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No investigation is permitted by police officer unless a Magistrate orders in case of non-cognizable offence – Calcutta High Court

In the case of Babul Supriyo Vs State of West Bengal & Anr. [CRR 903 of 2017 with I.A No: CRAN 2 of 2017] Calcutta High Court held that it is expected from a representative of the people that he must be courteous in his behaviour, dignified in his manners and cautious on his words spoken by him.

In the wake of a political turmoil after arrest of a leader of opposition party in Lok Sabha, a national debate was held and telecast by a national channel, NDTV 24 X 7. In the said national debate the petitioner, an elected MP in course of such debate, when the opposite party was opposing the petitioner’s contention, he made a comment, “Mohua, are you on Mohua?”

According to the opposite party the said comment was derogatory alluding of the intoxicating liquor called Mohua which is drunk in many tribal areas in India. She also alleged that the petitioner made such comment at the fag-end of the programme. The opposite party could not raise any protest against the said remark. However, the anchor of the programme immediately reprimanded the petitioner and asked him not to make any personal remark in course of debate.

According to the opposite party such remark made by the petitioner against her caused great offence and distress and was clearly a violation of Section 509 of the Indian Penal Code. The said comment was patently untrue, false and made to maliciously defame her. The opposite party accordingly lodged an FIR against the petitioner and petitioner was arrested. The petitioner had filed an application under Section 482 of the Code of Criminal Procedure praying for quashing of the charge-sheet.

The petitioner made his submission in support of quashing of the charge-sheet on the following grounds-

  1. The statement made in the FIR by opposite party No.2 does not disclose an offence under Section 509 of the Indian Penal Code.
  2. The statement made by the petitioner in course of a debate in the wake of a political turmoil as a result of arrest of the leader of opposition party in Parliament was an ‘accidental slip’ of words. The petitioner had no mens-rea.
  3. Even assuming that the action of the petitioner was deliberate, the words ‘Mohua, are you on Mohua?’ did not amount to insult modesty of a women.
  4. Inviting this Court to read out the entire transcription of the programme, it was contended that the petitioner wanted to mean if the opposite party was in her senses.
  5. It was urged on behalf of the petitioner that in order to establish the offence, it is necessary to show that the modesty of a particular woman has been insulted by a spoken word, gesture or physical act. The word modesty has not been defined anywhere under the statute.

The opposite party-respondent submitted that-

  1. Code of Criminal Procedure (Code) clearly makes detailed provision for discharging the accused by the Magistrate on consideration of police report and the documents under Section 173 of the Code by the learned Magistrate. When there is a clear provision in the Code, the petitioner cannot take recourse of Section 482 of the Code. Thus, the instant revision, is misconceived and liable to be dismissed.
  2. It was pointed out, that after the comment was made by the petitioner to the opposite party, his twitter account was full of obscene, sexist remark against the petitioner.
  3. When a lady of political repute who represented majority mass of people of her constituency, was castigated publicly saying that she was under influence of liquor, such utterance, especially to a lady, is a sexist comment which insulted the modesty.
  4. Whenever there is assault on femininity or like quality accompanying it, it is insult on modesty within the meaning of Section 509 or ‘outraging modesty’ within the meaning of Section 354 of the Indian Penal Code.

The Hon’ble Supreme Court observed that, “On careful reading of the judicial pronouncement by the Hon’ble Supreme Court in various cases, it is found that the test for ascertaining if modesty has been outraging or not lies on determination of the question as to whether the act by the accused is capable of shocking the sense of decency of the woman. The sense of decency of the woman, if considered to explain the term ‘modesty’ within the meaning of Section 354 is her sex. Similarly, where a woman is made to feel ashamed of her sexual dignity, i.e, lowering the sexual honour of a woman in her own eyes, she feels insulted within the meaning of Section 509 of the Indian Penal Code.”

Court held that, “The petitioner, it is already stated, at the relevant point of time was a Member of Parliament. He took solemn oath to bear faith and allegiance to the constitution. By making such defamatory statement to a woman, the petitioner prima facie, not only humiliated dignity and honour of a woman, but also violated his constitutional oath. If doubt is raised in the mind of people from the utterances made by the petitioner that the at the relevant point of time she was drunken and intoxicated, this would of course an act of imputation intending to harm the reputation of the opposite party and such deliberate utterance made by the petitioner was defamatory statement within the meaning of Section 499 of the Indian Penal Code.”

Court further explained that, “In the instant case, the complainant has not made any complaint before the jurisdictional magistrate. Moreover, even where the FIR contained the allegation under Section 500 of the Code of Criminal Procedure, police did not take permission of investigation of the allegation which discloses a non-cognizable case under Section 500 of the Indian Penal Code of the jurisdictional magistrate. For the reason aforesaid there is no other alternative but to hold that the charge-sheet does not disclose commission of any offence under Section 509 of the Indian Penal Code against the accused. Secondly, the allegations in the FIR constitute only a non-cognizable offence under Section 500 of the Code of Criminal Procedure and no investigation is permitted by police officer, unless a Magistrate has issued an order for the same. However, the opposite party is at liberty to take any action, according to law, against the petitioner before the appropriate forum.”

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