Commenting on a woman's body structure and describing it as "fine" by a man is prima facie, a sexually coloured remark, attracting the offence of sexual harassment, held Justice A. Badharudeen of the Kerala High Court.

The case involves allegations against an accused for committing offenses under Sections 354A(1)(iv) and 509 of the Indian Penal Code (IPC) and Section 120 of the Kerala Police Act, 2011. It was the prosecution’s claim that the accused made sexually colored remarks and overtures intending to outrage the modesty of the defacto Complainant. On 31st March, 2017, at about 2.30 hours while the Complainant was working at the Kerala State Electricity Board (KSEB), the accused commented on the Complainant's body structure. The specific allegation is that the accused commented that the body structure of the de facto Complainant was ‘fine’ and subsequently, on 15th, 17th, and 20th June, 2017, the accused allegedly sent messages with sexual overtones to the Complainant's mobile phone.

The Petitioner’s advocate strongly argued for quashing the proceedings, claiming that the prosecution’s contention, on the face of it, does not establish the elements required to constitute the alleged offenses. It was specifically contended that a comment on a person’s body structure does not amount to a sexually colored remark under Section 354A(1)(iv) of the IPC. Similarly, the counsel argued that the allegations do not attract the provisions of Section 509 IPC or Section 120(o) of the Kerala Police Act. Therefore, the quashment of the proceedings was deemed justified by the Petitioner’s counsel.

The Advocate for the Complainant (Respondent no. 3) argued that the accused, a former Sub Engineer at KSEB, engaged in repeated misconduct. In 2013, he insulted the Complainant with vulgar language in public, prompting a complaint that led to his transfer. In 2016, he harassed her through frequent calls and abusive messages, even after being blocked, leading to further complaints. Despite these, the accused persisted, sending sexually explicit messages on multiple occasions in 2017 and misbehaving at a retirement event. Evidence includes complaints and screenshots of vulgar messages. The advocate asserted that these acts prima facie constitute the alleged offenses, justifying the continuation of proceedings.

The court referred to Section 509 of the IPC, which penalizes actions that insult a woman’s modesty or invade her privacy. The court noted that the prosecution’s allegations had prima facie established the necessary elements to bring the case under this provision. The court also referred to its earlier decision in XXXX v. State of Kerala [2024 KHC OnLine 584], where it discussed the key ingredients of Section 509.

The court stated, "Thus when utterance of any word, makes any sound or gesture, or exhibits any object, with an intention to insult the modesty of a woman or to intrude upon the privacy of a woman, the said overt acts would attract offence under Section 509 of IPC. On analysing the prosecution allegations, the ingredients to attract offence under Section 509 of IPC are made out, prima facie."

Further, the court cited the case of Raveendran V.K v. State of Kerala & Anr. [2024 (5) KHC 22] and Section 120(o) of the Kerala Police Act, which penalizes causing inconvenience or annoyance through repeated unwanted calls, messages, or emails. The court also examined the provisions of Section 354A of the IPC, highlighting that unwelcome sexual advances, demands for sexual favors, showing pornography against a woman's will, and making sexually colored remarks all fall under the category of sexual harassment.

The court concluded that the allegations against the accused were sufficient to continue the legal proceedings. Therefore, the petition to quash the proceedings was dismissed.

"Having noticed the facts of the case, it is discernible that the prosecution case is specifically made out, prima facie, to attract the offences alleged to be committed. Hence this Crl.M.C fails. In the result, this Criminal Miscellaneous Case stands dismissed. Interim order, already granted shall stand vacated. Registry is directed to forward a copy of this order to the jurisdictional court for information and for further steps." The court ruled.

Case Details: R. Ramachandran Nair v/s State Of Kerala Crl.MC No. 4729 of 2021

Advocate for the Petitioner: Adv P. Mohamed Sabah

Advocate for the Respondent: Adv. Vinay Vijay Shanker,& Public Prosecutor Sri M P Prasanth