Is showing middle finger a crime in India?

Final Judgment: The Court held that if one were to examine the meaning of showing the middle finger, it is sexual in nature along with the other remarks of the accused so it constitutes the offences of sexual harassment and intention to outrage the modesty of the woman under Sections 354 A and Sections 509 respectively ...

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On 3rd December 2021, in the case of Gaondevi Police Station vs. Aniket Vijay Patil, (“Case”), it was held by the Court of the Girgaon Metropolitan Magistrate in Mumbai that using abusive language against a woman and showing her the middle finger on the main road constituted sexual harassment and an attack on the fundamental right to dignity of that woman. The accused was sentenced to 6 months of imprisonment. Facts: On 17th September 2018, the victim, a 66 year-old woman (“Informant”) was travelling with her son Sameer to his office in a car. When they reached the Cadberrey Junction, a red car came from the left side and dragged them towards the divider for 100 metres. Earlier also, they had noticed that the same car had tried to overtake them. Once they reached the Cyceil Junction, the red car stopped on the lane to the left of their car and the driver pulled down the window (“Accused”). He showed his middle finger to the parties and when the informant told him to calm down; he used foul and derogatory language and then tried to jump the red light. However, he was blocked by the informant’s son and it was at this point that a traffic constable intervened and took them to the Gaondevi Police Station. An First Information Report (“FIR”) was filed under the Sections 354(A) (sexual harassment), 354(D) (stalking) and 509 (outraging the modestly of a women) of the Indian Penal Code (“IPC”).

Issues: The following issues were presented for consideration before the Court:

Whether the act of using sexually explicit language and showing the middle finger to the informant constituted an offence under Section 354 A of the IPC. Whether the accused displayed behaviour which amounted to stalking under Section 354 D of the IPC. Whether the accused intended to insult the modesty of the informant through his words and gestures, thereby committing an offence under Section 509 of the IPC. The Court examined four witnesses which included the informant and her son, the traffic constable who was on duty and the police officer who was attached to the Gaondevi Police Station and handed over the responsibility of investigating the case.

Arguments raised by Accused:

The counsel of Accused stated that while traffic constable witnessed an altercation between the parties, the informant did not tell him about any specific abusive word (as stated by witness). Another point of defense raised by the accused was that the son of the informant was a lawyer and he had lodged an FIR by using his influence. The counsel of the Accused also suggested that the informant had a habit of filing such cases to extract money from them and she had even asked a poor person like him for money. The Accused also argued that the witness testimonies were not reliable since no independent witnesses from the location of the incident were questioned. It was also stated that since the informant and her son were related, they were interested parties and their testimonies were not reliable. Accused stated that he showed the middle finger to both the informant and her son so only the informant cannot be considered the victim. Another technicality raised by the Accused was that on being questioned by the police, the informant had stated that the car of the accused had dark glasses while her son stated the contrary so this raises further doubt on the credibility of their testimony. He also argued that there was no CCTV at the location. Observations of the Court: The Court rejected the points of argued by the Accused on the following basis:

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The Court held that the statement of the traffic constable was of a technical nature and did not dilute the testimony of the informant and her son. The informant’s son may be a lawyer but it is not necessary that lawyers or their families cannot be victims of a crime. Also, the police and lawyers may be part of the legal system but they work independently and do not influence each other. The informant admitted that she had filed a different case of sexual harassment in 2017. It is an unfortunate truth that one may be a victim of molestation more than once and multiple complaints did not mean that the victim was lying. Also, it was not possible to find any independent witnesses because the area where the incident took place is a very busy and crowded traffic signal where it is not possible to stop people for questioning. Also, it is very difficult to find witnesses in cases of road rage since people generally do not like to get involved in legal matters of strangers. The relationship of the parties is not a good enough reason to discard their testimonies and since there is no other evidence available, the Courts can only scrutinize their testimonies at the most. The traffic constable had mentioned in his statement that he clearly saw an argument going on between the parties and his version of events did not contradict that of the informant and her son. This technicality is not a relevant one since the accused had anyway pulled down his window to abuse the informant and she wouldn’t have noticed whether the glass is dark or not. Also, the Supreme Court has held in the case of Appabhai vs. State of Gujarat [AIR 1988 SC 696] that the maxim ‘That false in one thing is false in whole thing’ is not applicable in India. So, just because a small part of the testimony is false, that doesn’t make the entire statement untrustworthy. Also, there was a CCTV at the location but it covered only the front part of the junction and nothing related to the incident was found in the footage but that doesn’t mean nothing happened. Also, the statement of the traffic constable shows that there was some quarrel between the parties. Final Judgment: The Court held that if one were to examine the meaning of showing the middle finger, it is sexual in nature along with the other remarks of the accused so it constitutes the offences of sexual harassment and intention to outrage the modesty of the woman under Sections 354 A and Sections 509 respectively. However, the Court ruled out the offence of stalking under Section 354 D since the accused had just tried to overtake the car. The plea of the accused to be released on good behaviour was rejected since the Court felt that the accused was old enough to know the consequences of his actions and he had committed the serious offence of trying to insult the modesty of the woman through sexually-coloured remarks and gestures. Accordingly, the Court convicted the Accused for the offence punishable under Section 354(A) of the IPC vide Section 248(2) of the Code of Criminal Procedure and sentenced him to simple imprisonment for six months with a fine of Rs.500. Court also convicted him for the offence punishable under Section 509 of the IPC vide Section 248(2) of the Code of Criminal Procedure and sentenced him to simple imprisonment for three months along with fine of Rs. 500.

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– Rhea Bazaz, Final Year Student, Symbiosis Law School, Pune

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