Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., observed that:

It is impossible not to notice all around us, how easily the “common woman” is put down by the “common man”. Less said the better of what happens to the Third Gender!

Appellant had filed the instant appeal on being aggrieved with the Single Judge’s decision.

Bench noted that the inquiry into the complaint of sexual harassment filed by the appellant against the respondent 3/O.P. Verma was conducted before the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Petitioner was working as an Assistant Director with the ESI Hospital, Manesar, Gurgaon. Respondent 3 was posted as Deputy Director in the same hospital.

Appellant had complained that he was repeatedly subjecting her to sexual harassment by using inappropriate language with sexual overtones.

Further, the appellant submitted that she was distributing housekeeping material among the nursing staff at the ESI Hospital when respondent 3 told her to accompany him to male toilet using words that were indicative of sexual advances. Due to the said incident, the appellant felt deeply humiliated.

 Respondent 3 had commented on appellant’s dressing as well where he stated that if another button of her shirt were to open what would be the result that would follow.

On yet another occasion, when the appellant commented to other Staff that Saturdays should be a half-day as there was less work and during the rest of the time they were only playing hide and seek, the respondent 3/O.P.Verma remarked that neither had he caught the appellant nor had the appellant caught him.

The above incidents caused great anguish to the appellant.

In light of the above incident, a complaints committee was duly constituted. The Committee granted the benefit of doubt to respondent 3 and further recommended that both the officers, be relocated with immediate effect.

According to the appellant, this decision was not communicated to her and it was only on 3-07-2013 in response to an RTI query that she learnt of the decision. She filed an appeal but was also not again communicated the result of that appeal.

In the meanwhile, respondent 3/O.P. Verma retired. She, therefore, filed the writ petition challenging the recommendation of 20-01-2012.

Appellant had questioned the transfer by means of the writ petition filed by her and had also sought an independent internal departmental inquiry against the respondent 3/O.P.Verma as well as directions for criminal prosecution against him instead of the transfer. The question that presents itself is whether such relief could be granted or not.

Bench stated that since the respondent retired 5 years back it does not considers it expedient to grant such relief to the appellant of directing an independent departmental inquiry against him.

Court observed that with regard to the criminal prosecution, nothing prevented the appellant from initiating any such action against the respondent 3/O.P.Verma since the date of the incident or even since the date of the report of the Complaints Committee. Appellant did not seek such a relief from the Internal Complaints Committee even after the Act came into force in 2013.

Before parting with the instant order, the Court found it necessary to underline that:

Sexual Harassment is a serious issue that needs to be addressed at all work places urgently and sensitively.

Women are entitled to a congenial and dignified environment to live their life fully and attain their full potentiality.

With regard to Gender Conditioning, Court noted that

Gender conditioning where the man develops a superiority complex, while the woman doubts her own capacity, starts very early in life. It need not be in the form of a tutorial, but certainly as subtle data to the minds of young children, about their privileges or lack of it.

Every institution and organization must declare zero tolerance for Gender insensitivity.

In the instant case, the appellant did not know about the appropriate authority before whom to file her initial complaint.

When asked by it as to why she had lodged the complaint directly to the headquarters, she answered that she did not know the address of the ‘Woman Cell’ at the ESI Hospital and had made an enquiry from Manju Swaminathan and submitted her complaint to the Complaints Committee.

Bench also added to its observation that it cannot be overlooked that the Internal Complaints Committee is intended as a platform to provide an environment of confidence to the complainant.

Absence of eyewitnesses to the incident cannot detract from the credibility of the complainant as her statement is to be considered independently to determine whether it has a ring of truth or not.

Gender Sensitization

Gender sensitivity requires an understanding of what a woman feels when she is sexually harassed.

Though stereotyping is itself unwarranted, it has been noticed that just as in other sexual offences, a woman goes through a lot of soul-searching (again due to gender-conditioning), she tries to adopt measures of self-protection, by avoiding the perpetrator, may be even by taking leave!

Importance of Internal Complaints Committee

Internal Complaints Committee has to be set up in every workplace and every woman employee informed as to the person she can contact in the Internal Complaints Committee when faced with any unsavoury or unacceptable conduct by a male colleague.

The high standard of proof required in criminal trials is not called for during an inquiry by the Internal Complaints Committee under the Act.

There can be no insistence on production of witnesses by the complainant to corroborate her statement.

It is not enough to merely constitute Internal Complaints Committees, but it is also important that the purpose for having such a Committee and in fact for making such a law must always remain uppermost in the minds of all at the workplace.

Hence, Bench reiterated that all employers are required to sensitize all employers who work in the organization to deal with a woman, whether a colleague or a visitor or a beneficiary of services provided to the public, always remaining acutely aware of her dignity.

When a person speaks, the words have an impact and the speaker must be conscious of such impact when speaking to a woman whether from the public or a colleague.

Appeal in view of the above discussion was allowed.[X v. Union of India,  2020 SCC OnLine Del 1618, decided on 17-12-2020]


Advocates who appeared before the Court:

Advocate for the Appellant: Kamna Vohra

Advocates for the Respondents: Anil Dabas, Advocate for R-1. Yakesh Anand, Advocate for R-2,4 &5 ESIC

Case BriefsSupreme Court

Supreme Court: Clarifying the legal position on expiry of stay, the 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ said

“Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same.”

The order of the Court came after the Additional Chief Judicial Magistrate, Pune, stated in an order that the Complainant should move an application before the High Court to resume the trial. The order of the Magistrate further read that the lower Court cannot pass any order which has been stayed by the Hon’ble High Court, Bombay. The Supreme Court had, in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, 2018 SCC OnLine SC 310, held,

“35. … …. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.”

The Court, hence, reminded the Magistrates all over the country that in our pyramidical structure under the Constitution of India, the Supreme Court is at the Apex, and the High Courts, though not subordinate administratively, are certainly subordinate judicially.

“This kind of orders fly in the face of para 35 of our judgment. We expect that the Magistrates all over the country will follow our order in letter and spirit.”

Stating that the mandate of speedy justice applies to the Prevention of Corruption Act, 1947 cases as well as other cases where at trial stage proceedings are stayed by the higher court i.e. the High Court or a court below the High Court, as the case may be, the Court, hence, directed:

The directions issued by the Supreme Court in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, 2018 SCC OnLine SC 310 are:

  • In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order.
  • The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized.
  • The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.

[Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, MISCELLANEOUS APPLICATION NO. 1577 OF 2020, order dated 15.10.2020]


Read detailed report on the 2018 verdict in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation2018 SCC OnLine SC 310,  here.

Op EdsOP. ED.

Law and Psychology are two extremely fascinating subjects. However, under the Indian legal system, the two do not seem to cross paths as often as they should. Psychology, while being tricky, can also be an extremely effective tool in criminal trials in particular. It has to be put into use through extremely professional and credible individuals.

Early psychologists like Luigi Galvani and Paul Broca set out to establish that the human brain was mechanical in nature and worked like a machine. While Galvani used electricity to induce movement in a dismembered frog leg, Broca (a doctor by profession) embarked on a different experiment. Broca observed that many of his patients had a peculiar condition where they could perfectly understand what was asked of them but could not form comprehensible speech of their own.  Broca convinced a few such patients to pledge their brains for study after they were gone. He studied these brains and found out that each of these patients had damage to the same part of their brain, now known as ‘Broca’s area’, the part of the brain understood to be responsible for speech. The experiments conducted by the likes of Gulvani and Broca drew home the point that human brains, though complex, could be studied and specific parts of the brain were responsible for specific functions. Later, the rather well-known Sigmund Freud came in with his idea of Ego, Super Ego and ID. Keeping in view with the belief that the human brain could be studied, these psychologists kept grinding and came out with all of what we know today – the sympathetic mode of the brain, the parasympathetic mode, how the amygdala is responsible for perceiving danger, how the removal of corpus callosum effectively results in two brains, hippocampus and how it lays down your conscious memory, visual agnosia – where people can see things but cannot recognise them, the split brain phenomena, schizophrenia – the list is endless. Therefore, the human brain is perfectly capable of being studied and an expert at psychology should be able to give us fascinating and reliable insights into the minds of criminals, witnesses, alleged victims – thereby providing immense help and support in complex criminal trials. As to how such expert opinions are to be received would depend from case to case and jurisdiction to jurisdiction. A lot of thought is being put to this worldwide and rightly so.

Yet another interesting example of how tricky the brain can be is the example of ‘procedural memory’. Procedural memory is responsible for our skills. For example, being able to play a guitar. The procedural memory has been found to stick even if a person loses his memory. While the person may not remember a thing, give him a guitar, he is likely to start playing it perfectly well. One can find many more fascinating accounts in this regard.

Let us take another example in the seemingly unending and extremely fascinating tricks that the human mind can play and merge it with how it could cross paths with the law. Repressed memories also known as recovered memories have been seen to frequently exist in victims of extreme child abuse. The victims of such child abuse have been (at times) found to have no recollection of the abuse and the legal dilemma begins when such victims recover or claim to have recovered their memory often as late as 20-25 years after the alleged event. How potent do these instances of ‘recovered memory’ become when backed-up with corroborating evidence?

While this remains a highly contentious branch of psychology, its interplay with law remains at the heart of quite a few legal battles. The Courts in the United States seem to have dealt with this phenomenon to quite an extent and one case that came into spotlight was the murder of Catholic Sister, Cathy Cesnik in Baltimore, United States.

Cathy Cesnik’s was a teacher at Archbishop Keough High School, it is alleged that two of the priests, Fathers Joseph Maskell and E. Neil Magnus, were sexually abusing the girls at the school in addition to trafficking them to others. Cathy Cesnik went missing on November 7, 1969 and it was on January 3, 1970, that her body was found in a remote area of Lansdowne.

In 1995, Teresa Lancaster and Jean Wehner, former students at Keough claimed to have been sexually abused by Maskell and filed a lawsuit against Maskell, the school, the School Sisters of Notre Dame, the Archdiocese, and Bishop Keeler. Wehner claimed that she had had a conversation with Cathy Cesnik about what she was being made to endure and that Cesnik had told her that she would take care of it. This, according to her, was the reason Cesnik got killed. The trial court dismissed the action as time-barred by the statute of limitations. The plaintiffs appealed. A writ of certiorari was granted by the Court of Appeals of Maryland which upheld the lower court decision, ruling in part, “…that the mental process of repression of memories of past sexual abuse does not activate the discovery rule”. Wehner also claimed that Father Maskell took her to a site where she saw Cathy Cesnik’s body and that it was done to further intimidate her and make sure that she kept quiet.

The allegations made by the two ladies gained further credibility as scores of women started to come forward claiming they had undergone similar experiences with Father Maskell and E. Neil Magnus. There was a huge clamour in the United States to amend the limitation law and more than 20 States went on to codify different kinds of recovered memory laws. As a result of these changes, many lawsuits alleging child sexual abuse that occurred many years before were filed.

The law of limitation with regard to criminal cases in India is dealt with under Section 468 of the Criminal Procedure Code, 1973:

468. Bar to taking cognizance after lapse of the period of limitation.– (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.

(3)  For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

There is clearly no impediment as far as the limitation aspect is concerned, even though the Courts are usually not as liberal as the afore-mentioned section may make one believe. The real impediment is the reluctance to rely on psychology and also the lack of experts in the field. Paying more attention in this regard will certainly do us no harm. It may only end up in a more robust investigation, it may only endup in bringing more perpetrators to book and could also be a mitigating factor while sentencing, where appropriate. While the top judiciary has been vocal on the use of technology and modern means to enable a better justice delivery system, the spotlight must also shine on the immense potential that psychology has to offer in the legal field.


* Partner, L&L Partners, New Delhi

Case BriefsSupreme Court

Supreme Court: In order to ensure that the civil or criminal proceedings do not remain pending for unduly period at the trial stage, the 3-judge bench of A.K. Goel, Navin Sinha and R.F. Nariman, JJ directed that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended.

The order of the Court came after it noticed that at times, proceedings are adjourned sine die on account of stay and even after stay is vacated, intimation is not received and proceedings are not taken up. Hence, remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up.

Stating that the mandate of speedy justice applies to the Prevention of Corruption Act, 1947 cases as well as other cases where at trial stage proceedings are stayed by the higher court i.e. the High Court or a court below the High Court, as the case may be, the Court, hence, directed:

 “In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters. Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced.”

The directions issued by the Court for future cases are:

  • In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order.
  • The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized.
  • The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.

The Court was hearing the issue relating to the interpretation of Section 19(3)(c) of the Prevention of Corruption Act, 1947, and whether superior constitutional courts, namely, the High Courts in this country, are bound to follow Section 19(3)(c) in petitions filed under Articles 226 and 227 of the Constitution of India. Another question that the Court had to decide was whether the inherent powers of High Courts are available to stay proceedings under the Act under Section 482 of the Code of Criminal Procedure.

Answering the questions, the Court said:

“the order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered.”

The Court concluded by stating that the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to reappreciate the matter. Even where such challenge is entertained, and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period. Though no mandatory time limit may be fixed, the decision may not exceed two-three months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order. [Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, 2018 SCC OnLine SC 310, decided on 28.03.2018]