In Varun Bhatia v. State and Another (CRL.REV.P. 1032/2018 & CRL.M.A. 48099/2018) an employee of HDFC Life Insurance filed a police complaint against her superior officer alleging that he always used his power to demand money from her. She alleged on one occasion, when she refused to give him the money, the accused used the words ‘Gandi Aurat’ against her and got into an altercation with the Complainant. Aggrieved by this incident, she called on 100 number and filed an FIR. As per the Trial Court, a prima facie case was made out against the accused under Section 509 of the Indian Penal Code, 1860 (offense of word, gesture, or act intended to insult the modesty of a woman,). The accused has filed the current petition under Section 397 (power of Sessions Court to hear appeals) read with Section 401 (High Court to exercise its revisional jurisdiction) of the CrPC seeking to set aside the order of the Learned Trial Court.
Arguments by the parties:
The Counsel for the Petitioner (Accused) asserted that the Trial Court had erred in framing charges against the accused considering there were inconsistencies and discrepancies in Complainant’s initial statement and her statement recorded under Section 164 CrPC to the police. Moreover, the Petitioner contended that the Complainant was an irregular and undisciplined employee and as a territory manager and supervisor of HDFC Life Insurance, he had written several emails to her regarding her performance and irregularity. The petitioner contends that the present complaint was filed with a malicious and malafide intention. The Petitioner submitted that there was no material on record that would justify the framing of charges against him for the alleged offence.
The Assistant Public Prosecutor (APP) argued that the case was at a preliminary stage of framing charges and the arguments raised by petitioner were a matter of discussion during the trial. The APP argues that the Complainant’s performance was not below the mark and there was no ground for discharge of the accused. Further, the APP contended that even the Internal Complaints Committee had issued a warning to the accused on the basis of prima facie material available against the accused which could be pursued.
The Court, while deciding the case clarified the position of law on the concept of charge and discharge.
Section 239 of the CrPC stipulates that an accused may be discharged if the Magistrate thinks necessary and considers the charge against the accused groundless after providing both the prosecution and accused an opportunity to be heard.
Section 240 of the CrPC on the other hand deals with Framing of charges. A charge may be framed in writing against the accused if the Magistrate thinks that there are grounds for presuming that the accused has committed an offence that could be adequately punished by him.
Judgments of various Courts on the concept of framing of charge and discharge have laid down some crucial ingredients:
- Existence of a prima facie case against the accused does not have a straight-jacket formula and would depend on the facts and circumstances of each case.
- The role of the Judge under Section 227 CrPC is to weigh the evidence to find out whether a prima facie case has been made out against the accused or not.
- Before framing the charge, the Court must apply its judicial mind to the material placed on record to be satisfied about the possibility of the commission of the offence by the accused.
- The Court only has to consider the broad probabilities of the case and the overall impact of the evidence and is not expected to dive into a detailed enquiry into the pros and cons of the matter.
- Under Section 227 and 228 CrPC, the Court has to evaluate whether the material on record prima facie point out to the existence of all ingredients of the alleged offence.
- If the materials available before the Court raises grave suspicion against the accused, the Court will be justified in framing the charge and proceeding with trial. However, to determine conviction, the charges are required to be proved beyond all reasonable doubt.
- If there are two possible perspectives and one of them raises suspicion as opposed to grave suspicion, the Trial court would be wise to discharge the accused at this stage.
- The foundational guiding principles for the Court would be adequacy and sufficiency of material on record to establish a prima facie case.
Observations of the Court:
In the present case, the decision of whether a prima facie case exists or not depends on the usage of the term ‘Gandi Aurat’ by the accused against the complainant. To decide this matter, the Court had to delve into the scope of the term modesty under Section 509 of IPC.
The Court also differentiated between Section 354 and Section 509 IPC while addressing the scope of outraging modesty of a woman. The Court clarified while Section 354 IPC dealt with cases involving direct physical contact or harm such as physical assault or force against a woman, Section 509 IPC governed instances where words, gestures or other non-physical acts with deliberate intention to insult or offend a woman’s modesty may be constituted.
While referring to the material on record in the context of charge under Section 509 IPC, the Court deconstructed the phrase ‘Gandi Aurat’ in its Hindi translation to hold that it was used in common parlance and doesn’t relate to a woman’s modesty specifically. The Court also applied the reasonable standard test to hold that ‘Gandi Aurat’ does not have the potential to invoke a strong reaction in any reasonable person to constitute a criminal offence.
The Court also considered the background and circumstances of the case and adjudged that the Petitioner’s actions did not display the requisite level of intent or knowledge as required under Section 509 IPC. Apart from the phrase in question which resulted from a dispute between the parties acting in the capacity of an employee and superior officer, there was no other material available or circumstances to indicate usage of profane, vulgar or sexually colored language that could be reasonably taken as unwelcome by the complainant.
While determining the scope of Section 509 IPC, the Court asserted that insulting a woman or being rude to her or not behaving in a chivalrous manner will not come under the ambit of outraging modesty of a woman.
The Court also noted that the proceedings before the Internal Committee were initiated subsequent to the filing of the present FIR, after the termination of Complainant’s services. Thus, the Court treated the current criminal charge as distinct and separate from the IC proceedings and was of the view that the proceedings had no bearing on the present case as the FIR was registered much prior to the initiation of the complaint with the IC.
The Court examined the conduct of the complainant as well who was irregular and absent from office and even failed to reply to the official mails of her superior officer which caused him great concern.
While concluding the case, the Hon’ble High Court elaborated on the Role of Courts while dealing with Gender-Specific Laws. The Court emphasized that when interpreting and applying gender-specific legislation, Courts should not be biased in their approach but instead should hold objectivity and principles of law at a paramount pedestal. The High Court clarified that that a gender-specific law does not imply that the result of each case should always be against the opposite gender but, the purpose of such legislations is to address and highlight the unique challenges and circumstances faced by a particular gender. The golden principle that must guide the Court should be the availability of sufficient material on record. Gender-specific laws should not in any way compromise the weight of the evidence and adherence to due process of law. Additionally, the Court emphasized the necessity to remain Gender Neutral while dealing with gender-specific offences. The judicial system must not compromise on the principles of fairness, impartiality and the rule of law. The Courts must attempt to strike a delicate equilibrium that tilts on the side of justice rather than any particular party.
Based on the facts, circumstances and insufficiency of material available on record HC acquitted the accused, and the Court set aside the Order passed by the Trial Court.
By Tusharika Vig