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2016 Supreme(Cal) 509
IN THE HIGH COURT AT CALCUTTA
Ranjit Kumar Bag, J.
Jishu Sengupta & Others – Petitioners
Versus
The State of West Bengal & Anr. – Opposite Party
CRR 1204, 1205, 1212, 1213 of 2016
Decided On : 04-11-2016
For the Petitioner: Mr. Shekhar Basu, Mr. Rajdeep Majumder, Mr. Ayan Bhattacharya, Mr. Moyukh Mukherjee
For the Opposite Party : Mr. Sandipan Ganguly, Mr. Kaushik Gupta, Mr. L. Vishal Kumar, Mr. S. Chatterjee, Mr. Dipanjan Dutt
The Court reiterated the principle that the remarks made by the petitioners in the television programme, which were in the form of metaphors and innuendoes directed towards the complainant, could be construed as “sexually coloured remarks” within the meaning of Section 354A(1) (iv) of the Indian Penal Code.
Headnote:
CRIMINAL REVISION - OFFENCE OF SEXUAL HARASSMENT AND DEFAMATION - SECTION 354A(1) (IV)/34, SECTIONS 500/34 OF THE INDIAN PENAL CODE - INTERPRETATION OF PENAL STATUTE - PRINCIPLE OF CONSTRUCTION - FACTUAL MATRIX - APPLICABILITY OF SECTION 65B(4) OF THE INDIAN EVIDENCE ACT - CRITERIA FOR QUASHING CRIMINAL PROCEEDING - DELAY IN FILING COMPLAINT - MALA FIDE INTENTION - BURDEN OF PROOF - VALIDITY OF COGNIZANCE AND ISSUANCE OF PROCESS.
Fact of the Case:
The petitioners, Rudranil Ghosh, Parambrata Chattopadhyay, Srijit Mukherjee, and Jishu Sengupta, challenged the order dated February 26, 2016, passed by the Learned Chief Judicial Magistrate, Alipore, and prayed for quashing the criminal proceeding in connection with Complaint Case No.C-827 of 2016 and Complaint Case No.C-826 of 2016, respectively.
Finding of the Court:
The Court held that the remarks made by the petitioners in the television programme could be construed as “sexually coloured remarks” and that the petitioners’ conversation amounted to defamation. The Court further held that the Magistrate was justified in taking cognizance and issuing process against the petitioners for the offences punishable under Sections 354A/34 and 500/34 of the Indian Penal Code.
Issues: 1. Whether the remarks made by the petitioners in the television programme constituted “sexually coloured remarks” within the meaning of Section 354A(1) (iv) of the Indian Penal Code? 2. Whether the petitioners’ conversation amounted to defamation punishable under Sections 500/34 of the Indian Penal Code? 3. Whether the Magistrate was justified in taking cognizance and issuing process against the petitioners without considering the compact disc (DVD) containing the television programme, which was not accompanied by a certificate as required under Section 65B(4) of the Indian Evidence Act?
Ratio Decidendi: 1. The Court held that the remarks made by the petitioners in the television programme, which were in the form of metaphors and innuendoes directed towards the complainant, could be construed as “sexually coloured remarks” within the meaning of Section 354A(1) (iv) of the Indian Penal Code. 2. The Court held that the petitioners’ conversation, which lowered the dignity of the complainant and her reputation among her relatives, friends, and members of the family, amounted to defamation punishable under Sections 500/34 of the Indian Penal Code. 3. The Court held that the Magistrate was justified in taking cognizance and issuing process against the petitioners for the offences punishable under Sections 354A/34 and 500/34 of the Indian Penal Code, even without considering the compact disc (DVD) containing the television programme, which was not accompanied by a certificate as required under Section 65B(4) of the Indian Evidence Act.
Final Decision: The Court dismissed all the revisional applications filed by the petitioners and affirmed the order dated February 26, 2016, passed by the Learned Chief Judicial Magistrate, Alipore, in connection with Complaint Case No.C-826 of 2016 and Complaint Case No.C-827 of 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 Judicial Magistrate, 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 judgment.
2. The backdrop of all the revisional applications is as follows: The complainant is a graduate in International Relations and Political 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 immortalized 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 from the 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
