Only Men Can Be Prosecuted Under 'Gender-Specific' Law Of Sexual Harassment U/S 354A IPC: Calcutta High Court
The Calcutta High Court has recently held that sexual harassment charges under Section 354A of the Indian Penal Code (IPC) cannot be applied against women since the provision specifically begins with the term "a man."
A single bench of Justice Ajay Kumar Gupta perused the provision which begins, "[354A. Sexual harassment and punishment for sexual harassment--(1) A man committing any of the following acts--"
It was held that "it can be safely accepted that a female cannot be an accused under Section 354A of the IPC as is evident from very terminology as used in the said enactment. This offence is gender specific and only a male can be prosecuted under this offence. A female accused will not be covered under the mischief of this Section as a result of the specific words “a man” used in the Section 354A sub-sections (1), (2) and (3) of the IPC. Accordingly, the allegation of an offence punishable under Section 354A of IPC is not applicable against the present petitioner."
Background
Petitioners filed this criminal revisional application under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973 seeking quashing of the proceedings initiated against them.
On 15th September 2018 opposite party No. 2 lodged a written complaint against four accused persons including the petitioner alleging that one Samir Pandit and the petitioner tried to torture the mother of the de-facto complainant.
It was stated that the accused Samir Pandit came to her house and entered into the room of the de-facto complainant while she was changing her dress and the accused person tried to molest her with ill motive.
It was argued that Samir Pandit was the biological father of the petitioner and in the FIR, another allegation made was against the petitioner that she petitioner being the daughter of Samir Pandit along with others always instigated and tortured the mother of the complainant.
It is further case of the petitioner that without proper investigation a charge sheet under Sections 354A/506/34 of the IPC was filed against four accused persons including the petitioner though the petitioner was totally innocent. She had no role to play in the alleged offences.
It was argued that there was no sufficient material available in the charge sheet to proceed with the case against the petitioner and the entire proceeding against the petitioner is an abuse of process of law which requires immediate interference.
Besides this, it was also argued that Section 354A cannot apply against a female accused. It can only apply against a male accused person because the Section opens with the term “a man”. As such, the entire proceeding is required to be quashed against the petitioner.
Counsels appearing on behalf of the State submitted that the FIR named accused persons including the petitioner in furtherance with their common intention, threatened the complainant and her mother with dire consequences.
It was stated that Samir Pandit outraged the modesty of the complainant by demanding sexual favour at her residence and for such illegal demand of sexual favour, the petitioner in furtherance of common intention WAS involved in the alleged offence as such Section 354A was applicable against the present petitioner.
Upon hearing the parties, the Court held that not a single allegation was levelled against the present petitioner for an offence punishable under Section 354A/506/34 of the IPC and the allegations were only against Samir Pandit.
From the entire evidence collected during the investigation, this Court does not find any specific role attributed against the petitioner with regard to the allegations made by the complainant. Under such circumstances, all the allegations made against the present petitioner is merely for implication with an ulterior motive for wreaking vengeance on the accused and with a view to spite her due to private and personal grudge, it held.
Notwithstanding the above observations, the Court also accepted the argument of the petitioner that by design, a woman can't be implicated as an accused in a case under Section 354A of the IPC, and thus quashed the proceedings against her.
Citation: 2024 LiveLaw (Cal) 177
Case: Susmita Pandit Versus State of West Bengal & Another
Case No: CRR 515 of 2020