Delhi High Court: In a case wherein, the petitioner filed a petition under Section 397 read with Section 401 of Criminal Procedure Code, 1973 (‘CrPC') to set aside the impugned order dated 05-07-2018 passed by the Metropolitan Magistrate, Patiala Hose Courts, New Delhi under Section 509 of the Penal Code, 1860 (‘IPC'), Swarana Kanta Sharma, J.*, opined that insulting a woman, being rude to her, and not behaving in a chivalrous manner as she would have expected, would not be covered under the definition of outraging the woman's modesty and set aside the order passed by the Trial Court.
Background
In the instant case, the complainant filed a complaint against the petitioner on 31-01-2015, wherein she stated that she had been working with HDFC Life Insurance and the petitioner was her superior officer. The complainant alleged that, occasionally the petitioner used to assert his power and demanded money from her, which she had given on earlier occasions.
However, once on 31-01-2015, the petitioner demanded Rs. 1000 from the complainant, and she refused to give him the money. The petitioner further asked her to show the purse and when the complainant refused to do so, the petitioner called her ‘gandi aurat' and started quarrelling with her.
The complainant also stated that she had given Rs. 4000 in the past to save her job and the accused had been harassing her since last six months.
Thereafter, the FIR was registered and after the statement of complaint was recorded under Section 164 of the CrPC, the charge sheet was filed against the petitioner. Subsequently, the Trial Court vide order dated 05-07-2018, held that prima facie case was made out against the petitioner for an offence punishable under Section 509 of the IPC.
Analysis, Law, and Decision
The Court analyed Section 509 of the IPC and opined that the provision delineates two pivotal components for stablishing an offence:
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the presence of an intention to insult the modesty of a woman;
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the manner in which this insult was perpetrated.
The Court further relied on State of Punjab v. Major Singh, AIR 1967 SC 63, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194, Abhijeet J.K. v. State of Kerala, 2020 SCC OnLine Ker 703 and Swapna Barman v. Subir Das, 2003 SCC OnLine Gau 196 and opined that for the offence of outraging a woman's modesty, emotional response of the woman was not the determining factor, rather the accused's intent or awareness should be emphasized.
The Court stated that the since the Trial Court had based it's finding on the use of the word ‘gandi aurat' against the complainant, therefore the word ‘gandi aurat' had to be examined as to whether it had the potential to outrage the woman's modesty. The Court opined that what constituted an outrage to woman's modesty could be context specific as it depended on societal norms, cultural values, and individual perspectives. In the present case, the words ‘gandi aurat' could mean different things to different people. Thus, the Courts would have to apply reasonable person's reaction to determine the impact and intent behind the words.
While reading the word ‘gandi aurat' in background of overall circumstances of the case, the Court opined that the petitioner's action did not exhibit the level of intent or knowledge necessary to reasonably anticipate that the words would provoke such a strong and adverse emotional reaction that would as to qualify as an outrage to a woman’s modesty.
The Court further opined that, depending on the facts and circumstances of each case, insulting a woman, being rude to her, and not behaving in a chivalrous manner as she would have expected, would not be covered under the definition of outraging the woman's modesty.
The Court opined that the gender-specific laws were not meant to be “anti-opposite gender” but rather addressed the unique issues faced by a particular gender. Further, the existence of gender-specific legislation did not empower the Court to relax the golden principle of availability of sufficiency of ‘material on record' at the stage of framing of charge.
The Court opined that Section 509 of the IPC did not inherently introduce a presumption in women's favour and it was essential for the Courts to apply the principles of charge and discharge objectively, without being unduly influenced by the fact that this provision was gender specific. The Court further stated that mere gender specificity of a legal provision did not automatically create a presumption in favour of that gender, unless such a presumption was explicitly articulated within the legislation itself.
The Court opined that the gender specific legislation existed to address the unique concerns of the society, but it did not mean that the judge's role was shifted towards a particular gender. The Court stated that judicial neutrality was an indispensable cornerstone of a legal system and the judge's role was to objectively interpret and apply the law free from any gender bias or predisposition.
Further, the Court noted that the Sexual Harassment Committee (‘Committee') had already issued a warning to the petitioner for using derogatory language against the complainant and the Committee's verdict stood closed without being challenged by the petitioner. Thus, the Court opined that, even if the petitioner and complainant were having an argument with each other, the petitioner should have been more courteous and careful in using harsh language against the petitioner.
Accordingly, the Court set aside the order passed by the Trial Court and disposed of the present petition.
[Varun Bhatia v. State, 2023 SCC OnLine Del 5288, decided on 28-08-2023]
Advocates who appeared in this case :
For the Petitioner: K.C. Mittal, Yugansh Mittal and Vaibhav Yadav, Advocates.;
For the Respondents: Manoj Pant, APP for the State; Ajit Kumar, Nutan Kumari, Nikita Sharma and Alok Kumar, Advocates
*Judgment authored by- Justice Swarana Kanta Sharma
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In Varun Bhatia v. State, it is surprising to note that the senior was harassing her and trying to extort money from her on various pretexts and still there was no charge of “extortion” under section 383 made along with sec 509 charge.
By acquitting him even after calling the lady “gandi aurat”, wrong precedent is being set. On one hand we see Hon’ble CJI issuing directions to the Hon’ble judges for the words to be used while addressing women in their judgments and on the other hand people who use vulgar language are set scot-free.