The Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013, is not retrospective and public servants charged under Section 354(A) IPC are not entitled to prior sanction under Section 197 CrPC.

Ashim Kumar Roy, J.

The petitioners seeking quashing of order of taking of cognizance and issuance of summons relating to the offences punishable under Section 354A (iv) 508/509 of the Indian Penal Code and under Section 3(2), (iv) and (v) of The Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013., pending before the learned Metropolitan Magistrate 18th Court, Calcutta, against them have approached this court.

2. Heard Mr. Sekhar Basu Advocate and Mr. Joy Sengupta Advocate appearing on behalf of the petitioners and Mr. L. Vishal Kumar, Advocate appearing on behalf of the complainant.

3. Mr. Basu vehemently contended on the face of the allegations made in the petition of complaint no case for the alleged offences against the petitioners can said to have been made out.

Then in support of his such contention Mr. Basu submitted as follows:-

a) The complainant is a 50 years old lady working in the company as a Secretary to the petitioner No.1 for quite some time. During the last few years she was unable to cope up with the work pressure and professional issue in changing times. However, she did not accept it in proper spirit and started reacting ferociously and misbehaved with the petitioners.

b) Already the complainant has made a complaint to the company alleging the commission of Sexual harassment but that was against the petitioner No.1

c) The Sexual Harassment Of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 came into operation with effect from 23rd April, 2013 and that being a penal statute and a substantive law, has no retrospective operation. Therefore, for any alleged incident of 14th April, 2013 and 23rd April, 2013 the petitioner cannot be prosecuted thereunder.

d) The offence punishable under Section 354A(iv) IPC came into force in the month of February 2013 but exact date of occurrence not being mentioned. The case against the petitioner is liable to fail.

e) The tenor of the allegations made in the petition of complaint give a clear inkling that the complainant was possibly frustrated as she could not cope up with the work pressure and the professionalism of the changing times. The Sexual overtone appears to be quite artificially implanted, possibly to bring a mere service dispute within the ambit of new penal provisions regarding sexual harassment.

f) The complainant maliciously initiated the impugned proceedings in conspiracy with some unscrupulous officers/contractors of the company so that the petitioner no.1 cannot assume the post of Chairman cum Managing Director of the said company, which is already in the process.

g) The contradictions and improvement made in the petition of complaint over the same incident, made before the Enquiry Committee speaks a volume about the true intention of the complainant. The petitioners are absolutely innocent and maliciously implicated in this case.

4. Mr. Joy Sengupta, Advocate also appearing on behalf of the petitioner submitted that the petitioners are the Director (Project Manager) and the Director (Finance) and are public servant within the meaning of Section 21 IPC and because their appointing authority and removal authority is the Central Government under the seal of President of India and at the time of the alleged offence they were working in connection with the affairs of Union Government, as the company is a Public Sector Enterprise under the control of Central Government Department of Heavy Industries, therefore taking of cognizance of any offence without the prior sanction of the Central Government is not permissible according to Section 197 Cr.P.C.

5. On the other hand, Mr. L. Vishal Kumar, Advocate appearing on behalf of the complainant submitted that at this stage the grounds on which quashing has been sought for, essentially being a question of fact and defence of the petitioner the same cannot be pressed into service. He further submitted that on a plain reading of the content of the complai