whether the conversation between the petitioners in the
television programme can be construed as “sexually coloured remarks” in order to attract the penal provision of “sexual
harassment” of the complainant. I have already observed that
the petitioner Parambrata has specifically clarified that they are
speaking in metaphors, which means that they used words and
phrases in an imaginative way to describe something else in
order to show that the two things have the same qualities and to
make the description more powerful. The Court must examine
the conversation made by the petitioners in the television
programme in the eye of the victim i.e. complainant. It is
relevant to quote the definition of “sexual harassment” given in
Section 2(n) of the Sexual Harassment of Women at Work Place
(Prevention, Prohibition and Redressal) Act, 2013, which is as
follows:
“2.(n) Sexual harassment.- Sexual harassment
includes any one or more of the following unwelcome
acts or behavior (whether directly or by implication)
namely:
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or nonverbal
conduct of sexual nature.”By omitting clause (v) of the above definition of “sexual
harassment” the legislatures have enumerated the penal
provision of “sexual harassment” under Section 354A of Indian
Penal Code as follows:
“354A. Sexual harassment and punishment for
sexual harassment.- (1) A man committing any of the
following acts:
(i) physical contact and advances involving
unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours, or
(iii) showing pornography against the will of a woman;
or
(iv) making sexually coloured remarks, shall be guilty
of the offence of sexual harassment.”
Thus, the “sexually coloured remarks” will come within the
ambit of “sexual harassment” enumerated in section 354A of the
Indian Penal Code. When the petitioner Parambrata has
clarified during conversation in the television programme that
they have been speaking in metaphor about their love to the
complainant, any reasonable and prudent person will
understand what the petitioner Parambrata and the petitioner
Rudranil wanted to mean by playing cricket in the lovely field of
Eden Garden, while one played in the morning and the other
played in the evening, as the Eden Garden did not allow them toplay at a time. This is clearly an innuendo referring to the
sexual relationship with the complainant which has the sexual
flavour to bring the same within the ambit of “sexually coloured
remarks”. The petitioner Parambrata had to give up the
relationship as he was not serious about the relationship, but
he took a chance to enter into the crowded bus being allured by
the bus even when there was no place to sit inside the said bus.
This conversation may give entertainment to the viewers at the
cost of humiliation of the complainant who, as already pointed
out by me, not only belongs to the same profession of the
petitioners, but also the friend of both the petitioners -
Parambrata and Rudranil for more than a decade. Without
considering the compact disc (DVD) for non-compliance of the
provision of Section 65B(4) of the Indian Evidence Act, Learned
Magistrate would have been justified in taking cognizance and
issuing process against the petitioners and other accused
persons for the offence punishable under Sections 354A/34 of
the Indian Penal Code.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
Hon’ble Justice Ranjit Kumar Bag
CRR 1204 of 2016
Jishu Sengupta & Others
V.
State of West Bengal & Anr.
Judgement delivered on : November 4, 2016
R. K. Bag, J.
The petitioners – Rudranil Ghosh, Parambrata Chattopadhyay,
Srijit Mukherjee and Jishu Sengupta have challenged the order
dated February 26, 2016 passed by Learned Chief JudicialMagistrate, Alipore and prayed for quashing of the criminal
proceeding in connection with Complaint Case No.C-827 of 2016
pending before the Court of Learned Chief Judicial Magistrate,
Alipore by preferring two separate revisional applications being
CRR No.1204 of 2016 and CRR No.1212 of 2016. Similarly, the
said petitioners have also challenged the order dated 26.02.2016
passed by Learned Chief Judicial Magistrate, Alipore and prayed
for quashing of the criminal proceeding in connection with
Complaint Case No.C-826 of 2016 pending before the Court of
Learned Chief Judicial Magistrate, Alipore by filing two separate
revisional applications being CRR No.1205 of 2016 and CRR
No.1213 of 2016. Both the criminal prosecutions were initiated
against the petitioners and others at the instance of the
complainant/opposite party no.2 (hereinafter referred to as the
complainant) and the allegations made in the petitions of
complaint arose out of the same incident and as such all the
revisional applications can be disposed of by this common
judgement.
2. The backdrop of all the revisional applications is as follows: The
complainant is a graduate in International Relations andPolitical Science from Jadavpur University in West Bengal and
works for gain at Eros International in Mumbai in the capacity
of creative producer. The petitioner Srijit Mukherjee (hereinafter
referred to as the petitioner Srijit) was the host of “Talk Show”
by name “Shonge Srijit” in the television channel “Colour
Bangla” and he belongs to the group of common friends of the
complainant. The petitioner Rudranil Ghosh (hereinafter
referred to as the petitioner Rudranil) and the petitioner
Parambrata Chattopadhyay (wrongly described as Chatterjee
and hereinafter referred to as the petitioner Parambrata) were
invited as guests to the said “Talk Show” on December 21, 2015
in the television channel “Colour Bangla.” Both the petitioners
Parambrata and Rudranil are good friends of the complainant
for more than one decade. The petitioner Jishu Sengupta
(hereinafter referred to as the petitioner Jishu) was the Producer
and Director of the “Talk Show” named “Shonge Srijit” and he
was responsible for day-to-day affairs and activities of the said
“Talk Show” both in the capacity of Director as well as Producer
of the said television programme. 3. The contents of the petition of complaint filed by the
complainant before the Court of Learned Chief Judicial
Magistrate disclose that on December 21, 2015 at 9:00 p.m. the
petitioner Srijit was making conversation with the petitioners
Parambrata and Rudranil by casting aspersion on the character
and reputation of the complainant and by subjecting the
complainant to “sexual harassment” in the television programme
by name “Shonge Srijit.” By referring to one mannequin as
Rituparna Chowdhury (the complainant) the petitioner Srijit
ascertained from both the petitioners - Parambrata and
Rudranil that they were in love with her for which she would be
immortalised in history. Both the petitioners Rudranil and
Parambrata used metaphors and described how they enjoyed
playing cricket in the play ground of Eden though the play
ground Eden did not allow them to play cricket at a time, while
one played in the morning, another played in the evening.
Again, by using metaphor the petitioner Parambrata laughingly
explained that he was not serious in love though he entered the
bus knowing that the bus is crowded with passengers and
having no place to sit on and ultimately he came to learn fromthe petitioner Rudranil that he was serious in love and the
infatuation of petitioner Parambrata was temporary.
4. According to the complainant, the conversation of the petitioner
Srijit with the petitioners - Parambrata and Rudranil was sexual
innuendo which comes within the ambit of “sexually coloured
remarks” and thereby the complainant was subjected to sexual
harassment. The further case made out by the complainant in
another petition of complaint is that all the petitioners and other
accused persons have intentionally made derogatory remarks
against the complainant, by which the prestige and reputation
of the complainant is lowered down in the eye of her friends and
common people, as the complainant belongs to the same
profession to which the petitioners also belong. It is alleged that
the complainant was ridiculed by his friends and members of
the family and the conversation of the petitioners in the “Talk
Show” amounts to defamation with common intention which is
punishable under the law. The complainant filed two separate
petitions of complaint before the Court of Learned Chief Judicial
Magistrate, Alipore. Learned Chief Judicial Magistrate examined
the complainant and her witnesses and considered the petitionof complaint and the compact disc (DVD) annexed to the petition
of complaint and formed the opinion that prima facie case is
made out for issuance of summons against the petitioners and
some other accused persons for the offence punishable under
Sections 354A (1) (iv)/34 of the Indian Penal Code and also for
the offence punishable under Sections 500/34 of the Indian
Penal Code by passing two separate orders on February 26,
2016 in C-826 of 2016 and C-827 of 2016 respectively. The
petitioners have challenged the said orders passed by Learned
Chief Judicial Magistrate and prayed for quashing of the above
two criminal prosecutions initiated by the complainant.
4. Mr. Sekhar Basu, Learned Senior Counsel appearing on behalf
of the petitioners contends that no offence is made out from the
petition of complaint, deposition of the complainant and her
witnesses for issuance of process against the petitioners for the
offence of sexual harassment and defamation. He further
contends that Learned Magistrate issued process against the
petitioners in a mechanical way without proper application of
judicial mind. The further contention of Mr. Basu is that the
criminal proceeding is initiated by the complainant in a malafide way to harass and humiliate the petitioners. According to
Mr. Basu, the complaint was filed after delay of almost two
months without any cogent explanation for the said delay. He
has specifically urged this Court to consider that Learned
Magistrate grossly erred in law by considering the compact disc
(DVD) in spite of non-compliance of the provision of Section
65B(4) of the Indian Evidence Act. With regard to the offence of
“sexual harassment” of the complainant, Mr. Basu submits that
the remarks made by the petitioners in the “Talk Show” were
vague and not directed to discernible individual, whereas the
remarks must be directed towards specified individual who is
discernible as the victim for the purpose of construing the said
remarks as “sexually coloured remarks” falling within the ambit
of “sexual harassment” punishable under Section 354A (1), (iv)
of the Indian Penal Code. Mr. Basu has relied on various
authorities which I would like to refer and discuss at the
appropriate stage of the judgement.
5. Mr. Sandipan Ganguly, Learned Senior Counsel appearing on
behalf of the complainant submits that by using metaphor both
the petitioners - Rudranil and Parambrata have tried tocommunicate how they enjoyed their relationship with the
complainant by comparing the complainant with the play
ground of Eden which did not allow both of them to play at a
time. He further submits that by using metaphor the petitioner
Parambrata has compared the complainant with a crowded bus
which allured him to go inside even without having any place to
sit on and he entered the bus as he was not very serious about
his love affairs, while the petitioner Rudranil was serious about
his love affairs. According to Mr. Ganguly, the remarks of the
petitioners Rudranil and Parambrata must be construed as
“sexually coloured remarks” as the conversation was done by
using metaphors and the remarks were innuendoes directed
towards specified individual namely the complainant whose love
affairs with both the petitioners is disclosed by the petitioners at
the beginning of the conversation. Mr. Ganguly has urged this
Court to consider that in our society if a man has sexual
relation with two women at a time the same is considered as his
virility, whereas in case of females the same is considered as
lack of chastity. He has specifically argued that the conversation
between the petitioner Parambrata and the petitioner Rudranilin the television programme has not only diminished the dignity
of the complainant and lowered down her prestige and
reputation in the eye of her relatives, friends and members of
the family, but the same also amounts to “sexually coloured
remarks” towards the complainant and as such Learned
Magistrate is justified in issuing process against the petitioners
and other accused persons for facing the criminal prosecution
before the Court of law. The further contention of Mr. Ganguly
is that the conversation between the petitioners in the television
programme is narrated in detail in the petition of complaint and
the offence is made out from the petition of complaint and from
the deposition of the complainant and her witnesses and as
such the order of taking cognizance by Learned Magistrate is
justified under the law, even if the compact disc (DVD) is not
considered by Learned Magistrate for non-compliance of the
provision of Section 65B(4) of the Indian Evidence Act. The
authorities relied on by Mr. Ganguly will be referred to and
discussed at the appropriate stage of this judgement.
6. The question for consideration of the Court is whether Learned
Chief Judicial Magistrate is justified in taking cognizance andissuing process against the petitioners and other accused
persons for facing prosecution for the offence punishable under
Sections 354A(1) (iv)/34 of the Indian Penal Code and for the
offence punishable under Sections 500/34 of the Indian Penal
Code. The contention of Mr. Basu is that the facts constituting
the offence cannot be inferred on the basis of assumption and
presumption and the victim of sexual harassment must be
discernible and specified individual. By referring to the
conversations between the petitioners - Parambrata, Rudranil
and Srijit, Mr. Basu submits that the complainant is not
identified as the victim. I am unable to accept this contention of
Mr. Basu because the conversation between the above
petitioners clearly points out that the remarks in the form of
metaphors are directed towards Rituparna Chowdhury
(complainant) who was in love with both the petitioner
Parambrata and the petitioner Rudranil. Accordingly, I don’t
find any merit in the above submission made on behalf of the
petitioners. Relying on the decision of the Supreme Court in
“Tolaram Relumal V. State of Bombay” reported in AIR 1954 SC
496, Mr. Basu has explained the principle of interpretation ofpenal statute. In this reported case the appellants were
convicted under Section 18(1) of the Bombay Rent Restriction
Act, 1947 for receiving a sum of Rs.2,400/- as premium in
respect of grant of lease of block no.15 in a building under
construction. The question which called for determination of
the Supreme Court is whether Section 18(1) of the said Act
makes punishable receipt of money during the time when the
lease had not come into existence and when there was a
possibility that the contemplated lease might never come into
existence. In the said context, the Supreme Court held in
paragraph 8 of the judgement that if two possible and
reasonable constructions can be put upon a penal provision, the
Court must lean towards that construction which exempts the
subject from penalty rather than the one which imposes penalty.
In the instant case there is no scope to make two possible and
reasonable constructions of any penal provision applicable in
the facts of the present case. What needs to be decided in the
present case is whether the remarks made by the petitioner
Parambrata and the petitioner Rudranil in the television
programme can be construed as “Sexually coloured remarks” forthe purpose of bringing the same within the ambit of “sexual
harassment” punishable under Section 354A(1) (iv) of the Indian
Penal Code. So, the ratio of the reported case cannot have any
bearing on the facts of the present case.
7. By referring to the case of “State of Maharashtra V. Hansraj
Depar Parle Oil Centre” reported in 1977 Cri.L.J 833, Mr. Basu
argues that if the offence is not defined by the legislature the
Court should not define the offence of a penal statute by
encroaching on the principle of the citizen. In the reported case
some shopkeepers of Bombay were prosecuted under Section 7
of the Essential Commodities Act, 1955 for violation of the order
issued by the State of Maharashtra under Section 3 of the said
Act by not displaying prices of “Vanaspati” in the prescribed
form in the shops. It is held by the Supreme Court in paragraph
11 of the judgement that since the shopkeepers were selling
“hydrogenated oil” and since the State Government did not
express in unambiguous language that “Vanaspati” would
include “hydrogenated oil”, the said shopkeepers cannot be
prosecuted under Section 7 of the Essential Commodities Act,
1955. In the instant case the legislature has categoricallyenumerated the acts constituting the offence of sexual
harassment in Section 354A of the Indian Penal Code, though
the legislature has left it to the discretion of the Court to decide
whether the particular remarks directed to the victim will be
construed as sexually coloured remarks. So, the facts of the
present case are clearly distinguishable from the facts of the
reported case and as such the ratio of the reported case is not
attracted to the facts of the present case.
8. Relying on the decision of the Supreme Court in “Kartar Singh
V. State of Punjab” reported in J. T. 1994(2) SC 423 and “Sanjay
Dutt V. State through CBI, Bombay” reported in (1994) 5 SCC
410 : 1994 SCC (Cri) 1433, Mr. Basu has explained the principle
of interpretation of penal statute when any offence is defined in
the statute in vague and imprecise way. In “Kartar Singh V.
State of Punjab” (supra) the Supreme Court considered the
definition of “abet” in Section 2(1) (i) (a) of the Terrorists and
Disruptive Activities (Prevention), Act, 1987 and held that
“actual knowledge or reason to believe” on the part of a person
to be roped in with the aid of that definition should be read into
it and thereby to mean “the communication or association withany person or class of persons with the actual knowledge or
having reason to believe that such person or class of persons is
engaged in assisting in any manner terrorists or disruptionists”,
so that the object and purpose of that definition may not
otherwise be defeated and frustrated. In the instant case the
term “sexual harassment” is enumerated in Section 354A of the
Indian Penal Code and the Court will have to decide whether the
remarks made by the petitioners in the television programme
will be construed as “sexually coloured remarks” and
defamatory in nature. Since there is no vagueness in
enumerating the term “sexual harassment”, the ratio of the
reported case cannot have any bearing on the facts of the
present case.
9. In “Sanjay Dutt V. State through CBI, Bombay” (supra) the
Supreme Court has held in paragraph 16 of the judgement that
“if there is a reasonable interpretation which will avoid the
penalty in any particular case, we must adopt that construction
and if there are two reasonable constructions, we must give the
more lenient one” and if “two possible and reasonable
constructions can be put upon a penal provision, the Courtmust lean towards that construction which exempts the subject
from penalty rather than the one which imposes penalty.” The
above well-settled rule of construction of any penal provision will
be followed by the Court if the question arises about
interpretation of a particular penal provision. In the instant
case, the duty is not cast upon the Court to make an
interpretation of the penal provision of “sexual harassment”, the
only obligation on the part of the Court is to decide whether the
remarks made by the petitioners towards the complainant in
course of their conversation in the television programme will fall
within the ambit of “sexually coloured remarks” in order to
prosecute the petitioners for the offence punishable under
Section 354A of the Indian Penal Code. While it is the bounden
duty of this Court to follow the said rule of construction of the
penal provision laid down in paragraph 16 of “Sanjay Dutt V.
State through CBI, Bombay” (supra), I don’t find any relevance
of the said decision in the facts of the present case at this stage.
10. The Hon’ble Division Bench of our High Court has laid down in
“J. Th. Zwart V. Indrani Mukherjee” reported in 1990
C.Cr.L.R(Cal) 1 that the basic facts and materials on the basis ofwhich the Court can take cognizance of the offence must be
disclosed in the complaint. I would like to examine whether the
facts and materials disclosed in the petition of complaint are
sufficient for taking cognizance of the offence by Learned
Magistrate at the appropriate stage of the judgement. In “M/s
Pepsi Foods Ltd. V. Special Judicial Magistrate” reported in AIR
1998 SC 128 the Supreme Court has held that the Magistrate
must apply his mind to the facts of the case and the law
applicable thereto and must examine the nature of allegations
made in the complaint and the evidence and form the opinion
whether offence is prima facie made out for issuance of
summons. This settled proposition of law must be taken into
consideration of this Court to decide whether Learned Chief
Judicial Magistrate, Alipore was justified in issuing summons
against the petitioners. In “Smt. Mira Ghosh V. Mira Ghosh”
reported in (2010)2 C.Cr.L.R(Cal) 148 Learned Single Judge of
our High Court has held that in the absence of any allegation
against the petitioner in the petition of complaint and in the
deposition of witnesses recorded under Section 200 of the Code
of Criminal Procedure and in the report of enquiry under Section202 of the Code of Criminal Procedure, the issuance of process
against the petitioner is not justified under the law and the
complaint against the petitioner is liable to be quashed. This
principle of law enunciated in “Smt. Mira Ghosh V. Mira Ghosh”
(supra) will be taken into consideration at the time of deciding
whether Learned Magistrate was justified in issuing process
against the petitioner. The Supreme Court has laid down in
“Hardeep Singh V. State of Punjab” reported in (2014) 3 SCC 92
that the Court can consider the evidence adduced in the
complaint case by way of recording initial deposition under
Section 200 of the Code of Criminal Procedure or by calling for
report of enquiry under Section 202 of the Code of Criminal
Procedure for corroboration of the evidence recorded during trial
for the purpose of invoking Section 319 of the Code of Criminal
Procedure. I don’t find any relevance of the said decision for
deciding the fate of this revisional application.
11. In the instant case, Learned Chief Judicial Magistrate took into
consideration not only the complaint and the evidence of the
complainant and her witnesses recorded under Section 200 of
the Code of Criminal Procedure, but also the compact disc(DVD) containing the “Talk Show” telecast on the television
channel on December 21, 2015. The contention of Mr. Basu is
that the documentary evidence as defined in Section 3(2) of the
Indian Evidence Act includes all documents including electronic
records produced for the inspection of the Court. However,
relying on the decision of the Supreme Court in “Anvar P. V. V.
P. K. Basheer” reported in (2014) 10 SCC 473 and “Rakesh Jain
V. State of Haryana” reported in 2016(2) AICLR 966(Punjab &
Haryana), Mr. Basu submits that Learned Magistrate cannot
consider the compact disc (DVD) without attachment of the
certificate issued by the authority concerned in compliance with
the provision of Section 65B(4) of the Indian Evidence Act. In
“Anvar P. V. V. P. K. Basheer” (supra) the Supreme Court has
overruled its earlier decision in “State (NCT of Delhi) V. Navjot
Sandhu” reported in (2005) 11 SCC 600 and held in paragraph
22 that an electronic record by way of secondary evidence shall
not be admitted in evidence unless the requirement under
Section 65B are satisfied. Similarly, in “Rakesh Jain V. State of
Haryana” (supra) Learned Single Judge of Punjab and Haryana
High Court has laid down that the evidence pertaining to anelectronic record is permissible under Section 65B(4) of the
Indian Evidence Act on fulfillment of the following conditions: (a)
there must be a certificate which identifies the electronic record
containing the statement; (b) the certificate must describe the
manner in which the electronic record was produced; (c) the
certificate must furnish the particulars of the device involved in
the production of that record; (d) the certificate must deal with
the applicable conditions mentioned under Section 65(2) of the
Evidence Act; and (e) the certificate must be signed by a person
occupying a responsible official position in relation to the
operation of the relevant device.” In view of the above
proposition of law Learned Magistrate is not justified in taking
into consideration the compact disc (DVD) without any
certificate as per provision of Section 65B(4) of the Indian
Evidence Act. However, without considering the contents of the
compact disc (DVD), I would like to consider the contents of the
petition of complaint and the deposition of the complainant and
her witnesses recorded under Section 200 of the Code of
Criminal Procedure for deciding whether Learned Magistrate
was justified in issuing process against the petitioners for facingcriminal prosecution under Sections 354A/34 of the Indian
Penal Code and under Sections 500/34 of the Indian Penal
Code.
12. The criteria laid down by the Supreme Court for quashing of the
criminal proceeding are enumerated in paragraph 102 of “State
of Haryana V. Bhajan Lal” reported in 1992 Supp(1) SCC 335,
which are as follows:
“102. .………. (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.”
13. By applying the above test laid down by the Supreme Court in
the facts of the present case, I have to decide whether the
contents of the petition of complaint even if taken at the face
value and accepted in its entirety do not prima facie constitute
any offence against the petitioners. The contention on behalf of
the petitioners is that the complainant has initiated criminal
proceeding against the petitioners and other accused persons in
a mala fide way to harass and humiliate the petitioners. There
is nothing on record to substantiate that the complainant filedtwo petitions of complaint to harass and humiliate the
petitioners without having any legitimate grievance. So, I am
unable to persuade myself to hold that the complainant has
started criminal proceeding against the petitioners in a mala fide
way as contended on behalf of the petitioners. It is true that the
complaints have been filed in the Court of Learned Magistrate
almost after two months of telecast of the “Talk show” in the
television channel “Colour Bangla” and the said delay has not
been explained by the complainant in the petition of complaint.
Even if the delay has not been explained by the complainant in
the petition of complaint, there is still scope to explain the said
delay by the complainant during the trial of the case and as
such the delay cannot be fatal to the present case, unless the
complaint is barred by limitation. Since the complaints are not
barred by limitation, the delay in filing the petitions of complaint
before the Court of Learned Magistrate cannot be ground to
quash the criminal proceeding.
14. The Supreme Court has laid down in “Sonu Gupta V. Deepak
Gupta” reported in (2015) 3 SCC 424 that at the stage of taking
cognizance and issuance of process, the Magistrate is requiredto apply his judicial mind only with a view to take cognizance of
the offence, or in other words, to find out whether prima facie
case has been made out for summoning the accused persons.
The supreme Court has observed in paragraph 8 of the
judgement that the Learned Magistrate is not required to
consider the defence version or materials or arguments, nor is
he required to evaluate the merits of the materials or evidence of
the complainant, because the Magistrate must not undertake
the exercise to find out at this stage whether the materials will
lead to conviction or not. In the instant case, I have already
observed that during the “Talk Show” in the television
programme the petitioner – Srijit “introduced one mannequin as
Rituparna Chowdhury (complainant) and the conversation was
directed towards her with discernible identity.” Any reasonable
and prudent person can very well understand from the
conversation between the petitioner Rudranil and the petitioner
Parambrata in the television programme that both of them were
in love with the complainant. The conversation further
indicates that the complainant will be immortalised in history
for her love and not for her footage on Bengali television. Whenthe petitioner Srijit asked the other two petitioners whether have
wooed the same girl, both the petitioners have spoken in
metaphors that they played cricket in the lovely field of Eden
Garden, while one played in the morning, the other played in the
evening. It goes without saying that the cricket is played in the
Eden Garden with 11 players on one side and two batsman on
the other side at a time, but the metaphoric use of the language
unerringly points out that the complainant being the Eden
Garden did not allow both the petitioners to play with her at a
time. During further conversation with the petitioner Srijit by
the other two petitioners, it is revealed that the petitioner
Parambrata was not serious about her love and as such he was
allured by the crowded bus in order to enter inside the bus
without having any place to sit on. The petitioner Rudranil
asserted mockingly that he was serious in love with the
complainant. The above conversation was directed towards the
mannequin by name Rituparna Chowdhury (complainant) who
was clarified during conversation that Rituparna does not mean
Rituparna Sengupta, but Rituparna Chowdhury i.e.
complainant. The complainant has specifically stated that boththe petitioners – Rudranil and Parambrata are good friends of
the complainant for about a decade and all the petitioners
belong to the same profession to which the complainant belongs.
The above conversation has, no doubt, diminished the dignity of
the complainant and lowered down his prestige and reputation
among his relatives, friends and members of family and the
viewers of the television programme. One friend of the
complainant has also deposed before the Court of Learned
Magistrate to the effect that the reputation of the complainant is
lowered down in the estimation of friends and relatives. The
allegations made in the complaint have unerringly pointed out,
prima facie, offence against the petitioners and other accused
persons for issuance of process under Sections 500/34 of the
Indian Penal Code. Learned Magistrate is, thus, justified in
taking cognizance and issuance of process against the
petitioners and other accused persons for the offence
punishable under Sections 500/34 of the Indian Penal Code.
15. Now, the question which calls for determination of the Court is
whether the conversation between the petitioners in the
television programme can be construed as “sexually colouredremarks” in order to attract the penal provision of “sexual
harassment” of the complainant. I have already observed that
the petitioner Parambrata has specifically clarified that they are
speaking in metaphors, which means that they used words and
phrases in an imaginative way to describe something else in
order to show that the two things have the same qualities and to
make the description more powerful. The Court must examine
the conversation made by the petitioners in the television
programme in the eye of the victim i.e. complainant. It is
relevant to quote the definition of “sexual harassment” given in
Section 2(n) of the Sexual Harassment of Women at Work Place
(Prevention, Prohibition and Redressal) Act, 2013, which is as
follows:
“2.(n) Sexual harassment.- Sexual harassment
includes any one or more of the following unwelcome
acts or behavior (whether directly or by implication)
namely:
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or nonverbal
conduct of sexual nature.”By omitting clause (v) of the above definition of “sexual
harassment” the legislatures have enumerated the penal
provision of “sexual harassment” under Section 354A of Indian
Penal Code as follows:
“354A. Sexual harassment and punishment for
sexual harassment.- (1) A man committing any of the
following acts:
(i) physical contact and advances involving
unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours, or
(iii) showing pornography against the will of a woman;
or
(iv) making sexually coloured remarks, shall be guilty
of the offence of sexual harassment.”
Thus, the “sexually coloured remarks” will come within the
ambit of “sexual harassment” enumerated in section 354A of the
Indian Penal Code. When the petitioner Parambrata has
clarified during conversation in the television programme that
they have been speaking in metaphor about their love to the
complainant, any reasonable and prudent person will
understand what the petitioner Parambrata and the petitioner
Rudranil wanted to mean by playing cricket in the lovely field of
Eden Garden, while one played in the morning and the other
played in the evening, as the Eden Garden did not allow them toplay at a time. This is clearly an innuendo referring to the
sexual relationship with the complainant which has the sexual
flavour to bring the same within the ambit of “sexually coloured
remarks”. The petitioner Parambrata had to give up the
relationship as he was not serious about the relationship, but
he took a chance to enter into the crowded bus being allured by
the bus even when there was no place to sit inside the said bus.
This conversation may give entertainment to the viewers at the
cost of humiliation of the complainant who, as already pointed
out by me, not only belongs to the same profession of the
petitioners, but also the friend of both the petitioners -
Parambrata and Rudranil for more than a decade. Without
considering the compact disc (DVD) for non-compliance of the
provision of Section 65B(4) of the Indian Evidence Act, Learned
Magistrate would have been justified in taking cognizance and
issuing process against the petitioners and other accused
persons for the offence punishable under Sections 354A/34 of
the Indian Penal Code.
17. In view of my above findings, I don’t find any merit in any of the
revisional applications. The petitioners are directed to appearbefore the Court of Learned Magistrate within a period of four
weeks from the date of this order, in default Learned Magistrate
is at liberty to proceed in accordance with law. The complainant
is at liberty to take steps for producing the certificate in
accordance with the provision of Section 65B(4) of the Indian
Evidence Act for admitting the compact disc (DVD) into evidence
during the trial of the case. All the revisional applications being
CRR No.1204 of 2016, CRR No.1205 of 2016, CRR No.1212 of
2016 and CRR No.1213 of 2016 are, thus, dismissed. The order
dated February 26, 2016 passed by Learned Chief Judicial
Magistrate, Alipore in connection with Complaint Case No.C-826
of 2016 and Complaint Case No.C-827 of 2016 are hereby
affirmed. Learned Magistrate of the Court below must not be
influenced by the observations made by me in the body of the
judgement, as the observations are made for the purpose of
deciding the issues involved in the revisional applications.
Let a copy of this judgement and order be sent down to the
Court of Learned Chief Judicial Magistrate, Alipore for favour of
information and necessary action.The urgent photostat certified copy of the judgement and order,
if applied for, be given to the parties on priority basis after
compliance with all necessary formalities.
(R. K. Bag, J.)
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