The main legal point established in the judgment is the application of section 354-A IPC in cases of sexual harassment and the consideration of the benefit of section 4 of the Probation of Offenders Act, 1958.

JUDGMENT :

Bhaskar Raj Pradhan, J.

1. On 08.09.2017, the victim lodged a First Information Report (FIR) before the police station alleging that the branch manager of Syndicate Bank (the bank) had, while taking her interview on 06.09.2017, talked to her inappropriately by asking her to wear her dress that showed her breasts and had also touched her body. The investigation conducted by Joshna Gurung (PW-7), the Investigating Officer of the case, culminated in filing of a charge-sheet having found prima facie case under section 509 of the Indian Penal Code, 1860 (IPC). On 22.02.2018, a charge under section 354-A IPC was framed against the revisionist. The revisionist pleaded not guilty. During the trial, seven witnesses were examined by the prosecution and one by the defence. The revisionist was examined under section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) in which he admitted that the victim had come for the interview and that he had asked her to change her clothes as the clothes were dirty and tight fitting. He also admitted that he had touched her backbone just to show her the right posture to stand and did not touch her on any other part of her body. He denied that he had told her that she should look hot and sexy when at work and explained that he had only told her that for official work an employee should be properly dressed and should be attractive. He stated that the victim’s assertion that throughout the interview she was uncomfortable was incorrect and that she was smiling all through out. He took the plea that after the interview Romi Rai had demanded money from him which he refused after which the false FIR had been lodged. It was also alleged by the revisionist that the relatives of the victim also demanded money and that he had been falsely implicated in the case to extract money from him.

2. On 30.04.2018, the learned Chief Judicial Magistrate, South Sikkim at Namchi, convicted the appellant for the offence of sexual harassment under section 354-A(1) IPC and sentenced him to undergo simple imprisonment for a period of two years and a fine of Rs.5000/-. The fine was directed to be given to the victim by way of compensation.

3. Dissatisfied with the judgment and order on sentence, both dated 30.04.2018, Criminal Appeal Case No. 2 of 2018 was preferred by the revisionist before the Court of the Sessions Judge, South Sikkim at Namchi. On 24.10.2018, the learned Sessions Judge upheld the judgment and order on sentence both passed by the learned Chief Judicial Magistrate and dismissed the appeal. The learned Sessions Judge while doing so held that the learned Chief Judicial Magistrate had not specified the particular clause of section 354-A IPC for which the appellant had been found guilty. It was held that the prosecution had established the case against the appellant under section 354-A(1)(i) & (iv) IPC and accordingly, modified the conviction.

4. Criminal Revision Petition No. 3 of 2018 has been preferred by the revisionist against the impugned judgment dated 24.10.2018 passed by the learned Sessions Judge.

5. Heard Mr. N. Rai, learned Senior Advocate and Mr. Sudesh Joshi, learned Public Prosecutor.

6. This is a case, in which, both learned Chief Judicial Magistrate as well as the learned Sessions Judge, have arrived at concurrent factual findings. At the outset, when this court enquired from Mr. N. Rai as to whether concurrent findings of fact could be upset by the revisional court in the absence of any incorrectness, illegality, impropriety or irregularity, he submitted that section 397 Cr.P.C. must be read along with section 401 Cr.P.C. which has also been invoked and in so doing, it would be seen that the revisional court would have all the powers of the appellate court. Mr. N. Rai’s submission in this regard may not be entirely correct in view of the law laid down by the Supreme Court.

7. In State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand & Others, (2004) 7 SCC 659 the Supreme Court held