While granting anticipatory bail under section 438 (Direction for grant of bail person apprehending arrest) of the Criminal Procedure Code, the Session Court of Kozhikode (Kerala) has observed that exposure to dresses which are having some sexual provocative one will not make a prima facie case of sexual harassment.
The alleged act of sexual harassment
According to the prosecution, on 8th February 2020 at about 5.00 PM, the accused poet C.V. Kuttan convened a camp at Nandi beach. When the participants were returning after the commencement of the camp, the accused poet caught the hands of the complainant to lie on his lap. Thereafter, he pressed her breast and tried to outrage her modesty.
The Public Prosecutor opposing the bail application stated that it is the habit of the accused to molest the lady poets and this case is the second crime registered against the accused and more persons are ready to file complaints against the accused.
Vengeance case against the accused
Although the counsel of the accused contended that it is a false case cooked up by some enemies against him to seek vengeance. The counsel for the accused further stated that the case was registered only on 29 July 2022 and the alleged act occurred on 8th February 2020. He raised the question of delay in filing a complaint.
He also contended that the accused poet is aged 74 years and his elder daughter is a Deputy Collector. His younger daughter is an Assistant Professor at TKM Engineering College. So it is quite unfortunate to see that the lady, who is 30, has filed a complaint against the accused who has got a good reputation in society.
The Bail Order
After the complaint, a case under Sections 354A (2) (Sexual harassment and punishment for sexual harassment), 342 (Punishment for wrongful confinement), and 354 (Assault or criminal force to woman with intent to outrage her modesty) of Indian Penal Code were registered by the Koyilandy (Kerala) Police.
While issuing the bail order, the Session Court of Khozikode observed that the wording of 354 makes it very clear that there must be an intention to the accused for outraging the modesty.
Section 354A is sexual harassment. In order to attract a sexual harassment case, there must be physical contact and advances involving unwelcome and explicit sexual overtures. There must be a demand or request for sexual favours. There must be a sexually coloured remark. The photographs produced along with the bail application by the accused would reveal that the defacto complainant herself is exposing the dresses which are sexually provocative ones. So Section 354A will not prima facie stand against the accused.
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The Court further said that even admitting that there was physical contact it is impossible that a man aged 74 and physically disabled can forcefully put the defacto complainant in his lap and sexually press her breast. So it is a fit case where the accused can be granted bail.
The Kerala Court’s observation that wearing sexual provocative dresses won’t attract the provision of sexual harassment is strange. Sexual harassment under section 354A is a cognizable and bailable offense. The bail in the case may be granted as the right but the observation regarding clothing is unwarranted. This statement cannot be justified by any legal prudence.
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