Calcutta High Court (Appellete Side)
Deepak Singh @ Dipak Singh vs The State Of West Bengal & Anr on 9 January, 2025
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 851 of 2022
DEEPAK SINGH @ DIPAK SINGH
VS.
THE STATE OF WEST BENGAL & ANR.
For the Petitioner : Mr. Rajdeep Mazumder, Sr. Adv.
Mr. Pritam Roy,
Ms. Triparna Roy.
For the State : Mr. Antarikhya Basu.
For the Opposite Party No.2 : Mr. Ayan Bhattacharjee, Sr. Adv.
Mr. Debanjan Ghosh,
Ms. Chitrali Roy Chowdhury.
Hearing concluded on : 12.12.2024
Judgment on : 09.01.2025
SHAMPA DUTT (PAUL), J. :
1. The present revisional application has been preferred praying for
quashing of the criminal proceeding being GR case no.1527 of
2021 arising out of Haldia PS case no.106 of 2021 dated
17.08.2021 under Sections 354, 354A, 354C, 354D and 509 of
the Indian Penal Code, 1860 corresponding to zero FIR lodged at
Navi, Mumbai being CR no.0231 of 2021 dated 21.07.2021
giving rise to chargesheet being no.01 of 2022 dated 05.01.2022
Page 2
under Sections 354, 354A, 354C, 354D and 509 of the Indian
Penal Code, 1860, pending before the learned Additional Chief
Judicial Magistrate at Haldia, Purba Medinipur.
2. The petitioner’s case is as follows:-
a. He is the commandant of Coast Guard, Haldia. He has a
long service carrier of 21 years and during his tenure as
Commanding Officer there were four male and two female
Officers under him.
b. On 8th day of December, 2019 when the petitioner was
on sanctioned leave at home station Dhanbad with entire
family, he got a call from unit that the then Assistant
Commandant i.e., the present opposite party no. 2 has
disobeyed the lawful command of officiating Commanding
Officer and refused to go on patrolling plant for Maritime
Border Security and due to her denial to go for sailing /
patrolling security routine was compromised. The officiating
Commanding Officer recommended for disciplinary action to
headquarters after detail enquiry it was decided by
headquarters to constitute a disciplinary action against the
opposite party number 2 as earlier also there was report
against the opposite party number 2 of misconduct.
Page 3
c. In order to divert the attention from the incident of 8th
December, 2019, the opposite party no. 2 put a false charge
of sexual harassment against the petitioner on 19th day of
December, 2019.
d. On the basis of the complaint of the opposite party no. 2,
the headquarter constituted an internal complaint
committee as per Vishakha Guidelines by the Hon’ble Apex
Court.
e. The committee carried out detail/exhaustive enquiry
against the petitioner and come to the conclusion
that the opposite party has put false allegation
against the petitioner and he has been exonerated
from all the false charges and the committee decided
to close the case.
f. The opposite party no. 2 filed an appeal challenging the
order passed by the committee but the said appeal was
dismissed.
g. All the male Officers and another female Officer viz., Sneha
Khatayat had given a written complaint against the
opposite party no. 2 for indiscipline, misconduct and
abnormal behaviour.
Page 4
h. The opposite party no. 2 was then transferred to Mumbai
and she lodged the complaint at Navi, Mumbai which was
treated as zero FIR and the same was sent to Haldia Police
Station and the same was registered as Haldia Police
Station Case No. 106 dated 17/08/2021 under Sections
i. After completion of investigation Police submitted Charge
Sheet being number 01 of 2022 dated 05/01/2022 under
sections 354/354A/354C/354D/509 of the Indian Penal
Code against the petitioner.
3. The petitioner further states that on the basis of self same
allegation the petitioner has been exonerated by the internal
committee and therefore the instant case has been lodged
against the petitioner with mala fide intention, hence the prayer
for quashing.
4. The written complaint of the de facto complainant runs into
52 pages.
5. Supplementary affidavit dated 1st April, 2022 has been filed by
the petitioner annexing the entire documents relating to the
proceedings before the Internal Complaints Committee (for short
“ICC”) and also the documents related to the appeal against the
said order by the de facto complainant.
Page 5
6. It is further stated by the petitioner along with documents in
support thereof that the de facto complainant herein lodged
another complaint against Sk. Vaidya (D.I.G. Coast Guard) and
A.D.G. Rajan Bargotra in connection with physical and mental
harassment at the workplace at Trombay Police Station, Mumbai
but after investigation it was found that no sexual harassment
has been done with the applicant and the allegations were
baseless.
7. It is further stated that from the report of Psychological
Examination of the de facto complainant that she is mentally
disturbed officer due to old disciplinary issues and domestic
issues and the officer is a risk to the organization. The
disciplinary action was initiated on 27.12.2019 against the de
facto complainant for the incident on 08.12.2019 by the Deputy
Inspector General. There were series of misconduct by Asst.
Commandant / the opposite party no.2 herein for which she was
cautioned by the petitioner and he recommended for appropriate
disciplinary action against the officer.
8. Another supplementary affidavit has been filed by the petitioner
annexing the judgment of this High Court dated 24.04.2024
passed in WPA 26677 of 2023 filed by the opposite party no.2
herein. The said writ petition had been preferred against the
Page 6
decision of the ICC. The Court on considering the materials on
record held as follows :
“….57. Moreover, the writ courts, in judicial review,
have to be careful so as not to substitute their own
opinions for those of the adjudicating authorities
unless there is any patent unreasonableness,
arbitrariness, mala fides, perversity and/or illegality
evident on the face of the record. I do not find any
bias operating in the minds of the ICC or
reflected in the impugned decision. Rather, the
ICC complied with all principles of natural
justice by giving adequate opportunity of
hearing and carefully assessing the entire body
of evidence before dismissing the complaint of
the petitioner. Thus, the principles of natural
justice were adhered to and there was no flaw
whatsoever in the decision-making process
adopted.
58. Hence, there is no scope of interference
whatsoever with the impugned decision of the
ICC.”
9. A combined affidavit-in-opposition has been filed by the private
opposite party / de facto complainant denying the case of the
petitioner.
10. Written note of argument has been filed by the petitioner.
Page 7
11. The learned counsel for the State has placed the case diary along
with the memo of evidence. It appears from the statement
recorded under Section 164 of Cr.P.C. that the de facto
complainant herein has reiterated whatever has been stated by
her in her written complaint.
12. Learned counsel for the State has also placed the report of the
ICC wherein it appears that the Ms. Srishti Sharma, Assistant
Commandant, Dist Logistics Officer for Commander (WB) has
submitted the findings with the final opinion that the allegation
does not fall within the category of sexual harassment of women
at workplace. From the said report of the ICC, in the said
complaint before the ICC, the complainant has alleged as
follows:-
“a. Allegation : “During my detachment in Frazerganj with
Comdt Deepak Singh from 15 Aug 19 to 21 Aug 19 on various
occasions whenever steward was not around in wardroom of
ICGS Frazerganj, I have observed him staring at me in an
objectionable manner, which made me feel highly
uncomfortable. There have been attempts by him to peep in my
room and keeping track of my movements in and out of
wardroom, during lunch breakfast and leisure time, at times
has led me to avoid using the wardroom altogether. So much
so that travelling together in the vehicle used for conveyance to
Hoverport have been extremely uncomfortable.”
Page 8
Findings : “Therefore, ICC concludes that the
allegations remain inconclusive in absence of
evidence and witness.
b. Allegation : “On sorties carried out from 17 to 20 Aug 19,
on many occasions when I was operating from Pilot seat
with Comdt Deepak Singh as Co-pilot instead of giving
details and guiding me to operate, he blocked the
inclinometer and was staring at me continuously making
me feel highly uncomfortable while I struggled to control the
craft. I had to order my craft crew to come to cockpit for
giving the desirable inputs and in order to have their
presence around me.”
Findings : “The allegation remains inconclusive in
absence of evidence.”
c. Allegation : “Comdt Deepak Singh held my hand and tried
to put his arm around my shoulder in his cabin when I got
emotional while handing over my ACR in Dec 2018. I was
emotional because of the discussions on the Letter of
Caution which was issued to me in Oct 18. I was hesitant
to report it then as my family was considering alliances for
my marriage.”
Findings : “The allegation remains inconclusive in
absence of evidence.”
d. Allegation : “While carrying duties of Staff Officer for
Comdt Deepak Singh in Aug 18 he inappropriately
addressed me as ‘baby’, ‘sweety’ and attempted to justify it
by quoting field Marshal Sam Manekshaw, PV, PB, MC’s
Page 9
example which was unacceptable to me. He subsequently
tried to justify it again but it was not acceptable to me.”
Findings : “ICC found that the allegation brought in
was already resolved at unit level and DHQ-8 level.
Moreover, the address by name ‘baby’ & ‘sweety’ even
though inappropriate form of address at workplace,
but those words do not have a sexual connotation to
it.”
e. Allegation : “On 25 Nov 19 Commanding Officer attempted
to recall me from leave applied for marriage stating
administrative and operational requirements. Whereas it is
found that such requirements never existed and this was
done to willfully to harass me”.
Findings : “ICC is of the opinion that, the allegation
falls under the purview of “conditions of the service”
& “service requirement” and does not constitute
“Sexual Harassment of Women at Workplace.”
f. Allegation : “02 May 19 on the day of my birthday
malicious attempts were made to recall me from the
planned leave applied for my engagement function and
court marriage formalities. Conduct of COC board as reason
given for recall on 09 May 19 coincided with my court
marriage, whereas as per the existing CTM the board was
already planned few days later.”
Findings : “The allegation does not fall into the
category of “Sexual Harassment of Women at
Workplace”.
Page 10
g. Allegation : “Conduct of COC board without any
promulgated guidelines by CGHQ was done, wherein
Commanding Officer was the Board President. Such board
was never conducted for other Officers prior to me for other
officers this even shows improper intensions to hinder my
professional growth and later I was cleared for launching
the craft as COC without conducting Board.”
Findings : “ICC is of the opinion that Asst Comdt
Shruti MJ had to perform as per job standard and
clear exam/ assessment put to her and earned COC
like other Officers. The point of contention is related
to job performance and thus the allegation does not
fall into the purview of “Sexual Harassment of
Women at Workplace”.
h. Allegation : “Improper planning on detachments days and
untimely intimation of movements has always been done in
this squadron. This uncertainty has affected my personal
life including my aged parents staying at Haldia. I have
faced difficulty to fulfill their important requirements of
medical checkups even. On many occasions I was rarely
intimated about detachment or my duties in advance.
Considering all this I feel I was targeted and slotted for
longer detachments right from the day I joined this
squadron. No proper detachment roster is maintained till
date and this grey area is exploited for harassment. No
consideration to my planned leave applied well in advance,
willful delay in processing leave applications and no proper
intimations of detachments periods are example of attempts
to cause mental harassment especially when I was in
phase of planning my marriage.”
Page 11
Findings : “The Complaint comes under the purview
of conditions of work and does not fall into the
category of “Sexual Harassment of women at
workplace” in an organization.”
j. Allegation : “Hugging the Coast” comment- Aug 18- Post
qualifying the ACV Aptitude test I was posted to squadron
on 07 Jun 18 and I was transferred to Squadron for
undertaking my basic and advance ACV training from
Haldia. Post COMCG visit during first week of Aug 18 at
Frazerganj, I was in one of the ACV sortie as a trainee
officer with Comdt Deepak Singh and Dy Comat Ravi
Kumar as the Pilots, I was made to operate the craft under
supervision. While handling the craft my intention for
navigation was asked by Comdt Deepak Singh for which I
replied by saying I will move the craft by “Hugging the
Coast” which I was able to see nearby. On hearing this
Comdt Deepak Singh repeated the navigational terminology
with an improper tone conjoining with the sentence “she
wants to hug the coast and move”. However Comdt Deepak
twisted it that time; also I felt offended and uncomfortable
however being on controls of craft and undergoing the
training I kept quiet and momentarily could not understand
the double meaning he was indicating to me. I confronted
Comdt Deepak Singh the same day later over whatsapp
messages by requesting him to avoid such talks in my
presence, as I was uncomfortable and embarrassing the
only lady on the craft.”
Findings : “Hugging the Coast” is a navigational
terminology. This does not fall into the category of
“Sexual Harassment of Women at Workplace”.
Page 12
k. Allegations :-
i. I was posted in 88 ACV Sqn since 7*h Jun 2018. I reported
to the unit well in time and I was accompanied by my aged
parents who have been staying with me since 2017. Being
the first such kind of posting to such field unit I was not
exactly aware of the functioning of the base and took some
time to understand it. Meanwhile I was given the duties of
Staff Officer to the CO from Jul 18 however the official
allocation of this duty was done in Aug 18 along with few
other duties such as Regulating Officer, CGWWA
Coordinator & Oic H-188 also my basic ACV training was
underway.
ii. I have experience of handling the duties of staff officer to
senior officers for brief durations in my previous postings
however I found little variation in the tasks I was being
assigned during the course of my tenure. Apart from the
assistance in the official works and correspondence of the
CO like recharging his Tata sky, paying of postpaid bills,
booking train tickets, ordering cakes for Mrs Deepak Singh,
managing maid, online payment of school fees of CO’s
children from her account (Though CO subsequently
reimbursed her). On being detailed as a staff officer I came
to know that Comdt Deeapk Singh has been directing other
officers also to do his personal chores like recharging his
tatasky. I came to know about this since unit officers used
to approach me to remind Comdt Deepak Singh to return
their money. However, on reminding he has been repaying
the money to them. I have been carrying out all the duties
whether personal or official sincerely however, such
Page 13personal duties were rarely given to me in my previous
units.
iii. Comdt Deepak Singh was in the habit of humiliating me
publically as well as when alone by passing sarcastic
remarks like “shammer” etc, causing mental harassment to
me. On one occasion I was SIQ for 24 hrs for throat
infection yet he had called me in the office for some work.”
Findings : “The allegation does not fall into the
category of “Sexual Harassment of Women at
Workplace”
13. The proceedings in the present case is under Sections 354,
354A, 354C, 354D and 509 of IPC.
14. The Supreme Court in the case of Tarkeshwar Sahu vs State
of Bihar (Now Jharkhand), Appeal (Crl.) 1036 of 2005, on
29.09.2006, laid down the ingredients required to prove charge
under Section 354 IPC. The Bench of Justice S. B. Sinha and
Justice Dalveer Bhandari, held:-
“Section 354 IPC reads as under:-
“354. Assault or criminal force to woman with intent
to outrage her modesty.- Whoever assaults or uses
criminal force to any woman, intending to outrage or
knowing it to be likely that he will thereby outrage
her modesty, shall be punished with imprisonment
of either description for a term which may extend to
two years, or with fine, or with both.”
So far as the offence under Section 354 IPC is
concerned, intention to outrage the modesty of the
women or knowledge that the act of the accused
would result in outraging her modesty is the
gravamen of the offence.
Page 14
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 is an
attribute associated with female human beings as a
class. It is a virtue which attaches to a female owing
to her sex.
‘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”.
The ultimate test for ascertaining whether the
modesty of a woman has been outraged, assaulted
or insulted is that the action of the offender should
be such that it may be perceived as one which is
capable of shocking the sense of decency of a
woman. A person slapping on the posterior of a
woman in full public glare would amount to
outraging her modesty for it was not only an affront
to the normal sense of feminine decency but also an
affront to the dignity of the lady.
The word ‘modesty’ is not to be interpreted with
reference to the particular victim of the act, but as an
attribute associated with female human beings as a
class. It is a virtue which attaches to a female on
account of her sex.
We deem it appropriate to reproduce the cases of
various Courts indicating circumstances in which the
Court convicted the accused under Section 354 IPC.
In State of Kerala v. Hamsa, it was stated as under:-
“What the legislature had in mind when it used the
word modesty in Sections 354 and 509 of the Penal
Code was protection of an attribute which is peculiar
to woman, as a virtue which attaches to a female on
account of her sex. Modesty is the attribute of female
sex and she possesses it irrespective of her age. The
two offences were created not only in the interest of
the woman concerned, but in the interest of public
morality as well. The question of infringing the
modesty of a woman would of course depend upon
the customs and habits of the people. Acts which are
outrageous to morality would be outrageous to
modesty of women. No particular yardstick of
Page 15universal application can be made for measuring the
amplitude of modesty of woman, as it may vary from
country to country or society to society.”
A well known author Kenny in his book “Outlines of
Criminal Law” has dealt with the aspect of indecent
assault upon a female. The relevant passage reads
as under:-
“In England by the Sexual Offences Act, 1956, an
indecent assault upon a female (of any age) is made
a misdemeanour and on a charge for indecent
assault upon a child or young person under the age
of sixteen it is no defence that she (or he) consented
to the act of indecency.”
In the case of State of Punjab v. Major Singh , a
three-Judge Bench of this Court considered the
question whether modesty of a female child of 7
months can also be outraged. The majority view was
in affirmative. Bachawat, J., on behalf of majority,
opined as under: “The offence punishable
under section 354 is an assault on or use of criminal
force to a woman the intention of outraging her
modesty or with the knowledge of the likelihood of
doing so. The Code does not define, “modesty”. What
then is a woman’s modesty?
The essence of a woman’s modesty is her sex. The
modesty of an adult female is writ large on her body.
Young or old intelligent or imbecile, awake or
sleeping, the woman possesses a modesty capable
of being outraged. Whoever uses criminal force to her
with intent to outrage her modesty commits an
offence punishable under Section 354. 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, as for example,
when the accused with a corrupt mind stealthily
touches the flesh of a sleeping woman. She may be
an idiot, she may be under the spell of anaesthesia,
she may be sleeping, she may be unable to
appreciate the significance of the act, nevertheless,
the offender is punishable under the section.
A female of tender age stands on a somewhat
different footing. Here body is immature, and her
sexual powers are dormant. In this case, the victim
is a baby seven and half months old. She has not
Page 16
yet developed a sense of shame and has no
awareness of sex. Nevertheless from her very birth
she possesses the modesty which is the attribute of
her sex.”
In Kanhu Charan Patra v. State , the Orissa High
Court stated as under:-
“The accused entered the house and broke open the
door which two girls of growing age had closed from
inside and molested them but they could do nothing
more as the girls made good their escape. On being
prosecuted it was held that the act of accused was
of grave nature and they had committed the same in
a dare devil manner. As such, their conviction u/s
354/34 was held proper.”
The High Court of Delhi in the case of Jai Chand v.
State observed as under:-
“The accused in another case had forcibly laid the
prosecutrix on the bed and broken her pyzama’s
string but made no attempt to undress himself and
when prosecutrix pushed him away, he did make no
efforts to grab her again. It was held that it was not
attempt to rape but only outraging of the modesty of
a woman and conviction u/s 354 was proper.”
In Raja v. State of Rajasthan , it was stated as
under:-
“The accused took the minor to solitary place but
could not commit rape. The conviction of accused
was altered from Section 376/511 to one u/s 354.”
The Court in State of Karnataka v. Khaleel stated as
follows:
“The parents reached the sugarcane field when
accused was in process of attempting molestation
and immediately he ran away from the place. There
was no evidence in support of allegation of rape and
accused was acquitted of charge u/s 376 but he
was held liable for conviction under section
354/511 IPC.”
The Court in Nuna v. Emperor stated as follows:-
“The accused took off a girl’s clothes, threw her on
the ground and then sat down beside her. He said
nothing to her nor did he do anything more. It is held
that the accused committed an offence under Section
Page 17354 IPC and was not guilty of an attempt to commit
rape.”
The Court in Bishewhwar Murmu v. State stated as
under:-
“The evidence showed that accused caught hold
hand of informant/victim and when one of the
prosecution witnesses came there hearing alarm of
victim, offence u/s 376/511 was not made out and
conviction was converted into one u/s 354 for
outraging modesty of victim.”
The Court in Keshab Padhan v. State of Orissa
stated as under:-
“The test of outrage of modesty is whether a
reasonable man will think that the act of the
offender was intended to or was known to be likely
to outrage the modesty of the woman. In the instant
case, the girl was 15 years of age and in the
midnight while she was coming back with her
mother the sudden appearance of the petitioner from
a lane and dragging her towards that side
sufficiently established the ingredients of Section
354.”
The Court in Ram Mehar v. State of Haryana stated
as under:-
“The accused caught hold of the prosecutrix, lifted
her and then took her to a bajra field where he felled
her down and tried to open her salwar but could not
do so as in order to make the accused powerless the
prosecutrix had injured him by giving a blow of the
sickle. The accused failed to give his blood sample
with the result it could be presumed that his
innocence was doubtful. Ocular evidence of
prosecutrix was also corroborated by other evidence.
It was held that conviction of accused u/s 354,
376/511 was proper but taking the lenient view only
two years RI and a fine of Rs.1000/- was imposed
on him.”
In the case of Rameshwar v. State of Haryana , the
Court observed as follows:-
“Whether a certain act amounts to an attempt to
commit a particular offence is a question of fact
dependant on the nature of the offence and the steps
necessary to take in order to commit it. The
Page 18difference between mere preparation and actual
attempt to commit an offence consists chiefly in the
greater degree of determination. For an offence of an
attempt to commit rape, the prosecution must
establish that it has gone beyond the stage of
preparation.”
The Court in Shokut v. State of Rajasthan stated as
follows:-
“The accused took the prosecutrix nurse for the
purpose of attending a patient but on way he tried to
molest her and beat her also. The accused was held
guilty u/s 354/366 IPC as he by deceitful means
had taken the prosecutrix from her house and had
then outraged her modesty.”
15. Section 354 of IPC, lays down:-
“354. Assault or criminal force to woman with
intent to outrage her modesty.–Whoever assaults
or uses criminal force to any woman, intending to
outrage or knowing it to be likely that he will thereby
outrage her modesty, shall be punished with
imprisonment of either description for a term which
shall not be less than one year but which may extend
to five years, and shall also be liable to fine.
Ingredients of offence. -The essential ingredients of
the offence under sec. 354 are as follows:-
(1) A woman was assaulted or subjected to use of
assault criminal force on her; and(2) The intention of the accused was to outrage her
modesty.
(3) The accused knew that her modesty will be
outraged thereby.
the apex court has laid down the essential ingredients
of offence under sec. 354 as under:-
(a) that the assault must be on woman;
(b) that the accused must have used criminal force on
her; and
(c) that the criminal force must have been used on the
woman intending thereby to outrage her modesty or
Page 19knowing that his acts would likely to outrage her
modesty.”
16. Section 354A of IPC, lays down:-
“Section 354A Sexual Harassment and
punishment for sexual harassment:
(1)A man committing any of the following acts–
(i)physical contact and advances involving unwelcome
and explicit sexual overtures; or
(ii)a demand or request for sexual favours; or
(iii)showing pornography against the will of a woman;
or
(iv)making sexually coloured remarks, shall be guilty of
the offence of sexual harassment.
(2) Any man who commits the offence specified in
clause (i) or clause (ii) or clause (iii) of sub-section (1)
shall be punished with rigorous imprisonment for a
term which may extend to three years, or with fine, or
with both.
(3) Any man who commits the offence specified in
clause (iv) of sub-section (1) shall be punished with
imprisonment of either description for a term which
may extend to one year, or with fine, or with both.
Scope and Ingredients: A new offence called “sexual
harassment” has been created by introducing sec.
354A by the amending Act of 2013. The dictionary
meaning of “Sexual Harassment” is “as type of
employment discrimination, includes sexual advances,
requests for sexual favours, and other verbal or
physical conduct of a sexual nature prohibited” by law-
see Black‟s Law Dictionary, 6th Ed. In terms of
sec.354A, the following acts shall be treated as sexual
harassment:
i) Physical contact and advances involving
unwelcome and explicit sexual overtures; or
ii) A demand or request for sexual favours; or
iii) Showing pornography against will of a woman;
or
iv) Making sexually coloured remarks.
Page 20
The above are really the ingredients of the
offence and commission of one or more of the
above acts shall attract sec. 354A.”
From the materials in the case diary, there is no prima
facie case to show that the petitioner herein had either
assaulted or used criminal force to the complainant thereby
outraging her modesty.
17. Section 354C of IPC, lays down:-
“Section 354C. Voyeurism:- Any man who watches,
or captures the image of a woman engaging in a
private act in circumstances where she would usually
have the expectation of not being observed either by
the perpetrator or by any other person at the behest of
the perpetrator or disseminates such image shall be
punished on first conviction with imprisonment of
either description for a term which shall not be less
than one year, but which may extend to three years,
and shall also be liable to fine, and be punished on a
second or subsequent conviction, with imprisonment of
either description for a term which shall not be less
than three years, but which may extend to seven
years, and shall also be liable to fine.
Explanation:
1. For the purpose of this section, “private act” includes
an act of watching carried out in a place which, in
the circumstances, would reasonably be expected to
provide privacy and where the victim‟s genitals,
posterior or breasts are exposed or covered only in
underwear; or the victim is using a lavatory; or the
victim is doing a sexual act that is not of a kind
ordinarily done in public.
2. Where the victim consents to the capture of the
images or any act, but not to their dissemination to
third persons and where such image or act is
Page 21disseminated, such dissemination shall be
considered an offence under this section.
Ingredients of the offence:-
1) The accused watched a woman.
2) That woman was at that time engaged in a private
act and while doing such act, she had no
expectation of being seen or observed by the
accused or by any other person at the behest of the
accused or the accused captured the image of
woman while she was engaged in a private act
without any expectation of being watched by any
person at that time and the accused disseminated
such image.”
There is also no materials to show that the petitioner
watched or captured image of the complainant when
engaged in a private act as explained in explanations to
Section 354C of IPC.
18. Section 354D of IPC, lays down:-
“Section 354D. Stalking:-
(1) Any man who–
(i) follows a woman and contacts, or attempts to
contact such woman to foster personal interaction
repeatedly despite a clear indication of disinterest
by such woman; or
(ii) monitors the use by a woman of the internet, email
or any other form of electronic communication,
commits the offence of stalking;
Provided that such conduct shall not amount to
stalking if the man who pursued it proves that–
(i) it was pursued for the purpose of preventing or
detecting crime and the man accused of stalking
had been entrusted with the responsibility of
prevention and detection of crime by the State; or
Page 22
(ii) it was pursued under any law or to comply with
any condition or requirement imposed by any
person under any law; or
(iii) in the particular circumstances such conduct was
reasonable and justified.
(2) Whoever commits the offence of stalking shall be
punished on first conviction with imprisonment of
either description for a term which may extend to
three years, and shall also be liable to fine; and be
punished on a second or subsequent conviction, with
imprisonment of either description for a term which
may extend to five years, and shall also be liable to
fine.
Ingredients of offences:-
(1) Accused followed a woman and contacted, or
attempted to contact her to foster personal
interaction repeatedly despite showing clear
disinterest by the said woman, or
(2) Accused monitored the use by the woman of the
internet, email or any other form of electronic
communication.”
No prima facie materials is on record to show that the
petitioner has committed the offence under Section 354D
IPC as there is nothing to show that the petitioner either
followed or contacted the complainant (stalked) as required
under Section 354D.
19. 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
Page 23which 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.”
20. No such materials to prima facie show that the petitioner
intending to insult the modesty of the complainant uttered any
word, made any sound or gesture or exhibited any object
intended that such word or sound shall be heard, or that such
gesture or object shall be seen, by such woman or intruded upon
the privacy of such woman.
21. So the ultimate test to ascertain if the modesty of a woman
has been outraged, is that the action of the offender should
be such that it may be perceived as one which is capable of
shocking the sense of decency of a woman.
22. In the present case there is absolutely no such action on the
part of the petitioner which could be perceived as one which is
capable of shocking the sense of decency of a woman.
Page 24
23. In Ramesh Chandra Gupta vs. State of Uttar Pradesh and
Ors., 2022 LiveLaw (SC) 993, Criminal Appeal No(s). ……… of
2022 (Arising out of SLP (Crl.) No(s). 39 of 2022), the
Supreme Court held:-
“15. This Court has an occasion to consider the
ambit and scope of the power of the High Court
under Section 482 CrPC for quashing of criminal
proceedings in Vineet Kumar and Others vs.
State of Uttar Pradesh and Another, (2017)
13 SCC 369 decided on 31st March, 2017. It
may be useful to refer to paras 22, 23 and 41 of
the above judgment where the following was
stated:
“22. Before we enter into the facts of the
present case it is necessary to consider the
ambit and scope of jurisdiction under Section
482 CrPC vested in the High Court. Section 482
CrPC saves the inherent power of the High
Court to make such orders as may be
necessary to give effect to any order under this
Code, or to prevent abuse of the process of any
court or otherwise to secure the ends of justice.
23. This Court time and again has examined
the scope of jurisdiction of the High Court under
Section 482 CrPC and laid down several
principles which govern the exercise of
jurisdiction of the High Court under Section 482
CrPC. A three-Judge Bench of this Court in
State of Karnataka v. L. Muniswamy (1977) 2
SCC 699 held that the High Court is entitled to
quash a proceeding if it comes to the conclusion
that allowing the proceeding to continue would
be an abuse of the process of the Court or that
the ends of justice require that the proceeding
ought to be quashed. In para 7 of the judgment,
the following has been stated :
„7. … In the exercise of this wholesome power,
the High Court is entitled to quash a proceeding
if it comes to the conclusion that allowing the
Page 25proceeding to continue would be an abuse of
the process of the court or that the ends of
justice require that the proceeding ought to be
quashed. The saving of the High Court’s
inherent powers, both in civil and criminal
matters, is designed to achieve a salutary
public purpose which is that a court proceeding
ought not to be permitted to degenerate into a
weapon of harassment or persecution. In a
criminal case, the veiled object behind a lame
prosecution, the very nature of the material on
which the structure of the prosecution rests and
the like would justify the High Court in
quashing the proceeding in the interest of
justice. The ends of justice are higher than the
ends of mere law though justice has got to be
administered according to laws made by the
legislature. The compelling necessity for making
these observations is that without a proper
realisation of the object and purpose of the
provision which seeks to save the inherent
powers of the High Court to do justice, between
the State and its subjects, it would be
impossible to appreciate the width and contours
of that salient jurisdiction.‟
41. Inherent power given to the High Court
under Section 482 CrPC is with the purpose and
object of advancement of justice. In case solemn
process of Court is sought to be abused by a
person with some oblique motive, the Court has
to thwart the attempt at the very threshold. The
Court cannot permit a prosecution to go on if the
case falls in one of the categories as
illustratively enumerated by this Court in State
of Haryana v. Bhajan Lal 1992 Supp (1) SCC
335. Judicial process is a solemn proceeding
which cannot be allowed to be converted into an
instrument of operation or harassment. When
there are materials to indicate that a criminal
proceeding is manifestly attended with mala
fides and proceeding is maliciously instituted
with an ulterior motive, the High Court will not
hesitate in exercise of its jurisdiction under
Section 482 CrPC to quash the proceeding
under Category 7 as enumerated in State of
Page 26Haryana v. Bhajan Lal 1992 Supp (1) SCC 335
which is to the following effect :
„102. (7) Where a criminal proceeding is
manifestly attended with mala fides and/or
where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him
due to private and personal grudge.‟ Above
Category 7 is clearly attracted in the facts of the
present case. Although, the High Court has
noted the judgment of State of Haryana v.
Bhajan Lal 1992 Supp (1) SCC 335 but did not
advert to the relevant facts of the present case,
materials on which final report was submitted
by the IO. We, thus, are fully satisfied that the
present is a fit case where the High Court ought
to have exercised its jurisdiction under Section
482 CrPC and quashed the criminal
proceedings.”
16. The exposition of law on the subject relating
to the exercise of the extra-ordinary power
under Article 226 of the Constitution or the
inherent power under Section 482 CrPC are well
settled and to the possible extent, this Court
has defined sufficiently channelized guidelines,
to give an exhaustive list of myriad kinds of
cases wherein such power should be exercised.
This Court has held in para 102 in State of
Haryana and Others v. Bhajan Lal and
Others, 1992 Supp. (1) 335 as under :
“102. In the backdrop of the interpretation of
the various relevant provisions of the Code
under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary
power under Article 226 or the inherent powers
under Section 482 of the Code which we have
extracted and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the process
of any court or otherwise to secure the ends of
justice, though it may not be possible to lay
down any precise, clearly defined and
Page 27sufficiently channelised and inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation
is permitted by a police officer without an order
of a Magistrate as contemplated under Section
155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or
the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
Page 28
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.”
17. The principles culled out by this Court have
consistently been followed in the recent
judgment of this Court in Neeharika
Infrastructure Pvt. Ltd. v. State of
Maharashtra and Others, 2021 SCC Online
SC 315.”
24. Considering the materials on record, guidelines 5 and 7 of para
102 in State of Haryana vs Bhajan Lal and Ors. (Supra)
become applicable in this case. Permitting this case to proceed
against the petitioner in such facts and circumstances will be an
abuse of the process of law/court and thus against the interest
of justice.
25. None of the ingredients being prima facie present against the
petitioner herein, in respect of the offences alleged, the
proceeding is thus liable to quashed.
26. CRR 851 of 2022 is allowed.
27. The proceeding in GR case no.1527 of 2021 arising out of Haldia
PS case no.106 of 2021 dated 17.08.2021 under Sections 354,
354A, 354C, 354D and 509 of the Indian Penal Code, 1860
corresponding to zero FIR lodged at Navi, Mumbai being CR
no.0231 of 2021 dated 21.07.2021 giving rise to chargesheet
Page 29
being no.1 of 2022 dated 05.01.2022 under Sections 354, 354A,
354C, 354D and 509 of the Indian Penal Code, 1860, pending
before the learned Additional Chief Judicial Magistrate at Haldia,
Purba Medinipur, is hereby quashed in respect of the
petitioner namely Deepak Singh @ Dipak Singh.
28. All connected applications, if any, stand disposed of.
29. Interim order, if any, stands vacated.
30. Copy of this judgment be sent to the learned Trial Court for
necessary compliance.
31. Urgent Photostat certified copy of this judgment, if applied for,
be supplied to the parties expeditiously after due compliance.
[Shampa Dutt (Paul), J.]
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