darling is sexual harassment

Calling Unknown Woman As ‘Darling’ Amounts to the Offence of using Sexually Coloured Remark- Calcutta High Court (Port Blair Bench)

Overview: X vs the State, (Case No: CRR 29 of 2023) is a revisional application challenging the order dated 21.11.2023 passed by Additional Session Judge, North and Middle Andaman at Mayabunder, where the accused/appellant was convicted under sections 354-A(1)(iv) and 509 of the Indian Penal Code for calling police personnel “darling” in his inebriated state.

Contention of the Prosecution: The prosecution alleged that on October 21, 2015, a police team, including the victim police constable and other personnel, were en-route to Lall Tikrey to maintain law and order during the Durga Puja festivities. While near Webi junction, they received information about someone causing disturbance in the area. The police team apprehended the individual and took him to the Police Station, while the victim and others remained at the junction. Due to the darkness, they gathered under a streetlight in front of a shop. At that moment, the accused-appellant, standing in front of the shop, directed a sexually suggestive question towards the victim asking her “question “Kya darling challan karne aai hay kya?”, prompting the registration of a case under sections 354-A (1) (iv) and 509 of the IPC at Mayabunder Police Station. The accused was arrested and later released on bail by the police station. The Judicial Magistrate found the accused guilty, sentencing him to three months of simple imprisonment and imposing a fine, with the sentences to run concurrently.

Contention of the Accused/Appellant:  The Appellant contested that ruling of conviction and sentencing displayed complete distortion. There was a factual inconsistency regarding the time of the incident left blank in the FIR. An impartial witness from the police force admitted that the accused’s remarks were intended as a joke. The manner and tone of the exchange do not warrant the application of sections 354-A(1)(iv) and 509 of the Indian Penal Code. The victim herself testified feeling humiliated due to her uniform. Testimony from police personnel, including the Investigating Officer, suggests a clash of egos and uncertainties regarding whether the incident occurred at all. Certain witnesses provided hearsay accounts, while others altered their statements compared to what they initially told the police. Despite the presence of other individuals near the shop, no independent witnesses were called upon. The Court’s stance was excessively rigid, failing to consider the Probation of Offenders Act. The words used were not obscene but merely inappropriate. Even in the context of section 509, let alone section 354-A(1) (iv), the Penal Code’s requirements were not met given the allegedly offensive term “darling” was not inherently lewd or sexually charged, being a common colloquialism in Indian society. Alternatively, even if construed as sexually suggestive, there’s no evidence it was intended to insult modesty. Section 509 of the Indian Penal Code is inapplicable. The imposed sentences were unduly severe; for section 354-A(1)(iv), the maximum penalty is one year, yet the petitioner received three months. Additionally, both penal provisions offer fines as alternatives.

Court’s Observation:

The Court held that Section 354-A of the IPC prohibits the use of sexually colored remarks. When a man, whether drunk or sober, addresses an unknown woman, including a police constable, with the term “darling” on the street, it is blatantly offensive, with the word itself constituting a sexually coloured remark. If such an act occurred in a sober state, the offense’s seriousness might even be greater. Section 509 of the IPC, among other things, concerns words, gestures, or acts intended to insult a woman’s modesty, which inherently involves sexually oriented behaviour. Therefore, using such expressions towards an unfamiliar woman can only be interpreted as intending to insult her modesty, given the prevailing societal standards. The Court determined that the assertion that the utterance was made by the accused jokingly is subjective and thus has little relevance to the case. The evidence presented during the trial unequivocally establishes the prosecution’s case beyond a reasonable doubt. While the Court upheld the conviction issued by the Trial Court and affirmed by the Appellate Court, it modified the imposed sentence. The revisional application was consequently resolved.

-By Adv Deeksha Rai

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