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 nonverbal
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 toplay 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.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
Hon’ble Justice Ranjit Kumar Bag
CRR 1204 of 2016
Jishu Sengupta & Others
V.
State of West Bengal & Anr.
Judgement delivered on : November 4, 2016
R. K. Bag, J.
