Shampa Dutt (Paul), J
1. The present revision has been preferred praying for quashing of the First Information Report being Kasba Police Station Case No. 355 of 2020 and 323 of 2020 dated September 09, 2020 and September 19, 2020 respectively under Section 509 of the Indian Penal Code, 1860 corresponding to ACGR No. 3994 of 2020 and ACGR No. 4073 of 2020 pending before the Court of the Learned Additional Chief Judicial Magistrate at Alipore, South 24 Parganas.
2. The petitioner’s case is that she is presently the Head of the Department of Zoology, Vivekananda College, Thakurpukur, situated at 269, Diamond Harbour Road, Kolkata-700063 and since 2006 has been discharging her duties as the Assistant Professor, Department of Zoology.
3. The allegations brought about by way of a written complaint lodged by the Opposite party No. 2 are inter alia to the effect that she joined the said College in the capacity of a Lecturer in 2005 in the Zoology Department of which the Petitioner is presently the Head. The Opposite Party No. 2 has claimed to have acted in the capacity of the Head of the Department, Zoology in the said college till 2015. The Opposite Party No. 2 that is Dr. Senjuti Roy Mukherjee, apart from being an Associate Professor in the said College, is also an amateur Theatre artist and she regularly performs in Theatres and advertisements. Allegedly, ever since the Petitioner had assumed the charge of the Head of the Department of Zoology in March, 2018 she has insulted the Opposite Party No. 2 on multiple occasions. During the lockdown, the Opposite Party No. 2 had organized an international webinar and a theatre appreciation course on behalf of the said college but the students of Zoology were discouraged to join the course. The Opposite Party No. 2 however kept quiet but her silence was taken to be her weakness. It was then brought to the notice of the Opposite Party No. 2 that the Petitioner had posted a defamatory and allegedly lascivious photograph of the Opposite Party No. 2 along with an abusive comment in a Whatsapp group comprising of around fifty students. The Opposite Party No. 2 admitted that the said photograph was taken from the climax scene of one of the plays played by the Opposite Party No. 2 namely ‘Medea’ where the female character “Medea” is depicted as a physically and mentally shattered lady in torn clothes. The said group was immediately dissolved after the incident to conceal evidence and has been replaced by a new group. The said incident which took place on August 15, 2020 was allegedly intended to vilify and defame the Opposite Party No. 2.
4. Apparently some unknown person had extracted the picture in question and added a tagline apropos the protagonist played by Dr. Senjuti Roy Mukherjee in “Medea” and the same was uploaded few months back and shared in various Whatsapp groups including in groups of which the Petitioner is part of. Had it not been the sheer ulterior motive of Dr. Senjuti Roy Mukherjee to willfully harass the Petitioner, she would have taken it as a flattering remark for luminously portraying her character “Medea”.
5. Further, she would have taken notice of the picture in question right since the same was uploaded and shared in various social medial platforms as aforesaid, for being obscene or crude or obnoxious or being sexually coloured from any corner as alleged in her complaint, however on the contrary Dr. Senjuti Roy Mukherjee herself has got the picture tagged in her personal Facebook account and further shared the picture for further promotion.
6. The Mandamus Appeal filed by the petitioner being MAT 604 of 2014 was allowed by the Hon’ble Division Bench and vide order dated 18.09.2014, the Hon’ble Division Bench was pleased to quash the entire disciplinary proceeding initiated against the petitioner and consequently, the suspension order which was issued to the petitioner.
7. That even after the disciplinary proceeding and the consequential suspension order was quashed by the Hon’ble Court, the Petitioner was deliberately harassed at her College by not being allotted classes and not being allowed at, in the administrative functions of the College and furthermore, the Petitioner continued to be treated as a Suspended teacher. At that material point of time, the present Opposite Party No. 2, Dr. Senjuti Roy Mukherjee was the Head of the Department of Zoology.
8. Thus narrating such acts of harassment by the College authorities, including the then Head of the Department of Zoology, Dr. Senjuti Roy Mukherjee, and seeking for redressal therefrom, the Petitioner was yet again compelled to approach this Hon’ble Court and vide order dated January 9, 2015, in W.P. no. 32930 (W) of 2020, the Hon’ble Justice Dipankar Datta was pleased to inter alia observe and direct as follows:-
“………Since the disciplinary proceeding and the order of suspension are no longer in existence, the petitioner ought to be allotted classes by the Principal of the college in the manner classes were being allotted to her prior to initiation of the disciplinary proceeding against her. The Principal is accordingly directed to allot classes to the petitioner and as and when the classes shall be so allotted, the petitioner shall be bound to discharge her duty as an Assistant Professor.
However, it is made clear that if at all the petitioner has been shown to be placed under suspension even after quashing of the order of suspension by the Hon’ble Division Bench, she shall be at liberty to seek deletion thereof by presenting an appropriate representation before the Principal of the college, and I hope and trust that the Principal shall do the needful with any delay………”
9. It is submitted that the petitioner is also amongst the list of friends in the Facebook profile of Dr. Senjuti Roy Mukherjee, which is morefully the reason for her having such information available to her.
10. That during the year 2019, Dr. Senjuti Roy Mukherjee consistently performed in one theatrical play named “Medea” and pictures of her performance were published, posted, uploaded and liberally shared in her own Facebook profile, in the months of July, August and November 2019. The students of Vivekananda College including students of the Department of Zoology, especially those included in the Friend List of her Facebook profile are thus fully acquainted with such Pictures along with the Tags, Shares and Comments made with regard to such posters of performances which are available in such public social forum since the last one year without a single person whomsoever having raised any objection to the same especially and more particularly Dr. Senjuti Roy Mukherjee.
11. Admittedly the Poster or Picture in question which is of the performance of Dr. Senjuti Roy Mukherjee in the Theatre captioned “Medea” was done in her artistic capacity of an Actor and not in the capacity of an Assistant Professor of Vivekananda College and neither does the picture describe her in any way as a Teacher.
12. The Petitioner states that from nowhere in the written complaint it appears that the said picture is a private one and has been rather admitted by the Opposite Party No. 2 to be a picture of her while performing a public play/theatre. The portrayal of such character in a play is neither in her individual capacity or in the capacity as teacher and the same is liberally and widely available in multifarious public domains including social media like Facebook.com implying that the character representation/manifestations are submitted to the judgment of the public, which can hardly be called into question by merely using certain ill words.
13. Mr. Jayanta Narayan Chatterjee, learned counsel for the petitioner has submitted that in order to deliberately and purposely give a criminal colour to an alleged incident, the Opposite Party No. 2 has used two words ‘defamatory’ and ‘lascivious photograph’ while remaining unmindful of the fact that in case the picture in question from a play enacted by her is considered to be falling within such category then she should be prosecuted under Sections 292/294 of the Indian Penal Code, 1860 for playing such lascivious character as well as the person who has clicked the photograph and has uploaded the same without any objection from the Opposite Party No. 2.
14. The proof that the Opposite Party No. 2 herself did not treat the picture of the post in question to be obscene and would not amount to outraging her modesty lies in the fact that she has herself struck down the words “and outraging my modesty” from the subject as appearing in her written complaint dated 24.08.2020 submitted to Kasba Police Station. It is clearly evident that she penned through the said words and put her initials therein. On such ground alone the instant proceeding under Section 509 of the Indian Penal code loses its tenacity.
15. That it is well settled that mere mentioning of the key words of a provision of law is grossly insufficient to attract the said provision if the allegations otherwise do make out a case or disclose the commission of a cognizable offence warranting registration of a First Information Report.
16. That since the First Information Report is the Sheet anchor of prosecution, therefore, in cases where the First Information Report is devoid of material particulars disclosing the offences, the court may quash the proceeding without entertaining any other material on record.
17. That what further establishes and glorifies the mala fide of the Opposite Party No. 2 to harass the Petitioner is the fact that the Opposite Party No. 2 has instigated a subsequent FIR to be lodged by one Ashis Karmakar with Netaji Nagar Police Station being Case No. 323 dated 19.09.2020, on the self same issue (CRR 1443 of 2020, tagged with CRR 1441 of 2020).
18. That the allegations even if taken to be true, do not make out any cause action giving rise to initiation of an investigation under Chapter XII of the Criminal Procedure Code, especially and more particularly under Section 509 of the Indian Penal Code.
19. That the Petitioner is absolutely innocent and has been falsely implicated in the instant case by Opposite Party No. 2 with malicious intention of harassment, extortion and oppression.
20. That it is well settled principal of law that the criminal law cannot be set in motion in order to mitigate the personal grudge of the parties and same would amount to miscarriage of justice.
21. It is thus submitted and prayed that this is an appropriate case where this Hon’ble Court may invoke its inherent powers under Section 482 of the Code of Criminal procedure and quash the First Information Report and/or set aside the impugned proceedings and all order passed therein.
22. Mr. Kallol Bose, learned counsel for the Opposite Party No. 2 has submitted that there is sufficient material on record against the Petitioner in respect of the offence alleged and the case should be permitted to proceed towards trial, there being a prima facie case against the accused. It is further submitted that the words used if taken with the picture clearly indicates the offence under Section 509 IPC.
23. Mr. Arijit Ganguly, learned counsel for the State has placed the case diary.
24. From the materials on record the following facts are before this court:-
i. The present case has been filed for offence alleged under Section 509 IPC.
ii. The parties are both part of the teaching faculty at Vivekananda College, Thakurpukur, Kolkata.
iii. The parties have had several disputes relating to their official position and functioning, for which they had to take the shelter of the courts.
iv. The present case relates to a picture taken from the Facebook page of the complainant relating to a scene in a play in which the complainant played a part, and sharing it on a whatsapp group with about 50 students, allegedly with the comment “bansh na dile, amar ghum asena”.
v. The complainant’s case is that by the said circulation of the said picture and the accompanying words, the petitioner has intended to insult her modesty, but the complainant in her written complaint has struck out the sentence ‘outraging my modesty’ and put her initials which is not denied.
25. Teaching is a Nobel profession.
26. Teachers mould the future generations by their conduct.
27. Teachers as colleagues (as in this case) should:-
i. treat other members of the profession in the same manner as they themselves wish to be treated,
ii. speak respectfully of other teachers and render assistance for professional betterment,
iii. refrain from lodging unsubstantiated allegations against colleagues to higher authorities,
iv. refrain from exploiting considerations of caste, creed, religion, race or gender in their professional endeavour,
v. be thoroughly social and humane, democratic and rational, towards other teachers,
vi. strive at any cost to remove and wash out the local tensions and controversies and disputes.
vii. believe in union and unity of the colleagues.
28. Section 509 of the Indian Penal Code, lays down:-
“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].
Ingredients of offence.- The essential ingredients of the offence under Section 509 are as follows:-
(1) The accused uttered some words, or made some sounds or gesture or exhibited any object or intruded upon the privacy of a woman;
(2) The accused must have intended that the words so uttered or the sound or gesture so made or the object so exhibited should be heard or seen respectively by the woman;
(3) The accused thereby intended to insult the modesty of the woman.”
29. In Raju Pandurang Mahale vs State of Maharashtra and Anr., Appeal (crl.) 616 of 2003, on 11.02.2004, the Supreme Court held that:-
“………..What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a women, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such ourtrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows:
"Decorous in manner and conduct; not forward or lowe; Shame-fast: Scrupulously chast."
Modesty is defined as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod, (1876) 7 C & P
817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.
Webster's Third New International Dictionary of the English Language defines modesty as "freedom from coarseness, indelicacy or indecency, a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Edn.), the meaning of the word 'modesty' is given as "womanly propriety of behaviour: scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions."
In State of Punjab v. Major Singh, AIR (1967) SC 63 a question arose whether a female child of seven and a half months could be said to be possessed of 'modesty' which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the "common notions of mankind" referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman's modesty is her sex and from her very birth she possess the modesty which is the attribute of her sex. From the above dictionary meaning of 'modesty' and the interpretation given to that word by this Court in Major Singh's case (supra) the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deal Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr., [1995] 6 SCC 194. When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of accused appellant and the concrete role be consistently played from the beginning proved combination of persons and minds as well and as such amounted to "outraging of her modesty" for it was an affront to the normal sense of feminist decency……………”
30. In Abhijeet J. K. V. State of Kerala, 2020 SCC OnLine Ker 703, the Court held:-
“It is a settled position of law that there is distinction between an act of merely insulting a woman and an act of insulting the modesty of a woman. In order to attract Section 509 IPC, merely insulting a woman is not sufficient and insult to the modesty of a woman is required to have been done.”
31. Dictionary meaning of ‘insult’ is:-
(i) Speak to or treat with disrespect or scornful abuse.
(ii) A disrespectful or scornfully abusive remark or act.
32. In the present case, we have to see whether the conduct of the petitioner as alleged was done with the intention to insult the modesty of the complainant.
33. In the present case the words are “bansh na dile, ghum asena”, on a picture of the complainant taken from the complainant’s facebook page posted by her (complainant) “bansh na diley, ghum asena” the exact translation is different as it is, in particular/specific to the Bengali language. An attempt is made for the nearest translation, being “without teaching a lesson/or without creating trouble, sleep does not come/Don’t get sleep”. The picture in question being exhibited to be seen, does not intrude upon the privacy of the complaint as the said picture was on public display (social media, facebook) put up by the complainant herself on her facebook page and seen by the public at large (one with access to the said social media account). (Both parties herein are women). The alleged act done herein is prima facie not suggestive of sex according to the common notions of mankind (contemporary societal standards).
34. The interpretation given to the word ‘modesty’ by the Supreme Court in Mayor Singh’s case (Supra) is that the ultimate test for ascertaining whether ‘modesty’ has been ‘outraged’ is whether the action of the offender is such as could be perceived as one which is capable of shocking the decency of a women. That it was an affront to the normal sense of feminist decency. The complainant herself denies that her modesty has been outraged as she has struck out the said sentence in her complaint, thereby excluding the most essential ingredient required to constitute the offence under Section 509 IPC.
35. At most the alleged words may be termed as “abusive” apparently made while chatting on whatsapp. A casual statement made/used usually during conversations in Bengali language with no specific intention but at most with the intention/feeling to teach a lesson and then get good sleep (peace). As such these words or language used, prima facie do not show that it contains any sexual over tones nor has the privacy of the complainant been intruded upon as the picture was put on public forum by the complainant herself.
36. Thus the ingredients required to constitute the offence alleged are prima facie not present and to allow the proceedings to continue would amount to an abuse of the process of law/court.
37. Though the proceeding in this case is liable to be quashed considering the materials on record as already discussed, this Court keeping in mind the future of the children/students who are taught by the petitioner (who has admitted the post on whatsap) hopes that her conduct shall be more professional and focused on building the future of the students she has been entrusted with, which requires time, dedication and above all being a shining example, lighting up the path of her students career, while guiding them in building their bright future. A teacher is remembered along with one’s parent and can make or break one’s career and life. Some teachers remain the guiding light in every path taken, but sadly not the others who never knew/care to know what actually was/is the problem with the children.
38. CRR 1441 of 2020 along with CRR 1443 of 2020 are thus allowed.
39. The proceedings being Kasba Police Station Case No. 355 of 2020 and 323 of 2020 dated September 09, 2020 and September 19, 2020 respectively under Section 509 of the Indian Penal Code, 1860 corresponding to ACGR No. 3994 of 2020 and ACGR No. 4073 of 2020 pending before the Court of the Learned Additional Chief Judicial Magistrate at Alipore, South 24 Parganas are hereby quashed.
40. There will be no order as to costs.
41. All connected Applications stand disposed of.
42. Interim order if any stands vacated.
43. Copy of this judgment be sent to the learned Trial Court forthwith for necessary compliance.
44. Urgent certified website copy of this judgment, if applied for, be supplied expeditiously after complying with all, necessary legal formalities.
