‘Offence under S. 354A of IPC is gender specific and only a man can be prosecuted under the same’; Calcutta HC quashes sexual harassment case against female accused

Calcutta High Court: In a criminal revisional application under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973¹ (‘CrPC’) filed by the accused (petitioner) in a case dated 15-09-2018 under Sections 354A/506/34 of the Penal Code, 1860² (‘IPC’) which was pending before the Court of Additional Chief Judicial Magistrate at Alipore, South 24 Parganas, a Single Judge Bench of Ajay Kumar Gupta, J. held that the allegation of an offence punishable under Section 354A of IPC was not applicable against the petitioner since the sub-sections of the said provision specifically begin with the words ‘a man’.

Background

On 15-09-2018, respondent 2 approached the Officer-in-Charge of Netaji Nagar Police Station to lodge a written complaint against four persons alleging that the petitioner along with the principal accused had tried to torture the mother of respondent 2.

It was alleged that the principal accused came to respondent 2’s house and entered her room while she was changing her dress and at that time the principal accused tried to molest her with ill motive. However, respondent 2 rescued herself. The said co-accused was the biological father of the petitioner.

Another allegation made against the petitioner was that the petitioner along with others always instigated and tortured respondent 2’s mother but no particulars of the alleged offences were given.

It was the case of the petitioner that a charge sheet was filed against four accused persons including her without proper investigation even though she was innocent and had no role to play in the alleged offences. It was also contended that the entire proceeding against the petitioner was an abuse of the process of law which required immediate interference by the Court under Section 482 of CrPC.

It was also contended that the charge sheet filed under Section 354A of IPC was incongruous because this provision does not apply against a female accused since the Section opens with the term ‘a man’.

Analysis and Decision

The Court stated that a perusal of the statement of respondent 2 recorded under Section 164 of CrPC³ revealed that allegations were made only against the principal accused and not a single allegation was levelled against the petitioner.

The Court perused the statement of the mother of respondent 2 under Section 161 of CrPC⁴ and that all the accused persons had threatened her with dire consequences but no particular date, time, or place had been disclosed.

Further, the Court stated that, from the entire evidence collected during the investigation, it could find no specific role of the petitioner regarding the allegations made by respondent 2.

The Court stated that all the allegations made against the petitioner were merely for implication with an ulterior motive for vengeance, and to spite the petitioner due to private and personal grudge towards her.

The Court said that under such circumstances, inherent power under Section 482 of CrPC could be exercised to prevent the abuse of the process of law and to secure the ends of justice.

The Court referred to State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 and said that it was squarely applicable to the present case.

Further, the Court stated that a bare perusal of Section 354A of IPC would reveal that this Section could apply only to a male accused. The Court said that all sub-sections of Section 354A begin with the words ‘a man’, and hence, a woman could not be said to have committed an offence under this provision.

The Court referred to Tolaram Relumal v. State of Bombay (1954) 1 SCC 961 wherein it was held that if two possible and reasonable constructions could be put upon a penal provision, the Court must lean towards the construction which exempts the subject from penalty rather than the one which imposes penalty.

The Court stated that it could be safely accepted that a female could not be an accused under Section 354A of IPC as was evident from the terminology used in the said enactment. Further, the Court said that the offence under the said Section was gender specific and only a male could be prosecuted under this offence.

Thus, the Court held that the allegation of an offence punishable under Section 354A of IPC was not applicable against the present petitioner and quashed the proceedings in connection with the case dated 15-09-2018 against the petitioner.

[Susmita Pandit v. State of West Bengal, 2024 SCC OnLine Cal 7116, Decided on 26-07-2024]

Advocates who appeared in this case:

For Petitioner — Advocate Ayan Bhattacharjee, Advocate Amitabrata Hait, Advocate Arpit Choudhury

For Respondent — Advocate Madhusudan Sur, Advocate Dipankar Paramanick