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

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