  not  more  than  three  years  and  also  with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment  for  a term of  not  less  than  two years  and  not more than five years and also with fine which may extend to two thousand rupees.

(2) Any person who—

(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or

(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with  fine  which  may  extend  to  two  thousand  rupees  and  in the event of a second or subsequent conviction, with rigorous  imprisonment  for  a term  which  may  extend  to  five years and also with fine. 8

[(2A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred  to  in  clause  (a)  or  clause  (b)  of  that  sub-section,  is knowingly  allowing  the  premises  or  any  part  thereof  to  be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if,—

(a) a report is published in a newspaper having circulation  in  the  area  in  which  such  person  resides  to  the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or

(b) a copy of the list of all things found during the search referred to in clause (a) is given to such person.]

(3) Notwithstanding anything contained in any other law  for  the  time  being  in  force,  on  conviction  of  any  person referred to in clause (a) or clause (b) of sub-section (2) of any offence  under  that  sub-section  in  respect  of  any  premises  or any  part  thereof,  any lease  or  agreement  under  which  such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.

*** *** *** *** ***

Procuring, inducing or taking [person] for the sake of prostitution.— (1) any person who—

(a) procures or attempts to procure a [person], whether with  or  without  his  consent,  for  the  purpose  of  prostitution;

or

(b) induces a [person] to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel; or

(c) takes or attempts to take a [person], or causes a [person] to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution;

or

(d) causes or induces a [person] to carry on prostitution;

[shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more  than  seven  years  and  also  with  fine  which  may  extend to two thousand rupees and if any offence under this sub- section is committed against the will of any person, the punishment  of  imprisonment  for  a  term  of  seven  years  shall extend to imprisonment for a term of fourteen years:

Provided that if the person in respect of whom an offence committed under this sub-section,—

(i)  is  a  child,  the  punishment  provided  under  this  sub- section  shall extend to rigorous  imprisonment  for a term of not less than seven years but may extend to life; and

(ii)  is  a  minor,  the  punishment  provided  under  this  sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;]

(3) An offence under this section shall be triable—

(a) in the place from which a 1[person] is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such 1[person] is made; or

(b)  in  the  place  to  which  he  may  have  gone  as  a  result  of  the inducement or to which he is taken or caused to be taken or an attempt to take him is made.

A plain reading of Sections 3 and 5 of the Act unambiguously demonstrates that the above offences are attracted  only  when  there  is  an  allegation  that  the  accused has  either  maintained  a brothel,  permitted  her  premises  to be used as a brothel or has procured, induced or taken any person for the sake of prostitution.

Upon  a careful  examination  of  the  allegations  in the complaint, this Court finds that there is not a whisper in the complaint suggesting that the petitioner is running a brothel or allowing her premises to be used as a brothel, or is procuring, inducing or taking any person for prostitution. The complaint only contains a vague and bald allegation that the petitioner is involved in ‘sex marketing’. Such a sweeping and unsubstantiated allegation, devoid of any material or prima facie proof, is insufficient to attract the above offences under the ITP Act.

In  the  context  of  the  allegations  in  the  complaint,  it is  also  necessary  to  refer  to  Section  67A of  the  Information Technology Act, 2000, which reads thus:

“67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.– Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first  conviction  with  imprisonment  of  either  description  for  a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description  for  a  term  which  may  extend  to  seven  years  and also with fine which may extend to ten lakh rupees”.

Section 67A criminalises publication, transmission, or  causing  to  publish  or  transmit  - in  electronic  form  - any material that contains a sexually explicit act or conduct. Though the three expressions “sexually explicit”, “act” or“conduct”  are  open  -  textured  and  are  to  be  understood  in the  broader  context  of  obscenity,  the  expressions  are  to  be seen in the context of 'obscenity'  as provided in Section 67 of  the  Act.  Therefore,  Sections  67A  and  67  have  to  be  co- jointly read. The mere existence of content with sexual connotations does not automatically attract a penal offence. A sexually  explicit  act  or  depiction  may  not  necessarily  be lascivious or intended to appeal to prurient interests. In certain contexts, the effects of an artistic expression may be viewed differently. The Hon’ble Supreme Court has laid down  the  principles  in  a plethora  of  precedents.  (Read  the decision  of  the  Hon’ble  Supreme  Court  in  Apoorva  Arora  v. State (Govt of NCT of Delhi)–2024 KHC 6153).

In S. Khushboo v. Kanniammal (2010 (5) SCC 600), the Hon’ble Supreme Court, while considering the question of  quashing  a FIR  filed  against  the  accused  for  committing an offence under S.292 of the Indian Penal Code, on the allegation  that  accused  gave  an  interview  in  a magazine  to socially accept premarital sex, especially in live - in relationships, and cautioned women to take adequate protection to prevent unwanted pregnancies and sexually transmitted infections, held that no offence was made out under S.292 as the content was not lascivious (i.e., expressing or causing sexual desire); does not appeal to the prurient  interest  (i.e.,  excessive  interest  in  sexual  matters); and does not have the effect of tending to deprave and corrupt persons who are likely to read, hear, or see the material. It was held that obscenity must be gauged with respect  to contemporary  community  standards  that  reflect the sensibilities as well as the tolerance levels of an average reasonable person. Accordingly, the FIR was quashed.

Now  coming  back  to  the  case  at  hand,  there  are  no allegations in the complaint that the petitioner has published or transmitted in electronic form any material that contains a sexually explicit act. The only bald allegation is that, it is with the petitioner’s knowledge, consent and participation  that some pornography sites  are functioning; there  is  not  a  scrap  of  paper  to  prima  facie  prove  the  wild and  reckless  imputation.  Undisputedly,  the  three  films  and the advertisement referred to in the complaint, in which the petitioner had acted, were produced and exhibited after obtaining the requisite statutory certifications and permissions from the competent authorities. No statutory authority has raised an objection that the films or advertisement  of  the  petitioner  published  or  transmitted  in electronic form contain a sexually explicit act or conduct. There is also no material or iota of proof to prima facie establish that the online websites are managed with the petitioner’s knowledge or participation, other than for the second respondent’s solitary allegation in the complaint.

This Court finds considerable force in the submission of the learned counsel for the petitioner that the complaint was filed with the sole intention of stalling the petitioner from contesting for the post of President in the Association of Malayalam Movie Artists, that too on the eve of withdrawal of nominations. The timing of the filing of the complaint strongly indicates its mala fide and vexatious nature.

It is often said that when a woman attains name, fame,  and  recognition  in  public  life,  attempts  to  defeat  her on the basis of reasons, logic, or merit may turn difficult. Then, social shaming is the frequently deployed weapon. When  a society focuses more  on a woman’s  image than her achievements, it exposes its own intellectual poverty. Progressive  societies  evaluate  people  on  the  basis of their actions and contributions; regressive societies resort to slander, character assassination and moral policing. The empowerment of women does not mean that they should be made  saints,  but  recognising  their  individuality,  aspirations and accomplishments with dignity and fairness. The society that tolerates the vilification of a woman out of envy or malice is nothing but an embodiment of injustice.

In the celebrated decision in State of Haryana and others  v.  Bhajan  Lal  and  others  [(1992)  Supp  (1)  SCC  335], the  Hon’ble  Supreme  Court  has  laid  down  the  principles  to quash a criminal proceeding by exercising the inherent powers of this Court under Section 482 of the Code of Criminal  Procedure/528 of the BNSS. The salient principles to quash a complaint are, if the allegations in the complaint are taken at their face value, they do not attract the offence;  or,  if  the  proceedings  are  manifestly  attended  with mala fides or an intention to wreak vengeance, the inherent power can be exercised.

In Inder Mohan Goswami and Another v. State of Uttaranchal and others [(2007) 12 SCC 1], the Hon’ble Supreme  Court  has  held  that  the  Courts  must  ensure  that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused.

Similarly, in Vishal Noble Singh v. State of Uttar Pradesh and Another [(2024) SCC OnLine SC 1680], the Hon’ble  Supreme  Court  has  observed  that  in  recent  years, the machinery of criminal justice is being misused by certain  persons  for  their  vested  interests  and  for  achieving their oblique motives and agenda. The Courts must be vigilant against such tendencies and ensure that acts of omission and commission that adversely affect the fabric of our society are nipped in the bud.

After carefully analysing the allegations in the complaint,  the  FIR,  the  materials  on  record  and  the  law  on the point, I am convinced that if the allegations in the complaint and the FIR are taken on their face value, the same would not attract the offences alleged against the petitioner, and the prosecution has been lodged by the second respondent with the ulterior motive of tarnishing the name and reputation of the petitioner. Thus, I am satisfied that this is a fit case to exercise the inherent powers of this Court under Section 528 of the BNSS.

In the above conspectus, I allow the Crl. M.C., by quashing Annexure 1 complaint, Annexure 2 FIR and all further  proceedings  in  Crime  No.  1075/2025  registered  by the Ernakulam Central Police Station, as against the petitioner.