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2014 DIGILAW 523 (CAL)

Mahendra Kumar Singh v. Linda Eastwood

2014-06-18

ASHIM KUMAR ROY

body2014
JUDGMENT Ashim Kumar Roy, J. The petitioners seeking quashing of order of taking of cognizance and issuance of summons relating to the offences punishable under Section 354A (iv) 508/509 of the Indian Penal Code and under Section 3(2), (iv) and (v) of The Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013., pending before the learned Metropolitan Magistrate 18th Court, Calcutta, against them have approached this court. 2. Heard Mr. Sekhar Basu Advocate and Mr. Joy Sengupta Advocate appearing on behalf of the petitioners and Mr. L. Vishal Kumar, Advocate appearing on behalf of the complainant. 3. Mr. Basu vehemently contended on the face of the allegations made in the petition of complaint no case for the alleged offences against the petitioners can said to have been made out. Then in support of his such contention Mr. Basu submitted as follows:- a) The complainant is a 50 years old lady working in the company as a Secretary to the petitioner No.1 for quite some time. During the last few years she was unable to cope up with the work pressure and professional issue in changing times. However, she did not accept it in proper spirit and started reacting ferociously and misbehaved with the petitioners. b) Already the complainant has made a complaint to the company alleging the commission of Sexual harassment but that was against the petitioner No.1 c) The Sexual Harassment Of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 came into operation with effect from 23rd April, 2013 and that being a penal statute and a substantive law, has no retrospective operation. Therefore, for any alleged incident of 14th April, 2013 and 23rd April, 2013 the petitioner cannot be prosecuted thereunder. d) The offence punishable under Section 354A(iv) IPC came into force in the month of February 2013 but exact date of occurrence not being mentioned. The case against the petitioner is liable to fail. e) The tenor of the allegations made in the petition of complaint give a clear inkling that the complainant was possibly frustrated as she could not cope up with the work pressure and the professionalism of the changing times. The Sexual overtone appears to be quite artificially implanted, possibly to bring a mere service dispute within the ambit of new penal provisions regarding sexual harassment. The Sexual overtone appears to be quite artificially implanted, possibly to bring a mere service dispute within the ambit of new penal provisions regarding sexual harassment. f) The complainant maliciously initiated the impugned proceedings in conspiracy with some unscrupulous officers/contractors of the company so that the petitioner no.1 cannot assume the post of Chairman cum Managing Director of the said company, which is already in the process. g) The contradictions and improvement made in the petition of complaint over the same incident, made before the Enquiry Committee speaks a volume about the true intention of the complainant. The petitioners are absolutely innocent and maliciously implicated in this case. 4. Mr. Joy Sengupta, Advocate also appearing on behalf of the petitioner submitted that the petitioners are the Director (Project Manager) and the Director (Finance) and are public servant within the meaning of Section 21 IPC and because their appointing authority and removal authority is the Central Government under the seal of President of India and at the time of the alleged offence they were working in connection with the affairs of Union Government, as the company is a Public Sector Enterprise under the control of Central Government Department of Heavy Industries, therefore taking of cognizance of any offence without the prior sanction of the Central Government is not permissible according to Section 197 Cr.P.C. 5. On the other hand, Mr. L. Vishal Kumar, Advocate appearing on behalf of the complainant submitted that at this stage the grounds on which quashing has been sought for, essentially being a question of fact and defence of the petitioner the same cannot be pressed into service. He further submitted that on a plain reading of the content of the complaint and accepting the same in its entirety to be true, clearly the offences for which cognizance was taken has been made out and thus the question of quashing of the complaint does not at all arise. He then vehemently contended, since the offence committed by the petitioners cannot said to be the part of his official duty and nor can be said to have committed in discharging of his official duty, the question of taking prior sanction from the Central Government is not at all require. He lastly submitted that this criminal revision has no merit and be dismissed with costs. 6. He lastly submitted that this criminal revision has no merit and be dismissed with costs. 6. The rival submissions of the parties are anxiously considered, as also the materials on record more particularly the petition of complaint and initial deposition of the witnesses. 7. It is the case of the petitioner that they cannot be charged for any offence punishable under The Sexual Harassment of Women At Work Place (Prevention, Prohibition and Redressal) Act, 2013, which came into force with effect from 23.4.2013. and the same being a penal statue cannot have retrospective operation. I find the said act was passed in the Parliament and then got the assent of the President on 22nd April, 2013 and was came into force on being notified in the official Gazette of India by the Central Government, on December 9, 2013. Therefore, the cognizance taken on 29th August, 2013 by the learned Court below for such offences is absolutely illegal and without jurisdiction, being hit by sub-article (1) of Article 20 of the Constitution. Furthermore, it is well-settled no penal status has any retrospective operation. 8. Before adverting to the question whether the rest of the offences on the face of the allegations made in the petition of complaint, has been made out or not, it would be apposite to refer those provisions viz., Section 354A I.P.C, Section 508 I.P.C and Section 509 I.P.C and thus are quoted below: - 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. (2) Any man who commits the offence specified in clause (I) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both, (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 508. 508. Act caused by inducing person to believe that he will be rendered an object of the Divine displeasure.----- Whoever voluntarily causes or attempts to cause any person to do anything which that person is not legally bound to do, or to omit to do anything which he is legally entitled to do, by inducing or attempting to induce that person to believe that he or any person in whom he is interested will become or will be rendered by some act of the offender an object of Divine displeasure if he does not do the thing which it is the object of the offender to cause him to do, or if he does the thing which it is the object of the offender to cause him to omit, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 509. Word, gesture or act intended to insult the modesty of a woman.------Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman shall be punished with simple imprisonment for a term which may extend to three years, and also with fine. 9. In this regard on perusal of the petition of complaint I find amongst other there are following allegations. The most relevant are those made in paragraph (iii) which are quoted below:- “The complainant is working in the instant office for the last 33 years with repute, but this accused no. 1 always threatens the complainant, without any rhyme and reason. The complainant used to tremble in each and every time he calls. The accused no.1 pushed the complainant to the almost brink of a nervous breakdown. Sometimes he says, “ You are only an old aged sexy lady”, “ Your golden days are gone with your age, leave the job, young girls are waiting for this post, I shall pass some good time with them”. The accused no.1 pushed the complainant to the almost brink of a nervous breakdown. Sometimes he says, “ You are only an old aged sexy lady”, “ Your golden days are gone with your age, leave the job, young girls are waiting for this post, I shall pass some good time with them”. Sometimes he says, “Stop talking much and don’t think that you are very smart.” Quite a few numbers of persons have witnessed this behavior of the accused no.1 with the complainant.” Now without entering into the question as to the truth or falsehood of such allegations, it cannot be said those allegations, on the face of the same, does not amount to making of sexually coloured remarks and making of such remarks does not prima facie appears to an act intend to insult the modesty of a woman. Therefore, the question of quashing of the proceeding for the offences under Section 354A (iv)/ 509 I.P.C. does not at all arise. So far as, offence punishable under Section 508 I.P.C concerned undoubtedly same has not been made out as also the offence punishable under the provisions of Sexual Harassment at Work Place. 10. Now, coming to the contention of Mr. Sengupta that the writ petitioners being the public servant employed in connection with the affairs of Union of India and not removable from his office, save by or with the sanction of the Government and therefore, the offence committed while acting or purporting to act in the discharge of their official duty, the taking cognizance is wholly illegal and without jurisdiction, it is sorry to say Mr. Sengupta in all probability overlooked the explanation to Section 197 CrPC inserted by the Criminal Law Amendment Act, 2013 with effect from February 3, 2013 whereby no sanction is required, in case of a public servant who has been charged for any offence punishable under Section 354(A) IPC. In the case in hand, the allegation is one of commission of the offence punishable under Section 354 IPC allegedly occurred on April 14, 2013 and Aparil 23, 2013 after such amendment being introduced. In the case in hand, the allegation is one of commission of the offence punishable under Section 354 IPC allegedly occurred on April 14, 2013 and Aparil 23, 2013 after such amendment being introduced. In the result this application partly succeeds while the case for the offence punishable under Section 3(2), (iv) and (v) of the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 and the offence punishable under Section 508 IPC are stands quashed but the prayer for quashing of the offence punishable under Section 509 IPC is rejected.