Calling an unknown woman 'darling' is sexual harassment under Section 354A IPC: Calcutta High Court

The Calcutta High Court on Friday held that calling an unknown woman 'darling' is offensive and a sexually coloured remark under Section 354A(i) of the Indian Penal Code (IPC) which penalises sexually coloured remarks [Janak Ram vs State of West Bengal]..Single-judge Justice Jay Sengupta at the Port Blair bench upheld the conviction of one Janak Ram (appellant/ convict) who after being apprehended in an inebriated condition, had asked a lady police officer (complainant) "kya darling, challan karne aayi hai kya?" (Hey darling, have you come to impose a fine?)". Justice Sengupta referred to Section 354A (outraging modesty of a woman) and said that the provision penalises use of sexually coloured remarks."Addressing an unknown lady, whether a police constable or not, on the street by a man, drunken or not, with the word 'darling' is patently offensive and the word used is essentially a sexually coloured remark," the single-judge held.The Court noted that the accused had claimed that there was no proof that the man was drunk. "If this was done in a sobre state, the gravity of the offence would perhaps be even more," the Court said in response to the argument. It further underlined that the prevailing standards in our society are not such that a man on the street can gleefully be permitted to use such expression in respect of an unsuspecting, unacquainted women. .As per the prosecution's case, a police team comprising the victim police constable and other police personnel were proceeding to Lall Tikrey for maintaining law and order on the eve of Durga Puja. When they reached Webi junction, they received information that a person was creating nuisance in the area.The police party reached the place, apprehended the miscreant and took him to the police station while rest of the police party including the victim stayed back at the junction.As the place was dark, they decided to go under the street light in front of a shop. When they reached the street light, the appellant who was standing in front of the shop asked the complainant the sexually coloured question, “Kya darling challan karne aai hay kya?” On this, Mayabunder Police Station registered a first information report (FIR) under Sections 354A (1) (iv) and 509 (word, gesture or act intended to insult the modesty of a woman) of the Indian Penal Code (IPC). By a judgment dated April 24, 2023, the Judicial Magistrate, First Class at North and Middle Andaman, Mayabunder convicted the appellant for offences under Sections 354A(1)(iv) and 509 of IPC and sentenced him to simple imprisonment for three months and also directed him to pay a fine of ₹500 for each of the two offences.His appeal against the same was dismissed by the Additional Sessions Judge, North & Middle Andaman on November 21, 2023. He then filed the present revisional application before the High Court against the conviction and sentence..The Court first examined Sections 354A and 509 and held that using expressions like' darling' to address an unacquainted lady would be an offence under both provisions. "At least as of now, the prevailing standards in our society are not such that a man on the street can gleefully be permitted to use such expression in respect of unsuspecting, unacquainted women," the Court said.It then noted that there was sufficient evidence provided by the prosecution to prove that the victim had indeed addressed the woman constable in the manner as alleged.Pertinently, the Court conceded that the witnesses to the incident were police personnel and there was no local person or an independent witness to support the prosecution case.However, the Court found that the evidence of the police personnel made out a clinching case for the prosecution"The non-availability of such an independent witness in the facts of the case was nothing abnormal and was also borne out from the evidence that the incident happened near a street light quite away from a shop," the Court said while upholding the conviction..As regards, the punishment, the High Court said that courts should not always go by the maximum punishment provided for the offence and should also consider the nature of the offence. It noted that the lower court had sentenced the applicant to three months in prison. It, however, modified the punishment after noting that the appellant did not "aggravate" the offence and stopped at uttering the offensive expression only. It, therefore, imposed one month imprisonment on him. .Advocates Deep Chaim Kabir and S Ajith Prasad appeared for the appellant-convict.Advocate AS Zinu represented the State..[Read Judgment]