Sexual Harassment; Jishu Sengupta Vs. State of West Bengal [Calcutta High Court, 04-11-2016]

Indian Evidence Act, 1872 – Section 65B(4) – Indian Penal Code, 1860 – Sections 354A (1) (iv)/34 – “sexual harassment” – “Talk Show” – “sexually coloured remarks” – 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.

Quashing of the Criminal Proceeding – Delay in filing Complaint – Since the complaints are not barred by limitation, the delay in filing the petitions of complaint before the Court of Magistrate cannot be ground to quash the criminal proceeding.

# Complainant

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE

Hon’ble Justice Ranjit Kumar Bag

November 4, 2016

CRR 1204 of 2016 With CRR 1205 of 2016 With CRR 1212 of 2016 With CRR 1213 of 2016

Jishu Sengupta & Others V. The State of West Bengal & Anr. For the Petitioners : Mr. Shekhar Basu, Mr. Rajdeep Majumder, Mr. Ayan Bhattacharya, Mr. Moyukh Mukherjee, For the O.P. No.2 : Mr. Sandipan Ganguly, Mr. Kaushik Gupta, Mr. L. Vishal Kumar, Mr. S. Chatterjee, Mr. Dipanjan Dutt

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 judgement.

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 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 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 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 petition of 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 mala fide 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 to communicate 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 Rudranil in 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 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. 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 of penal 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” for the 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 categorically enumerated 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 JT 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 with any 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 Court must 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 of which 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 Section 202 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 65Bare 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 an electronic 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 facing criminal 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 non- cognizable 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 filed two 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 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 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. 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.

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 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 non- verbal 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 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 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 appear before 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.

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