CALCUTTA HIGH COURT
Ranjit Kumar Bag, J.
Jishu Sengupta and Others —Petitioners
versus
State of West Bengal and Anr. —Opp. Parties
CRR 1204 of 2016 with CRR 1205,
1212, 1213 of 2016
Decided on 4.11.2016

Headnote:Indian Penal Code, 1860—Section 354A and 500/34—Cognizance of offences of “Sexual Harassment” and defamation on a private complaint—Petitioners held a take show in a television channel by casting aspersion on character and reputation of complainant and by subjecting her to sexual harassment by referring to one mannequin as complainant—Petitioners used metaphors and described how they enjoyed playing cricket in play ground of Eden, while one played in morning and other played in evening—Petition for quashing complaint and proceedings on plea that offence could not be inferred on basis of assumption and presumption—Conversation between petitioners clearly pointed out that remarks in form of metaphors were directed towards complainant—Any reasonable and prudent person could well under-stand from conversation that petitioners were in love with complainant—Metaphoric use of language unerringly pointed out that complainant being Eden garden did not allow both petitioners to play with her at a time—Conversation had “sexually coloured remarks”—No ground to quash the proceedings

       Held: The question for consideration of the Court is whether Learned Chief Judicial Magistrate is justified in taking cognizance and issuing 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.

       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 required to 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 judgment 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. When the 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 both the 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.

       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 to play 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 punish able under Sections 354A/34 of the Indian Penal Code. (Paras 6, 14 and 16)

       Result: Petition dismissed