New Delhi: Fifteen years ago, Hollywood actor Richard Gere twirled Bollywood star Shilpa Shetty, and kissed her on both cheeks in front of an audience of thousands of truck drivers. The two actors were at an AIDS awareness event at the Sanjay Gandhi Transport Nagar in outer Delhi. The date was 15 April 2007.
News reports from 2007 refer to “self-appointed moral guardians” coming out on the streets soon after the event, and burning effigies of the duo. The Indian star, popular for dance numbers such as “Main aayi hoon UP Bihar lootne…”, and Gere were the subject of protests in several UP cities, including Kanpur, Ghaziabad, and Varanasi, besides Bhopal, Indore, Jaipur, Mumbai and Delhi.
What followed was a 15-year-long legal battle, which began with complaints being filed in Jaipur, Alwar and Ghaziabad, took a detour to the Supreme Court in New Delhi, and ended in a metropolitan magistrate court in Shetty’s home city, Mumbai. While the Supreme Court had stayed all proceedings in the matter for the first four years, the complaint reached the Mumbai court six years later, in 2017, due to what Shetty’s lawyer called “administrative reasons”.
Last month, on 18 January, the Mumbai court finally discharged Shetty in one of the cases. But with decisions on two more complaints pending, the actor may still have another high court and lower court battle to fight, before she can ‘kiss’ this case goodbye.
ThePrint traces the trajectory of the case and explains the legal hurdles that Shetty might still have to face.
‘Against Indian culture’
Following the kiss, three complaints were filed against Shetty and Gere — one each in Rajasthan’s Alwar and Jaipur, and another one in Ghaziabad.
The Alwar complaint, seen by ThePrint, was filed by two Mundawar lawyers, Bhoop Singh and Jagannath, naming Shetty, Gere and a TV channel (for telecasting the video of the kiss repeatedly). It said that the incident was against “Indian culture” and objected to the fact that Shetty didn’t “protest” against Gere’s “advances”.
The complaint was filed under Indian Penal Code sections 292 (sale, etc of obscene books), 293 (sale, etc of obscene objects to a young person), 294 (doing of any obscene act in any public place, to the annoyance of others) and 120B (criminal conspiracy), along with Section 67 (publishing or transmitting obscene material in electronic form) of the Information Technology Act, and Section 4 (prohibition of publication or sending any post of books, pamphlets, etc, containing indecent representation of women) of the Indecent Representation of Women (Prohibition) Act, 1986.
According to the current law, if Shetty were found guilty under these provisions, the maximum punishment would have been three years’ imprisonment, along with a fine.
The Jaipur complaint, of which ThePrint has a copy, was filed by advocate Poonam Chand Bhandari and said that the news of the incident caused the complainant “a lot of annoyance”. It was filed under Section 294 of the Indian Penal Code, read with Section 120B.
Gere ‘highly sexually erotic’, Shetty ‘cooperative’
Days after the incident, on 26 April, a Jaipur court issued an arrest warrant against Gere and also summoned Shetty to appear before it.
Examining video footage of the event, additional chief judicial magistrate Dinesh Gupta reportedly said that Gere’s behaviour was “highly sexually erotic”, “transgressed all limits of vulgarity” and “denigrated” Indian culture and values. He also opined that Shetty’s attitude towards Gere was “cooperative”. Gere had already left the country when this order was passed.
On 1 May that year, a Ghaziabad court also issued summons to Shetty, asking her to appear before it.
Shetty then approached the Supreme Court on 12 May, demanding that all the complaints against her be transferred to Mumbai.
The Supreme Court was quick to stay all proceedings in these complaints on 15 May 2007, and three days later, also allowed Shetty to travel abroad freely. On 14 March 2008, it also stayed the arrest warrants issued against Gere in the case, when the actor wanted to visit India to meet his spiritual teacher, the Dalai Lama.
The apex court went on to pass 24 orders over the course of the next four years, before finally ordering the transfer of the three complaints to the court of the chief metropolitan magistrate in Mumbai on 21 November 2011.
The short order passed by the apex court at the time clarified that since the cases have been transferred, the orders passed by the Rajasthan and Ghaziabad courts will not be given effect to.
However, after the Supreme Court order, the Jaipur complaint came up before the Mumbai court only one-and-a-half years later, on 12 July 2013. It has been listed before the court 72 times since then. A final decision on this is still pending.
The Alwar complaint took even longer to reach the Mumbai court. While Shetty’s transfer application was pending in the Supreme Court, Rajasthan Police “quietly transferred” the Alwar complaint to the Delhi Police in early 2008, saying that it should be investigated in Delhi since the incident took place there.
According to the court website, this complaint was assigned to the Mumbai court only in July 2017, almost six years after the Supreme Court order, and first came up for hearing in the court on 9 August 2017. According to court records, it came up 40 times before the court, before Shetty’s discharge in this last month.
“After the Supreme Court ordered transfer of the complaints, the matter took a lot of time, probably due to purely administrative and procedural delays,” said Shetty’s lawyer Madhukar Dalvi.
“The Poonam Chand case got assigned to the court here (Mumbai) in 2013, but the other matter (Alwar case) came to Mumbai only in 2017,” he added, saying that “when the matters came to Mumbai, that is when the learned magistrate issued notices to the accused.”
As for the Ghaziabad complaint, Dalvi said that Shetty has not received any update on it and, most likely, it hasn’t been assigned to the Mumbai court so far.
‘Kissing in public an obscene act’
In February 2017, Shetty’s lawyer filed a discharge application before the Mumbai court, in the Alwar complaint, and in April 2018 in the Jaipur case.
The application in the Alwar case was filed under Section 239 of the Code of Criminal Procedure, which lists a situation in which the accused can be discharged. It says that the magistrate can do so after going through the police report and the documents sent under it. The magistrate also needs to give an opportunity of being heard to both the parties before discharging the accused.
The application by Shetty’s lawyer called the allegations “baseless and frivolous”.
In response, the prosecution resisted her discharge, contending that there was “ample evidence” against her, and that “obscenity is a relative and subjective term”. It told the court that “in rural India…to kiss in public is an obscene act and this section object is to preserve this morality in our society (sic)”.
The assistant public prosecutor did not want Shetty to be discharged from the case, asserting that she had failed to “protest” against the kiss and that “kiss is a bilateral act”.
Another lower court, high court battle on the horizon
To Shetty’s relief, Ballard Pier, Mumbai Metropolitan Magistrate Ketaki M. Chavan allowed her discharge application in the Alwar complaint, putting an end to this case. The judge opined that Shetty was in fact “the victim of the alleged act of” Gere and called the charges against Shetty “groundless”.
The order was passed on 18 January 2022, and Shetty was discharged from the case. The prosecution may, however, challenge Shetty’s discharge in the City Civil and Sessions Court in Greater Bombay.
However, the discharge application filed in the Jaipur complaint was rejected by the judge, on a technical ground. According to the judge, a discharge application is not maintainable in such a case, since this is a ‘summons triable case’ — cases in which the punishment is of a maximum of two years.
Dalvi told ThePrint that they are contemplating approaching the Bombay High Court under Section 482 of the Code of Criminal Procedure, with a petition for quashing the proceedings in the Jaipur complaint against Shetty. Meanwhile, since the Ghaziabad complaint still hasn’t made its way to Mumbai, chances for another court battle too remain open.
(Edited by Poulomi Banerjee)
Source: The Print