'Chand Nikla' Remark To Woman Not Obscene Or Sexually Coloured: Punjab & Haryana High Court Quashes FIR
The Punjab and Haryana High Court has quashed an FIR registered against a Gurugram resident over a WhatsApp comment made in a housing society group, holding that the remark, though “not in good taste”, did not amount to obscenity, sexual harassment, or insult to modesty under the Indian Penal Code (IPC).
"Jaane kitne dinon ke baad society me abb chand nikla," had remarked the resident.
Justice Shalini Singh Nagpal said, "to attract the culpability of Section 294 IPC, the words used must be capable of arousing sexually impure thoughts in the mind of the person who heard the word or saw them, thus causing annoyance. The message posted by the petitioner does not fall in that category. Though the words used are not in good taste and appear to have been used mockingly, they do not satisfy the definition of obscenity within the four corners of Section 294 IPC."
Allowing a petition under Section 528 of the BNSS, the Court set aside FIR registered at Police Station Sector 10, Gurugram under Sections 120-B, 294, 354-A and 509 IPC, along with all consequential proceedings.
The complainant, a Principal at a Government Senior Secondary School in Gurugram and a resident of Spaze Privvy, Sector 93, had alleged that certain members of the housing society were part of a WhatsApp group named “Privvy Cultural Group”.
According to her complaint, a fellow resident posted her profile photograph in the group. The petitioner, Dheeraj Gupta, allegedly commented, “Jaane kitne dinon ke baad society me abb chand nikla.”
It was alleged that the remark was sexually coloured, lewd, and intended to embarrass, humiliate and insult her modesty. She further claimed that other members supported the comment with messages and emojis, and that the incident adversely affected her reputation and caused her mental distress. She also alleged a broader conspiracy to pressure her to withdraw from the upcoming Residents Welfare Association (RWA) election.
The petitioner contended that the allegations were fabricated and motivated by personal vendetta ad the remark was a humorous, idiomatic expression, not directed at the complainant personally.
The complainant was not even a member of the WhatsApp group at the relevant time and the essential ingredients of Sections 294, 354-A and 509 IPC were not made out.
There was no mens rea (criminal intent) and the proceedings were an abuse of process and liable to be quashed in exercise of inherent powers.
It was further argued that in her Section 164 CrPC statement, the complainant attempted to rope in other society members and that the FIR was lodged in the backdrop of tensions arising from the suicide of the petitioner's wife two days prior to the RWA elections.
Section 294 IPC (Obscenity)
The Court referred to Section 294 IPC and relied on the Supreme Court's decision in N.S. Madhanagopal v. K. Lalitha, which held that mere abusive or humiliating words do not attract Section 294 unless they satisfy the legal test of obscenity.
The High Court reiterated that for an offence under Section 294(b):
The words must be “obscene”, and they must have a tendency to deprave and corrupt those whose minds are open to immoral influences. The Court observed that while the WhatsApp group, being accessible to multiple members, could be treated as a “public place” for the purposes of Section 294, the crucial requirement of obscenity was missing.
The comment, even if mocking or inappropriate, was not lascivious, did not contain sexual content, and was not capable of arousing sexually impure thoughts. The Court noted that the first message appeared to be a reference to a popular Bollywood song and the subsequent exchange reflected a humorous tone.
Thus, no offence under Section 294 IPC was made out. Section 354-A IPC (Sexual Harassment).
Section 354-A IPC criminalises, inter alia, “sexually coloured remarks”. The Court held that the impugned message had no sexual undertones and could not be termed a sexually coloured remark. It further noted that the complainant was not part of the WhatsApp group when the comment was posted, and therefore the remark could not be said to have been directly targeted at her so as to constitute sexual harassment. Accordingly, the ingredients of Section 354-A IPC were found absent.
Section 509 IPC (Insult to Modesty)
Relying on the Supreme Court's exposition of “modesty” in Madhushree Datta v. State of Karnataka, as well as earlier decisions including Rupan Deol Bajaj v. Kanwar Pal Singh Gill, the Court reiterated that:
The essence of a woman's modesty is her sex. The ultimate test is whether the act is capable of shocking the sense of decency of a woman.
Culpable intention is the crux of the offence.
The High Court held that the words used by the petitioner, though in poor taste, had no nexus with the complainant's sexual dignity or modesty. There was no material to establish the requisite criminal intent to insult her modesty, nor any intention that the message be seen by her. Therefore, the essential ingredients of Section 509 IPC were also not satisfied.
Application of Bhajan Lal Principles
The Court referred to the parameters laid down by the Supreme Court in State of Haryana v. Bhajan Lal governing the exercise of inherent powers to quash criminal proceedings.
It held that the case squarely fell within categories (a) and (c) of Bhajan Lal, namely:
Where allegations, even if taken at face value, do not constitute an offence; and
Where uncontroverted allegations and collected evidence fail to disclose commission of any offence.
The Court observed that subjecting the petitioner to a prolonged criminal trial in such circumstances would amount to abuse of process and unnecessarily burden the courts.
Allowing the petition, the Court quashed the FIR under Sections 120-B, 294, 354-A and 509 IPC, along with all consequential proceedings qua the petitioner.
Mr. Aditya Sanghi, Advocate and Mr. Lokesh Sharma, Advocate for the petitioner.
Mr. Kshitij Bharti, Assistant Advocate General, Haryana.
Mr. Vishal Garg Narwana, Advocate and Ms. Nancy Antwal, Advocate for respondent No.2.
Title: Dheeraj Gupta v. State of Haryana and anr.