Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a high-profile rape case that ignited controversy in the cine industry, Bechu Kurian Thomas, J., granted anticipatory bail to the cine artist and producer Vijay Babu. The Court held that there is no restriction in law that anticipatory bail cannot be granted to a person sitting abroad.

Abstaining to examine the application meticulously on facts, the Court said that the presumptions available under section 114(a) as well as under section 53(a) of the Evidence Act, 1872 in the cases of rape cannot be given undue preference at the stage of anticipatory bail and those presumptions will arise only when substantive evidence is adduced in a court of law i.e. at the stage of the trial.

Factual Matrix

Apprehending arrest in a rape case, the cine artist cum producer Vijay Babu had approached the Court with an application for anticipatory bail.

The applicant was alleged to have committed rape on the victim with the promise of marriage, he even alleged to have caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Noticeably, the victim is a struggling actress who was promised to have a role in the applicant’s film. The prosecution alleged that the applicant had abused the trust reposed on him by the victim and exploited her by raping her on many occasions. Moreover, even during her menstrual periods, the applicant forced himself upon her, ignoring her repeated objections. Further, even after registration of the crime, the applicant was said to have come live on Facebook, where he revealed the identity of the victim, making her a laughing stock, and even threatened to prosecute her.

The prosecution contested the application for anticipatory bail alleging that the applicant had deleted the text messages from his mobile phones for the period till 31-03-2022, and the selective deletion of WhatsApp messages was crucial, considering the victim’s statement that on 16-03-2022 she was brutally raped after being forced to consume red wine.

On the contrary, the applicant argued that the accusation was only a machination of the victim who was upset on getting information that another actress was decided to be cast as a heroine. It was also pleaded that the applicant and victim had a consensual relationship, and the victim was aware that he is a married man, therefore the offences alleged were not made out at all.

Maintainability of Anticipatory Bail Application when the Applicant is Residing Abroad

The prosecution had assailed the bail application on the ground that the same had been filed when the applicant was in Dubai and the practice of filing applications for bail while sitting outside the country should not be entertained.

Considering that with the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country, the Court opined that apprehension of arrest can arise even while the applicant is residing outside the country. Relying on Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, and Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, wherein it was held that courts cannot read into section 438 CrPC. a restriction, which the legislature had not thought it fit to impose, the Court stated,

“When a bonafide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in S.438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, Court cannot read into the provision such a restriction which the legislature did not incorporate.”

The Court relied on Souda Beevi v. S.I. of Police, 2011 SCC OnLine Ker 4242 and Shafi S.M. v. State of Kerala, 2020 SCC OnLine Ker 2928, to hold that there is no such an absolute restriction that application for anticipatory bail should not be entertained when filed from abroad, however, the Court must be convinced that the applicant is within the jurisdiction of the Court at least before the final hearing so that the conditions if any imposed, could be effectively enforced.

“Section 438 CrPC does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail.”

Therefore, the Court concluded that an application for anticipatory bail can be filed even by a person residing outside the country. However, the only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions.

Factual Analysis

The Court opined that the nuance of ‘consent’ under the Penal Code, 1860 or of ‘rape’ is not to be deliberated upon at the anticipatory bail stage, and the Court should only consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution as against the power of investigation of the police against a person accused of a serious crime.

Therefore, the Court must not get swayed by stereotypical notions of rape myths; i.e., chastity, resistance to rape, having visible physical injuries, behaving in a certain way, reporting the offence immediately, etc. Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape.

In the backdrop of above, the Court called for the case diary and made the following observations:

  • The survivor was aware that the applicant was a married man. Therefore, the applicant being involved in a subsisting marriage, there was no possibility of a legal marriage with the survivor.

  • During the period from 16-03-2022 till 14-04-2022, the survivor was not under any form of confinement.

  • The applicant and the survivor have been communicating with each other through WhatsApp and Instagram consistently and in plenty and the available messages (from 31-03-2022 to 17-04-2022) conveyed an intense relationship between them; further those communications did not refer to any instances of sexual assault.

  • While the applicant deleted the messages from 16-03-2022 till 30-03-2022 from his phones, the survivor also deleted all messages between them, for the entire period in question.

  • Applicant had already been questioned for 38 hours and he had handed over his mobile phones to the investigating officer.

  • When the other actress had been chosen as a heroine, which came to the knowledge of the survivor after 15-04-2022 and she shouted at the applicant on 17-04-2022.

  • The applicant’s passport has already been impounded; hence he cannot flee from the country.

Conclusion

Resultantly, the Court held that the applicant ought to be given the benefit of anticipatory bail, subject to the following conditions:

  • The applicant can be interrogated for the next seven days i.e.; from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required to facilitate the requirements of the investigation.

  • If the Investigating Officer intends to arrest the applicant, then he shall be released on bail on executing a bond for Rs.5,00,000 with two solvent sureties for the like sum.

  • Applicant shall not contact or interact with the victim or any of the witnesses. The applicant shall not indulge in any form of attack through social media or other modes against the victim or her family.

  • Applicant shall not leave the State of Kerala without prior permission of the jurisdictional court and shall co-operate with the investigation. Further, he shall surrender his passport as and when he is issued with a fresh one or if the impounding is cancelled.

[Vijay Babu v. State of Kerala, Bail Appl. No. 3475 of 2022, decided on 22-06-2022]


Advocates who appeared in this case :

S. Rajeev, V. Vinay, M.S. Aneer and Sarath K.P., Advocates, for the Applicant;

M.R. Rajesh, Advocate, for the Victim;

Grashious Kuriakose, Addl. Director General of Prosecution, for the State.


*Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., quashed an FIR filed for an offence under Section 376 of the Penal Code, 1860 and Section 4 of the POCSO Act, on noting that the dispute was settled and the girl and boy wanted to get married.

In the present matter, the applicant was accused of an offence registered under Section 376 of the Penal Code, 1860 and under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act).

The above-said offence was registered on the complaint of the father of the victim-girl. He filed the complaint about sexual abuse and sexual harassment of her minor daughter; hence the applicant was arrested, and charge-sheet was also filed.

The dispute was later settled, during the pendency of the prosecution.

Analysis and Decision


High Court on reading the affidavit filed by the victim-girl found that the applicant and the victim were in love with each other and now they decided to marry after settling in life in their respective careers.

The girl’s parents had also filed affidavits and gave an explanation for misunderstanding while lodging the FIR. Further, they added that they have accepted the friendship between their daughter and the appellant. Though the Court did not accept the said explanation.

High Court quashed the FIR for the reasons that both agreed to marry, and the no-objection given by the victim-girl.

Bench added that, when the applicant was in the Court, he was asked about his readiness to marry the victim-girl, and he gave the undertaking to marry her.

Therefore, the application was allowed. [Nauman Suleman Khan v. State of Maharashtra, 2022 SCC OnLine Bom 1148, decided on 29-4-2022]


Advocates before the Court:

Adv. Datta Mane, for the Applicant.

Mr. K. V. Saste, APP for the Respondent-State.

Mr. Hrishikesh P. Hartalkar, for Respondent 2.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ramesh Chandra Khulbe, J. dismissed a criminal appeal which was filed from jail assailing the judgment and order whereby the Trial Court had convicted and sentenced the appellant on the counts of Sections 376, 377, 506 Penal Code and Section 6 of POCSO Act.

Victim, who was merely a child of 9 years of age, has been traumatized at the hands of appellant who raped and sodomized the victim, who was none other than his real niece. Amicus Curiae argued that there was no evidence against the appellant; there was no medical report regarding sexual offence; and the trial Court did not assess the evidence properly. Counsel for the State has argued that the prosecutrix was minor; she supported the prosecution story; there is no infirmity in the impugned finding; and accordingly, the appeal was liable to be dismissed.

From the evidence of witnesses it was borne out that the accused-appellant who was none other than the real maternal uncle of the victim, had sexually molested the victim 2-3 times earlier than the incident of 27-04-2014 when he was nabbed red handed by his own sister. The accused not only sexually assaulted the victim but also sodomized her. The entire tale of incidents had unequivocally been disclosed by the victim who appeared in the dock of the Court. Moreover, the medical evidence in this case further corroborated the prosecution story.

The Court relied on the judgment of the Supreme Court in Ganesan v. State, (2020) 10 SCC 573 and Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74 where it was held that the testimony of a victim was found reliable and trustworthy, conviction on the basis of her sole testimony is permissible.

The Court stated that it is well settled that in cases involving sexual harassment, molestation etc., the Court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.

The Court finally dismissed the appeal holding that the testimony of the victim was absolutely trustworthy and unblemished and her evidence is of sterling quality. Therefore, without any further corroboration, the conviction of the accused relying upon the testimony of prosecutrix was sustained.[Ashok Singh Kandari v. State of Uttarakhand, 2022 SCC OnLine Utt 400, decided on 07-05-2022]


Counsel for the appellant : Mr Mukul Dangi

Counsel for the State : Mr V. S. Rathore


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. partly allowed an appeal which was filed challenging the judgment of conviction and order of sentence passed by Special POCSO judge wherein the appellant had been convicted under Section 10 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs 20,000/- with default stipulation and further convicted under Section 451 IPC and sentenced him to suffer simple imprisonment for 6 months and to pay fine of Rs. 5000 with default stipulation.

The mother of the victim girl in her complaint had stated that when she and her husband were outside their home, then, at around 2.00-2:30 p.m. the appellant had entered into the room where her girl was staying, locked the door and embraced her daughter and touched her private parts. Upon completion of investigation, the investigating officer submitted charge-sheet under Sections 448/342/354 IPC and section 8 of the POCSO Act against the accused. After completion of recording of evidences and having heard the counsel appearing for the parties, the Special Judge had convicted and sentenced the accused, as stated here-in-above.

Mr Deb, counsel appearing for the appellant (accused) submitted that there were substantial contradictions in the statement of the prosecution witnesses. He further tried to persuade the Court that the attendance register aptly proves that the accused was not present at the scene of occurrence on that date and time. He further drew attention of this court to the improved and exaggerations made by the victim girl and her mother in their statements.

The Court noted that accused was working as a Contingent worker in ONGC and the attendance register showed his attendance in the office on that date but, there was no such evidence that for any point of time he had any scope to go outside his office. Except production of attendance register there was no evidence to show that the accused was all along present in the office and did not go out. The house of the victim appeared to be close to the office where the accused discharged his duties. So, the plea of alibi as taken by the accused, according to this court, was found to be deficient.

The Court was at a loss to understand as to why the victim will be disbelieved when there was no interest to implicate the accused with a false case. Prosecution witnesses had categorically stated that they had seen the accused person on that fateful date and time and they found the victim crying, and narrated the incident to them. The Court herein had to decide the degree of offence.

The Court noticed that victim had not stated in her statement recorded under Section 164(5) Cr.P.C. that the accused had touched her private parts. She only had stated that the accused had embraced her and her deposition before the court that accused had touched her breasts and other private parts were found to be improved versions.

The Court in this situation opined that offence committed by the accused should not fall under the Section 10 of the Protection of Children from Sexual Offences (for short, POCSO) Act but may come within the purview of section 12 of the POCSO Act.

Thus, the conviction as returned by Special Judge was not interfered with however the sentence was reduced to a period of 6 (six) months with a fine of Rs. 50,000/- considering the prayer of the counsel of the appellant that he was aged about 70 (seventy) years and considering the nature of offence and the age of the accused-appellant, the appropriate sentence should be punishment for 6 (six) months.[Pramode Nama v. State of Tripura, 2022 SCC OnLine Tri 165, decided on 28-03-2022]


For the Appellant(s) : Mr B. Deb

For the Respondent(s) : Mr S. Ghosh


Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While expressing that, any organisations, establishments, private institutions are employing workers whether for wages or not in contemplation of the provisions of the Act, 2013 coming under the definition of employer, employee and workplace, they are duty bound to constitute an Internal Complaints Committee,  the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., held that, a production unit of each film industry is an establishment employing Actor Artists and other workers and therefore, such production units have to maintain an Internal Complaints Committee if they are engaging more than 10 workers

Public Interest Litigations were filed by various organizations seeking to constitute a grievance redressal mechanism against sexual harassment as per the Supreme Court directions in Vishakha v. State of Rajasthan, (1997) 6 SCC 241, and in accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

It was submitted that there is a pressing need for a grievance redressal mechanism against the sexual harassment to be instituted by the organizations in the light of the recent abusive practices and the sexual harassment faced by the women in the film industry and particularly so, since the nature of the work undertaken by Actor Artists is such that, once the production of a film is over, there is no longer a workplace for that film where such grievance can be pursued.

Question to be decided


Whether any of the respondent organizations are creating a workplace or creating an employer-employee relationship in order to attract the provisions of Act, 2013 and thereby bound to constitute an Internal Complaints Committee?

Analysis and Decision


High Court opined that the organizations associated with the film industries, who are made respondents in the petitions were not employers of the Actor Artists in the film industry. Though, these organisations have their own structure, in which employees are there and therefore, if there are any women employees employed by such organisations, they are duty bound to constitute an Internal Complaints Committee, if the employees are exceeding 10 in number in contemplation of Section 4 read with Section 6 of the Act, 2013.

Further, the Bench added that, it can be gathered that even if the respondent organisations are not duty bound to constitute an Internal Complaints Committee, a complaint will lie to the Local Committee constituted under Section 6 because the second limb of Section 9 makes it clear that where there is no internal committee constituted, the complaint can be preferred to the local committee.

Additionally, the High Court observed that so far as the film industry is concerned, the production unit is the workplace of an individual film and therefore, each production unit would have to constitute an Internal Complaints Committee, which alone can deal with the harassment against women in the contemplation of the provisions of Act, 2013.

High Court’s Opinion

(1) The production unit of each film industry is an establishment employing Actor Artists and other workers and therefore, such production units have to maintain an Internal Complaints Committee, if they are engaging more than 10 workers, as is contemplated under the Act, 2013.

(2) If any of the respondent organisations, apart from the political parties, made as respondents in W.P.(C) No.36059/2018, are duty bound to maintain Internal Complaints Committee, if they are engaging 10 workers or more for managing the office establishments and wherein women workers are employed for wages or not.

(3) If women workers are employed by any of the respondent organisations related to the film industry in which less than 10 workers are employed, then they are entitled to make suitable complaints to the Local Complaints Committee in accordance with the provisions contained under section 6 read with Section 9 of Act, 2013.

(4) Since the Association of Malayalam Movie Actors – the 3rd respondent in W.P.(C) No.33994/2018 has volunteered to appoint a committee to deal with any sexual harassment at its workplace, we record the same and accordingly to take action to notify the members of the Internal Complaints Committee, in accordance with law.

(5) From the discussions made above, we find that the political parties, which are not having any employer-employee relationship with its members and which are not carrying on with any private venture, undertaking, enterprises, institution, establishment etc. in contemplation of a ‘workplace’ as defined under section 2(o)(ii) of Act, 2013, are not liable to make any Internal Complaints Committee.

(6) In all other cases, a woman employee subjected to sexual harassment is entitled as of right to file any complaint of sexual harassment before the Local Committee in contemplation of the provisions of the act, and under section 9 r/w. Section 6 of Act, 2013.

Lastly, the Bench asked the oragnisations associated with the film industry to take steps to constitute a joint committee by including the members of organisations registered with them in tune with the provisions of Act, 2013 to deal with sexual harassment of women, which would definitely render sufficient confidence to women Actor Artists and other employees & other workers employed by the production unit ; which would in turn protect the dignity, and make the right to life and personal liberty of the women in the film industry more meaningful and fruitful.[Women in Cinema Collective v. State of Kerala, 2022 SCC OnLine Ker 1436, decided on 17-3-2022]


Advocates before the Court:

For the Petitioners:

BY ADVS.

SANTHOSH MATHEW

SRI.ARUN THOMAS

SRI.VIJAY V. PAUL

SMT.KARTHIKA MARIA

SMT.VEENA RAVEENDRAN

SRI.ANIL SEBASTIAN PULICKEL

For the Respondents:

SMT.AMMU CHARLES FOR R3

R4 BY MR.TALISH RAY

SRI.A.S.DILEEP

SRI.BINOD.P.

MS.SUSHEELA DILIP

MS.SUNITHA OJHA

SRI.SUDEEP ARAVIND PANICKER

SRI.P.S.MURALI

SHRI.N.MANOJ KUMAR, STATE ATTORNEY FOR R1 & R2

Case BriefsDistrict Court

Court of XXXII Additional Chief Metropolitan Magistrate, Bengaluru: Padmakar Vanakudre, XXXII Addl. CMM, in a case wherein a woman, alleged that she was sexually harassed on the promise to marry, Court found that she was in habit of filing multiple complaints alleging commission of similar offences which is not just a coincidence.

Factual Background

As per the allegations, the Father of the accused had contacted the complainant over the phone and spoke regarding the marriage of his son. The accused met the complainant and said that he would marry the complainant. Thereafter, the accused took the complainant for watching a movie and while during that, the accused forcible touched the private parts of the complainant, hugged and kissed her.

After a few days, the accused sent a message stating, “we cannot proceed” and denied marrying the complainant.

Hence, the accused submitted that she was sexually harassed on promise to marry her and thereby the accused committed an offence punishable under Sections 354-A, 509 and 417 of the Penal Code, 1860.

Analysis and Decision

Court noted that, while stating that the alleged offence occurred in Inox Theater, PW.2 could not state the number of people present in the theatre. Further investigating officer could not produce any material like a movie ticket, etc. to show that the complainant and accused had been to the theatre where the office was alleged and occurred.

Adding to the above, the newspaper in which the advertisement in the matrimonial column was published and seeing which the father of the accused contacted the complainant was also not produced.

Another significant point that created serious doubt in the case of the prosecution was that the incident occurred on 22-6-2019 and the complaint was lodged on 2-7-2019, which created serious doubt in the case of the prosecution.

In the instant case, the complainant did not depose regarding the offence of cheating, and it was not her case that the accused intruded upon her privacy and subjected her to sexual harassment by making a false promise to marry her.

Bench found the accused successfully established that the complainant was in habit of filing similar complaints and the fact that she had made four other complaints making the allegation regarding outrage of modesty, sexual harassment, cheating and rape makes it clear that the accused was not guilty.[State v. Iyer Ramanathan K., CC No. 24888 of 2019, decided on 12-1-2022]

Legal RoundUpWeekly Rewind

 

Top Story


Hijab Case | When Karnataka High Court temporarily restrained students from wearing hijab, religious flags, saffron shawls, etc.: Read Court’s interim order || A Recap

On 10th February, 2022, the Karnataka High Court while noting the endless agitation and closure of educational institutions indefinitely, temporarily restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.

The background to this decision were petition filed challenging the insistence of certain educational institutions that no girl students shall wear the hijab (headscarf) whilst in the classrooms

It was specifically stated in the order that the said direction will be confined to such institutions wherein the College Development Committees have prescribed the student dress code/uniform.

Remarking that “Whether wearing of hijab in the classroom is a part of essential religious practice of Islam in the constitutional guarantees, needs a deeper examination.” The Karnataka High Court is continuing to hear the submissions on the case and 6 days on the said proceedings have passed. We will update you with the decision in the matter as and when the Court concludes and pronounces it.

https://www.scconline.com/blog/post/2022/02/15/hijab-case/


Supreme Court


Section 498A IPC| Husband’s relatives cannot be forced to undergo trial in absence of specific allegations of dowry demand  

In a dowry demand and harassment case, where a woman had lodged criminal complaint against her husband and in-laws but  no specific role was attributed to the in-laws, the bench of SA Nazeer and Krishna Murari*, JJ has held that it would be unjust if the in-laws are forced to go through the tribulations of a trial and that general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. The Court observed that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged.

The Court took note of several rulings wherein the Court has expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. The Court has observed in those judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law.

“Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.”

https://www.scconline.com/blog/post/2022/02/15/section-498a-ipc-husbands-relatives-cannot-be-forced-to-undergo-trial-in-absence-of-specific-allegations-of-dowry-demand/

Explained | Can an insurance claim be repudiated in case of delay in informing the Insurance Company regarding the theft of vehicle?  

The bench of Sanjiv Khanna and Bela M. Trivedi, JJ has held that an Insurance Company cannot repudiate a claim merely on the ground that there was a delay in intimating it about the occurrence of the theft of vehicle. The Court was deciding a case relating to theft of a Truck that was insured with Oriental Insurance Company Limited. During the pendency of the complaint before the District Forum, the Insurance Company repudiated the claim of the complainant vide its letter dated 19.10.2010, stating that there was a breach of a condition of the policy which mandated immediate notice to the insurer of the accidental loss/damage, and that the complainant had intimated about the loss on 11.04.2008 i.e. after the lapse of more than five months and, therefore, the Insurance Company had disowned their liability on the claim of the complainant. While the District forum allowed the Complaint, the NCDRC reversed the said finding.

When the matter reached before the Supreme Court, it observed that, “ Of course, it is true that there was a delay of about five months on the part of the complainant in informing and lodging its claim before the Insurance Company, nonetheless, it is pertinent to note that the Insurance Company has not repudiated the claim on the ground that it was not genuine. It has repudiated only on the ground of delay.” The Court, hence, set aside the order of NCDRC.

https://www.scconline.com/blog/post/2022/02/14/explained-can-an-insurance-claim-be-repudiated-in-case-of-delay-in-informing-the-insurance-company-regarding-the-theft-of-vehicle/  

Supreme Court furthers SOP for evidence recording via video-conferencing in cases related to child victims/witnesses of human trafficking 

Addressing the issue of obviating difficulties to victims of trafficking with respect to travelling long distances for giving evidence in trial courts, the Supreme Court extended the recording of evidence of child victims/witnesses of human trafficking via video conferencing. The Court was of the opinion that the video conference procedure need not be restricted only to the period affected by Covid 19 pandemic.

https://www.scconline.com/blog/post/2022/02/12/supreme-court-furthers-sop-for-evidence-recording-via-video-conferencing-in-cases-related-to-child-victims-witnesses-of-human-trafficking/


 High Court Updates


Delhi High Court

Uphaar Case | Manner in which judicial records tampered revealed well-planned & methodical attempt to subvert justice system: Suspending sentence of Ansal brothers would amount eroding faith of public?

Stating that the manner in which Court records tampered was insidious and revealed a well-planned and methodical attempt to subvert the justice system in order to escape conviction in the Main Uphaar CaseDelhi High Court., held that since the matter relates to tampering of judicial record, the same has to be decided expeditiously in order to ensure faith of the public in the judicial system.

Genesis of the entire proceedings stemmed from the devastating fire that occurred in Uphaar Cinema which resulted in the death of 59 people due to asphyxia and caused injuries to more than 100 people.

In this case, tampering of judicial records was noted, in view of which the sentence of Ansal Brother was not suspended.

https://www.scconline.com/blog/post/2022/02/17/uphaar-cinema-fire-tragedy/

Kerala High Court

If Court finds that marriage failed due to incompatibility, but one of the parties withholds consent for mutual separation, would that be ‘Cruelty’?

“If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce”, With this observation the Kerala High Court held that the Court cannot leave the life of a spouse to mercy of the opposite spouse.

The Division Bench of this Court also expressed that,

If one of the spouses is refusing to accord divorce on mutual consent after having been convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse.

https://www.scconline.com/blog/post/2022/02/15/law-on-divorce/

Can a teacher be criminally prosecuted for enforcing reasonable force on a student in order to maintain discipline?

Kerala High Court while explaining that inflicting corporal punishment on a child by a parent or teacher is forbidden also observed that, “Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher.”

https://www.scconline.com/blog/post/2022/02/16/teacher-administering-moderate-and-reasonable-force-to-enforce-discipline-in-classroom-can-be-exposed-to-criminal-prosecution/


District Court Update


Expression of a victim’s trauma or experience is his/her fundamental right which can only be curtailed if it falls under 4 broad categories: Read on to know categories | Alleged sexual harassment case of a ScoopWhoop employee

A District Court in Delhi addressed a case wherein the CEO of ScoopWhoop, a digital media company,who was alleged of sexual harassment by one of the employees of the company sought injunction in order to stop the employees from posting content with respect to the said complaint of sexual harassment.

The Court while denying injunction, expressed that

Expression of a victim’s trauma or experience is his / her fundamental right which can only be curtained it is falls under four broad categories i.e. “libel, slander, defamation”, “contempt of court”, “offends against decency or morality” and “undermines the security or tends to overthrow the State”.

https://www.scconline.com/blog/post/2022/02/18/expression-of-a-victims-trauma-or-experience-is-his-her-fundamental-right-which-can-only-be-curtained-if-it-falls-under-4-broad-categories/


Legislation Updates 


Standard operating guidelines for vault managers and depositories – Electronic Gold Receipts ( EGR ) segment 

SEBI has issued standard operating guidelines for the vault managers and depositories – Electronic Gold Receipts ( EGR ) segment in order to ensure ease of compliance for the market participants in the EGR ecosystem as well as effective implementation of the Regulations , Standard Operating Guidelines under Regulation 28 of SEBI (Vault Managers) Regulations, 2021.

https://www.scconline.com/blog/post/2022/02/16/sebi-issues-standard-operating-guidelines-for-vault-managers-and-depositories-electronic-gold-receipts-egr-segment/

Central Motor Vehicles (Second Amendment) Rules, 2022 

On February 15, 2022, the Ministry of Road Transport and Highways has issued Central Motor Vehicles (Second Amendment) Rules, 2022 in order to prescribe norms related to safety measures for children below four years of age, riding or being carried on a motor cycle. Further, it specifies use of a safety harness and crash helmet. It also restricts speed of such motor cycles to 40 kmph.

These rules will come into force after one year from the date of publication of the Central Motor Vehicles (Second Amendment) Rules, 2022.

https://www.scconline.com/blog/post/2022/02/16/provision-relating-to-safety-measures-for-children-below-four-years-introduced-vide-central-motor-vehicles-second-amendment-rules-2022/

‘New India Literacy Programme’ [FYs 2022-2027] 

The Government approved a new scheme “New India Literacy Programme (नव भारत साक्षरता कार्यक्रम) for the period FYs 2022-2027 to cover all the aspects of Adult Education to align with National Education Policy 2020 and Budget Announcements 2021-22. The National Education Policy 2020 has recommendations for Adult Education and Lifelong Learning.

The objectives of the scheme is to impart not only foundational literacy and numeracy but also to cover other components which are necessary for a citizen of 21st century such as  critical life skills ; vocational skills development; and continuing education.

https://www.scconline.com/blog/post/2022/02/17/new-india-literacy-programme-fys-2022-2027/

Case Briefs

Patiala House Courts: Preeti Parewa, SCJ/CCJ/ARC, NDD, while addressing the alleged case of sexual harassment against the CEO of ScoopWhoop, wherein it sought an interim injunction, Court expressed that,

Expression of a victim’s trauma or experience is his / her fundamental right which can only be curtained it is falls under four broad categories i.e. “libel, slander, defamation”, “contempt of court”, “offends against decency or morality” and “undermines the security or tends to overthrow the State”. 

In the present matter, the plaintiff company submitted that defendant 1 was an employee/consultant in “UNSCRIPTED” with his last contract ending on 30-9-2021. Further, it was stated that defendant 2 was an employee of the company and Chief Executive Officer of “ScoopWhoop Media Private Limited” and its Director and Founding Member.

A sexual harassment complaint was filed by defendant 1 against defendant 2 and his wife, which was sub0judice before the Grievance Committee constituted under the POSH Act.

Adding to the above, it was noted that defendant 1 had published/circulated regarding the allegations of sexual harassment through Instagram posts and YouTube which may damage the reputation of the plaintiff company and hamper the fair enquiry.

Plaintiff company, as an interim relief sought grant of temporary injunction in favour of the plaintiff and against the defendants restraining their associates, agents, representatives, correspondents, officers, employees or any other person, entity, in print or electronics media or on social media or via internet otherwise from writing, speaking, content creation, publishing, republishing, circulating, carrying out any reports or articles or posts or reporting of any kind, directly or indirectly or in any manner pertaining to the allegations against each other and/or any other person/plaintiff’s organization pertaining to pending complaint and allegations by the defendant 1 qua alleged incident on intervening night till pendency of suit.

In view of the present application, a notice was issued to both the defendants.

Challenging the application, defendant 1 submitted that the complaint was filed before the Internal Complaints Committee of ScoopWhoop wherein no action had been taken without any consent of defendant 1, the complaint was transferred to the plaintiff company.

It was also submitted that the plaintiff could not prima facie establish that there was a loss of subscribers or goodwill or reputation of the plaintiff company which was formed 4 months and had hardly been able to generate reputation in its favour. Further, it was added that the balance of convenience did not lie in favour of the plaintiff company which was a separate entity and the sexual harassment complaint had not been made to the said company.

Analysis, Law and Decision

Court firstly mentioned the three main principles that govern the grant/refusal of injunction:

(a) prima facie case;

(b) balance of convenience; and

(c) irreparable injury;

Elaborating further, in light of the background of the present case, Bench found that the plaintiff company was in no way injured with the acts of defendant 1 since the complaint was not filed before the plaintiff company nor was defendant 1 employed with the plaintiff company.

Prima facie the alleged posts/contents/video in question did not mention the name of the plaintiff company nor were obscene/derogatory/ defamatory.

Court did not find that the alleged posts fell under the category of libel, slander, defamation, contempt of court, offends against decency or morality and undermines the security or tends to overthrow the State.

Hence, no relief was granted to the plaintiff company and the application was dismissed. [WhoopScoop (P) Ltd. v. Samdish Bhatia, CS SCJ 100/22, decided on 14-2-2022]

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., expressed its anguish at how provisions such as Sections 354A/506 of Penal Code, 1860 are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual.

Instant petition was filed under Article 226/227 of the Constitution of India read with Section 482 CrPC seeking the quashing of an FIR registered under Sections 354A/506 of the Penal Code, 1860.

Analysis, Law and Decision

High Court expressed that Supreme Court has time and again laid down the parameters that must be adhered to by a High Court while exercising its inherent power under Section 482 CrPC to quash an FIR. Along with the parameters, it has been consistently observed by the Supreme Court that the inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution, and only when such exercise if justified by the test laid down in the provision itself.

Supreme Court in the decision of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, provided a precise, clearly defined set of inflexible guidelines laying down instances where such an inherent power could be exercised for quashing of an FIR.

Hence,

“…quashing of criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive.”

 In the present matter, the content of the FIR looked sketchy and were void of any specifics regarding the offences which were allegedly committed.

Adding to the above, Court found that on a reading of the Status report also nothing regarding the offences was revealed.

As per the Status report,

“…the Petitioner and his wife were habitual complainants and have filed multiple complaints against the construction that would take place in the neighbourhood, and therefore, it is evident that the instant FIR was maliciously instituted with an ulterior motive for wreaking vengeance on the Petitioner, and with a view to spite him and his wife due to a private and personal grudge.”

 High Court expressed its anguish at how provisions such as Section 354A/506 IPC are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual. This merely trivialises the offence of sexual harassment.

Therefore, Bench found the present matter fit for exercising its inherent power to quash the FIR. [Dr Karunakar Patra v. State,    2022 SCC OnLine Del 245, decided on 24-1-2022]


Advocates before the Court:

For the petitioner: Kumar Piyush Pushkar, Advocate

For the respondent: Chirag Khurana, Advocate,

Ashsish Aggarwal, ASC for the State,

Madhusudhan Bhayana Advocate for the Complainant/Respondent 2

Case BriefsDistrict Court

Court of Session (Kottayam): While hearing a case which had lead nation to one of the most controversial outbreak and had lifted the veil to showcase the alleged atrocities and harassment behind the four walls of the Church, Gopakumar G., Addl. Sessions Judge held that what seem to be a disturbing case of sexual violence by a Bishop, intoxicated with power, authority and position was nothing but a faction feud in the Church and the victim was a mere scapegoat in the hands of priests.

Factual Backdrop

The accused, the Bishop of Jalandhar Diocese was charged under Sec.342, 376(2)(k), 376(2)(n), 376C(a), 377 and 506(II) IPC on the allegation of the victim, a nun that he had raped her. The victim was the Mother Superior of St. Francis Mission Home, Kuravilangadu, a convent belonging to Missionaries of Jesus, a congregation of Latin Catholics. The prosecution case was that during 2014, after participating in an ordination function the accused reached St. Francis Convent.

Later that night, the accused asked the victim to bring the papers relating to the renovation works of the kitchen and when she knocked at his doorsteps at around 10:45 pm, the accused suddenly locked the door and caught hold of her. He pulled her to a cot and forcefully removed her dresses. He then forcefully inserted his fingers into her vagina, and grabbed and kissed her breasts. He also made an attempt to insert his sexual organ into the mouth of the victim, and rubbed his penis on her face. He forced her to hold his penis and did onanism, using her and thus committed carnal intercourse against the order of nature. After the incident, using his power, authority and position, he threatened her that if she attempts to disclose the incident to any one, she would be eliminated.

Prosecution alleged that the victim was raped 13 times from 06.05.2014 to and 23-09-2016. From the side of the prosecution, 39 witnesses were examined and Exts.P1 to P122 were marked. The prosecution submitted,

“The biggest asset of a nun is her vow of chastity. Even after losing her maidenhead, the hierarchical norms of the congregation forced her to travel with her predator and share seat with him in many function, that too on the very next day after the sexual violence, which made her situation much worse than an ordinary woman.”

The accused, whether in position of control or dominance over the victim?

The victim testified that accused was at the helm of the affairs of the congregation and that he was controlling and administering its affairs, directly and indirectly. The other nuns had also deposed that the accused was the supreme authority of the congregation. Further, the accused was also in control of the Kitchen renovation work was being carried out by the victim. Similarly, apart from the testimony of the nuns, some priests had also deposed about the supreme authority of the accused over M.J. Congregation.

Hence, the Court concluded that there were ample documentary and oral evidence to conclude that the accused was exercising real authority over the congregation and the nuns; and was definitely a person in authority.

Wilful Non-discloser of Material Facts

  • The victim testified that the first discloser about rape was made by her to PW2, her spiritual mother in 2014, however she was failed to mention about the first discloser in her FIS. Noticing that the disclosure made to PW2 did not finds place in Sec.164 statement as well, the Court said, “Normally, a survivor would not forget to reveal about her first disclosure, in her subsequent statements.”
  • Similarly, in her subsequent disclosers to the priest of Bharananganam church as well, she had only informed him about the sexual assault committed by the accused. Similarly, before her companion sisters (PW3 and PW4), the victim only raised her apprehension fear and doubt to that she may have to share bed with the accused. But she never disclosed that she was raped or sexually abused by the accused.
  • The testimony of the witnesses would also prove that even before the councillors, the victim’s revelation was that the retaliatory measures would not have happened, had she submitted to the sexual desires of the Bishop. She did not reveal to them that she had been repeatedly raped.
  • The information regarding intercourse was omitted in her FIS as well. The explanation of the victim that her FIS was not recorded in a free atmosphere was doubted by the Court on the ground that the information of penetration was not revealed before the doctor as well.

Hence, the Bench opined that there was no consistency in the disclosure made by the victim to her companion sisters and also to the various authorities of  the Latin church and to the Syro Malabar Church as regards the real nature of the abuse and harassment meted out by the accused. The prosecution could only prove that PW7 and PW9 had been told about the rape, that too in May 2017, almost 8 months after the last incident.

Allegation of Victim being in illicit Relationship

There was a complaint against the victim by her cousin Jaya that she (victim) had illicit relationship with her husband and that she spoiled their family life. According to the victim, Jaya’s husband had repeatedly send her inappropriate messages in spite of her warning not to send such type of messages. When the act was repeated she forwarded the messages to her cousin and asked her to warn her husband not to send these types of messages. When the victim was informed about the said complaint by Sr. Regina she explained her that the allegations levelled in the letter are untrue.

The prosecution alleged that in the guise of that complaint, the victim was removed from the post of Kerala-in-charge under the diktat of the accused which was a retaliatory action against her for not yielding to his sexual demands. Subsequently, the victim was removed from the post of Mother Superior and was asked to continue in the same convent as an ordinary sister.

Though the cousin of victim had admitted before the Court that the complaint filed by her was false and motivated by revenge the same was not withdrawn by her. Further neither the complainant nor the victim had testified about the contents of the controversial messages. The Bench remarked,

“It is difficult to believe that a silly issue involving an innocuous forward, would trigger the emotions of two closely related families.” Further, the Bench added,

“Her version is that she took leave from the school and travelled for about 7 hours to meet Sr. Regina. If the issue was so trivial there was no need for PW16 to take so much of pain to inform the matter urgently.”

Medical Evidence

“One may think that the non disclosure about the penile penetration was an innocent omission from the part of the victim. But the evidence of medical report and copy of the report kept in the medical examination register proves that the victim has failed to reveal about penile penetration to the doctor as well.”

During medical examination the victim had narrated to the doctor that she was subjected to “assault including touching of private parts , inserting his fingers in victim’s vagina, forces her to touch his private parts and ejaculate in front of back.” Though it was revealed to the doctor that there were 13 episodes of sexual assault, there was no mention of penile penetration. On examination, the victim’s hymen was found torn.

Pertinently, some portion of the history narrated by the victim was found struck off in the medical report. However, since no such correction was made in the carbon copy of the medical report, the Court opined that the portion was struck off at a later point of time. The struck off part read as: “No history of penetrative sex according to the victim.”  

Prosecution Flouted the Provision of Evidence Act

The Court held that the provisions of Evidence Act were blatantly flouted by the prosecution.  Ext.P9 was a copy of the letter handed over to PW17, Bishop Sebastian Vadakkel of Ujjain diocese, who had denied the claim of the prosecution and testified that no such letter was handed over to him. Though, the prosecution had suggested that his testimony was untrue, he was not declared hostile.  As the mandatory requirement for adducing secondary evidence was not complied with, Ext.P9 was not admitted in evidence.

Similarly, Ext.P11 was a photocopy of the letter written by the victim and handed over to Apostolic Nuncio. However, the same could not be permitted as secondary evidence as the Apostolic Nuncio was not a person outside the reach of the Court. Similarly, with regard to Ext.P18, which was an e-mail sent to Apostolic Nuncio, the prosecution had failed to produce the mandatory certificate under S.65B of the Evidence Act.

Curious case of the missing mobile phone and damaged laptop

The victim was complaining right from the beginning that the accused used to send obscene messages to her phone; however, neither the content of the messages nor the phone and SIM Card of the victim was produced before the Court. The explanation provided for the same that she had abandoned her phone and SIM Card and the same was sold to the scrap dealer was a hard pill to swallow. Expressing disbelief, the Court commented,

“If PW1 and her companion sisters were vigilant enough to take the print out of the controversial messages they would not have dealt with the mobile phone in a casual manner and would not have sold the mobile phone to a scrap dealer as claimed by them.”

Worst was the case of the laptop. Though, the victim revealed that the alleged messages were retrieved and put in the laptop, the prosecution had only produced MO1 Hard disc and had claimed that the hard disc of the laptop got damaged and hence the materials stored in the laptop could not be retrieved. Thus by a strange coincidence of events, the digital evidence has not come before court, which would have corroborated the version of the victim.

Flaws in the Investigation

The Court had pointed out numerous defects and laches in the investigation:

  • The victim testified that the accused had asked her get him the papers relating to the kitchen work and when she entered his room along with papers the accused grabbed her from behind. But surprisingly, the said papers were not produced before the Court.
  • All the thirteen incidents had occurred in the guest room No.20 used by the Bishop. The victim’s evidence was that she was also staying in the same floor. Though a detailed narration of room No.20 was made in the scene mahazars, there was no mention regarding the location of the room used by the victim.
  • The victim contended that there was a struggle between herself and the accused, though she claimed that her voice did not come out. The scene mahazars showed that the room had a ventilation opening and other rooms were also there on the same floor. There was no evidence to show that the other rooms were remaining vacant, on all the 13 days of Sexual Violence. It was definitely a matter that required proper investigation. The version of those who might have stayed on the floor, would have definitely given some inputs regarding the prosecution case.
  • Though a notice u/s. 91 Cr. P.C. was given to produce the lap top or computer used for preparing Exts.P93 and 94 orders. It was replied that the computer could not be traced out. But even according to the prosecution, the laptop was serviced almost 3 months after the registration of the FIR. Investigating agency could have recovered the laptop immediately after the registration of the FIR, but that was not done.
  • The Investigating Officer failed to enquire into the history narrated by the victim to the doctor.
  • The Mobile Phones used by Jaya and her husband were kept out of Court. Statements of Jaya’s husband were not recorded.
  • The mobile phone used by the victim could not be traced.

Faction Feud in the Church

Defence contended that a group of priests were against the accused and that it was at their instance and influence that the victim and her companion sisters levelled false allegations against the accused as the accused was ordained as a Bishop at the age of 44 years and since the retiring age for Bishop is 75 years, he may become a Cardinal or may even reach a higher position. Defence had a case that the FIR letter was prepared by the rival priests, and that the victim was made a scapegoat.

Another crucial input in this regard was the interview given by PW4 (companion sister of the victim) to Abhilash Mohan, the Assistant Executive Editor Media, One Television. DW4 in her interview had admitted that they were ready to settle the matter had their demands been accepted. Further, her interview also established that the protest ended after the arrest of the accused. The Court remarked, “There is nothing wrong in organising and participating in protests…but a protest aimed solely for the arrest of a person cannot be regarded as a protest in good taste.”

Moreover, the victim had admitted that they did make two demands to the commission: Firstly, the victim and her companion sisters should be permitted to stay in the convent until June 2018, when the tenure of Sr. Regina expires. Secondly, Kuravilangadu Mission Home should be made, under the jurisdiction of Bhagalpur diocese and that those sisters who want to work in Bhagalpur diocese should be permitted to continue there.

Falsus in uno falsus in omnibus

Falsus in uno falsus in omnibus, meaning “false in one thing, false in everything”. The moot question before the Court was whether in the light of inconsistent versions of the victim at different point of time to different persons, pose questions on her credibility or whether the solitary evidence of the victim could be taken reliance.

On considering the series of e-mails produced by defence to prove that the relationship between the accused and the victim were friendly, even after the alleged sexual violence, the Bench opined that the “language used in the mails are neither formal nor official. These emails definitely give an insight into the relationship between the accused and the victim.”

The Court opined that from the inconsistent statements of the victim and prosecution witnesses, accompanied with non submission of electronic evidences, it could be gathered that the sexual allegations against the accused started coming, after the initiation of disciplinary proceedings against PW1, on the basis of the complaint preferred by her cousin.

In the said circumstances, the Court concluded that the claim of the victim that she was raped on 13 occasions under duress could not be taken reliance on the basis of her solitary testimony. In view of the inconsistent version of the victim, the Court held that she could not be categorised as a sterling witness.

Conclusion and Verdict

Holding that it is quite natural for a person at the helm of the affairs to order enquiry into a complaint, when serious allegations of inchastity are raised against a nun, that too by her own cousin, the Court opined,

“From the mere fact that the accused was instrumental in ordering an enquiry against the victim one cannot reach to a conclusion that the enquiry ordered by the accused was part of his retaliatory measure for not yielding to his sexual demands.”

Following the case of Jayaseelan v. State of Tamil Nadu, (2009) 12 SCC 275, the Court applied the maxim “falsus in uno falsus in omnibus” and held that in the instant case the grain and chaff were so inextricably mixed up, it was impossible to separate the grain from the chaff. The Court added, when it is not feasible to separate truth from falsehood, when grain and chaff are inextricably mixed up, the only available course is to discard the evidence in toto.

“There are exaggerations and embellishments in the version of the victim. She has also made every attempt to hide certain facts. It is also evident that the victim was swayed under the influence of others who had other vested interest in the matter.”

Holding that the in-fight and rivalry and group fights of the nuns, and the desire for power, position and control over the congregation was evident from the demand placed by the victim and her supporting nuns who were ready to settle the matter if their demands for a separate region under the diocese of Bihar got accepted by the church.

Accordingly, the Court acquitted the accused of the offences under Sections 376(2)(k), 376(2)(n), 342, 377, 376-C, 354 and 506(ii) of IPC. [State of Kerala v. Bishop Franco Mulakkal, Sessions Case No. 457 of 2019, decided on 14-01-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the State: Githesh J. Babu, Special Public Prosecutor

For the Defacto Complainant: John S. Ralph, Advocate

For the Accused: M/s. B. Raman Pillai & Associates & Adv. C.S. Ajayan

Patna High Court
Case BriefsHigh Courts

Patna High Court: While addressing the plight of a minor girl who was first trafficked by her own maternal uncle and was later on thrown into prostitution for monetary gains, Rajeev Ranjan Prasad, J., emphasised on need for sensitization of Judicial Officers with regard to statutory provisions of POCSO Act, JJ Act and Immoral Traffic (Prevention) Act.

Background

A raid was conducted by Begusarai Police in the house of the accused (maternal uncle of the victim) from where a girl child aged about 15 years was rescued, the victim girl was found inside the room with an unknown person, two empty bottles of wine, medicine of Aids, pregnancy test kits, eleven used condoms and 100 unused condoms were found from there and the victim girl herself admitted before police that she was being subjected to prostitution forcibly and her maternal uncle and aunt were taking away the money. The victim disclosed that she did not remember name of her parents and on refusal to get involved in prostitution she was being beaten by the accused persons.

At this stage, the respondent 2 did not claim that she happened to be the mother of the victim. Though, at the time of making her statement under Section 164 CrPC, which was recorded ten days after she was produced before the Magistrate after her recovery from the brothel, the victim claimed that her mother was living with her for last one month.

Non-compliance of Statutory Safeguards

The prosecution case was that the Special Judge (POCSO) had erroneously directed release of the minor victim of alleged sexual offences in favour of respondent 2 who claimed herself to be the mother of the victim. The prosecution alleged that the impugned order was passed in non-compliances with the mandatory provisions of the Immoral Traffic (Prevention) Act, 1956, the provisions of Juvenile Justice Act, 2015 and the provisions of Protection of Children from Sexual Offences Act, 2012.

Analysis by the Court

After about four days when the statement of the victim was recorded under S. 164 of CrPC, the respondent 2 filed an application before the Special Judge to allow her to meet the victim girl in the Balika Grih which was allowed subject to proper identification. Later on, the Superintendent, Balika Grih, informed the Special Judge that respondent 2 could not be identified in CCTV Camera by the victim girl. Opining that the letter of the Superintendent should have been an eye opener for the Special Judge, the Bench stated that by that time the victim girl had not been approached, she could not be tutored and therefore she had not recognized respondent 2. However, the Special Judge allowed the respondent 2 to meet the victim.

“After six days, if the victim girl had disclosed the name of her mother as (respondent 2), there was a possibility that during these six days the accused persons would have been able to influence her to make statements favourable to the accused.”

Later on, the application for custody was taken up for consideration and on the same day the victim girl was handed over to (respondent 2) by just taking note of the fact that the victim had desired in her statement under Section 164 CrPC that she wanted to go with her mother.

Considering the prosecution case that no inquiry was made by the Special Judge to find out the genuineness of the claim of respondent 2 that she happened to be the mother of the victim and the order was passed in complete violation of the mandatory provision to make inquiry in respect of her age, parentage etc. in terms of sub-section (2) of Section 17 of the Act of 1956, the Bench opined that the Special Judge had acted in hot haste in passing the order of release of the victim minor girl in favour of respondent 2.

Opining that the identity of respondent 2 as mother of the victim girl was still shrouded by mystery, the Bench was of the view that the Special Judge had completely erred in abiding by the mandatory provisions and by not appreciating that the child who was being placed in the hand of respondent 2 was victim of alleged immoral trafficking as she had categorically stated before Police that she was being subjected to prostitution forcibly. While it was the duty of the Court to treat the victim girl as a child in need of care and protection and she should have been ordered to be produced before the Child Welfare Committee.

Conclusion and Directions

In the backdrop of above, the Bench held that the impugned order suffered from illegalities and infirmities rendering the order illegal and bad in law as also against the interest of the victim child. Accordingly, setting aside the order, the Bench remarked,

“The fact that victim child had been recovered again from the house of the accused persons and the report of social worker saying that at this stage of her life she being subjected to perform dance and stage shows to earn her livelihood and also the livelihood of her mother further shows that she is in need of care and protection.”

Further, noticing that presently the victim girl was with the Balika Grih and the medical Board had assessed her age between 16- 17 years, the Bench directed that until she attains majority, she would continue to stay in the Balika Grih itself and being major her release should be considered in terms of Section 46 of the J.J. Act with financial support in order to facilitate her reintegration into the mainstream of the society. Additionally, the Court directed the following:

  1. The Trial Court shall ensure that the accused persons and their pairvikar do not get access to the victim girl.
  2. Proper inquiry in accordance with law as to the genuineness of the claim of respondent 2 should be held as early as possible.
  3. With the view to sensitize all the stake holders the Bench directed the State through its Chief Secretary, the Home Secretary and the Director General of Police, as also the judicial officers across the State, Bihar State Legal Services Authority and the District Legal Services Authority to ensure that they look into the mandatory provisions of the aforesaid statutes whose aim and objects are to protect the child from all kinds of exploitations.
  4. The areas of these provisions which are required to be addressed be clearly identified, minuted and a monitoring cell be constituted to duly address and comply with the mandate of these legislations.
  5. Bihar State Legal Services Authority was directed to examine as to what extent the directions issued Apne Aap Women Worldwide Trust India v. State of Bihar, 2014 SCC OnLine Pat 5013, have not been complied with and bring it to the notice of the Chief Justice of the Court to consider registering an appropriate proceeding to monitor the implementation of those directions.
  6. Lastly, the Bench directed to circulate the copy of instant judgment to all the District Judges in Bihar with request to organize a workshop in their respective Judgeship with all the judicial officers and Members of the J.J. Board and the Child Welfare Committee to discuss the laws on the subject and ensure compliances therewith.

[Hanif Ur Rahman v. State of Bihar, 2021 SCC OnLine Pat 2775, decided on 4-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Kriti Awasthi, Advocate, Sambhav Gupta, Advocate, Navnit Kumar, Advocate and Shyam Kumar, Advocate

For the Respondents: Mr.Nadim Seraj, G.P.5

For the Respondent 2: Archana Sinha, Advocate

For the Respondent 4: Prabhu Narain Sharma, Advocate

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Kauser Edappagath, J., reversed the concurrent findings of Lower Courts, whereby the accused was convicted for the offence of rape. The Bench while acquitting the accused, stated,

“Mere statement by the victim in her evidence “the accused hugged and impregnated me” without indication about penetration aspect is not sufficient to attract the offence of rape. Such a vague statement would not be a substitute for the statutory mandate as contained in the Explanation to Section 375.”

Background

The victim and her mother, both illiterate, were working as a coolie. The accused was working at a furniture shop situated near to the house of the victim. Admittedly the victim and the accused got acquainted; they fell in love and eventually, decided to marry. The prosecution case was that one day the accused went to the house of the victim, had sex with her and made her pregnant on false promise of marriage.

Concurrent Findings of Lower Courts

The Trial Court found the accused guilty under Section 376 of IPC, convicted and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/. In appeal, the appellate Court confirmed the conviction and sentence.

The conviction was based mainly on the oral testimonies of the victim and her mother. The only incriminating part in the testimony of victim was that “the accused hugged and impregnated me”. There was no other evidence to suggest penetrative sexual intercourse or that the victim gave birth to a child as alleged. Admittedly no DNA test was conducted to find out the paternity of the child.

Offence of Rape

A reading of S.375 IPC shows that to commit ‘rape’, a man must have ‘sexual intercourse’ with a woman. Though, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding, however, even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. Penetration being an essential ingredient of the offence of rape, there must be proof of actual penetration or at least penile accessing. The only witness who can prove that is the victim. But, even on a plain reading of the evidence of the victim in the instant case, such fact was not revealed. She only stated that the entered the room, hugged and impregnated her.

False Promise to Marry

The appellate court, after adverting to the evidence of the victim and her mother, observed that the consent was obtained by the accused by making a false promise to marry and such consent is non-est in law.

In Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, it was observed that for establishing false promise to marry, two propositions must be established:

  • the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given.
  • the false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

“If a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence of rape under Section 376 of the IPC unless it is established that the consent for such sexual act was obtained by him by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge.”

Therefore, prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from the very inception. The victim had no case at all during evidence that she subjected herself to sex, persuaded or believed by the promise of marriage given by the accused. On the other hand, what was stated in the FI statement was that the accused seduced her though she protested his advances and after the intercourse, he told her not to reveal the incident to anyone and left the house with a promise to marry her. Thus, even according to the prosecution case, the promise of marriage was given after the alleged sexual act and not at the initial stage.

Factual Analysis

Noticeably, on the alleged date of the incident at odd hour, when the accused knocked at the door of victim’s house, she opened it and let the accused in. According to her, thereafter he hugged and made her pregnant. She had no case that she raised alarm when he hugged her. It had also come out in evidence that she did not make any complaint regarding the said incident against the accused to anybody and there was unexplained delay of more than three months in lodging FIS.

The victim had deposed that she and her mother used to sleep together in the same room, she further stated that her mother knew when she switched on the light on the arrival of accused, therefore, the Bench opined,

“The attended circumstances clearly indicated that if at all there was sexual intercourse between the victim and the accused, it was a consensual one, that too with the knowledge of victim’s mother.”

Verdict

In the backdrop of above, the Bench was of the view that the Courts below had committed illegality in holding that the victim gave consent relying upon the false promise of the accused that he would marry her. Accordingly, the conviction and sentence passed by the courts below was set aside and the accused was acquitted. [Ranjith v. State of Kerala, 2021 SCC OnLine Ker 5116, decided on 15-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Accused: Sherly S.A, Legal Aid Counsel

For the State: Sanal P.Raj, Public Prosecutor

Case BriefsHigh Courts

Chhattisgarh High Court: Narendra Kumar Vyas, J., quashed the FIR registered against the petitioner by Respondent 4 at Women Police Station, Bilaspur (C.G.) for commission of offence punishable under Section 354(A) IPC and Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The facts of the prosecution are such that the petitioner is working as an Assistant Professor in D.P. Vipra College, Bilaspur, filed present writ petition under Article 226 of the Constitution of India for quashing FIR registered against him on the basis of complaint made by respondent 4 at Women Police Station, Bilaspur (C.G.) for commission of offence punishable under Section 354 (A) of Penal Code, 1860 i.e. IPC & Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act i.e. “the Act, 1989”. The petitioner also highlighted that a criminal case was registered the petitioner against respondent 4 along with other 33 teaching staff having committed offence of unlawful assembly, criminal intimidation for which Judicial Magistrate 1st  class convicted the accused persons including respondent 4 and imposed fine s well.

Counsel for the petitioner Mr. B P Sharma submitted that being aggrieved by the conviction order, respondent 4 lodged FIR as a counterblast to the criminal proceedings. It was further submitted that the remarks made by petitioner was “Madam yadi aap chutti chahti hain toh mujhe akele mein aakar milein” which cannot be termed as sexually coloured remarks. Hence, no ingredient of offence under Section 354 (A) IPC is made out and the offence under the Act of 1989 was also prima facie not made out.

Counsel for the respondent 4 Mr. Manoj Paranjape submitted that the alleged statement made by the complainant/respondent 4 feel humiliated and caused grievance as such statement felt as an attack to the dignity and modesty of the complainant. It was submitted that it is the feeling perceived by the victim that is of paramount consideration and not what the accused states.

The Court observed that from bare perusal of Section 3(1) (xii) of the Act of 1989, statement of the complainant and other witnesses, it cannot be prima facie established the offence has been committed with racial prejudice and that the petitioner was ever in a position to exploit respondent 4 sexually as petitioner and respondent 4 are working as Assistant Professors in the same college, therefore, it cannot be presumed that the petitioner was in a position to dominate the respondent 4 or to command or control her.

The Court observed that the contents of the complaint cannot be inferred as a sexual coloured remark against respondent 4. The remarks do not fall within the ambit of sexual harassment in order to prosecute the petitioner for commission of offence under Section 354 (A) (iv) IPC.

The Court held

“since the criminal case is going on, therefore it is counter blast on the part of respondent no. 4, as such; adjudication of the proceeding against the petitioner for commission of offence under Section 354 (A) of IPC will be nothing but an abuse.”

The Court held “FIR No. 0036 dated 25.06.2018 registered against the petitioner by Respondent No. 4 at Women Police Station, Bilaspur (C.G.) for commission of offence punishable under Section 354(A) IPC and Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, deserves to be and is hereby quashed.” [Manish Tiwari v. State of Chhattisgarh, 2021 SCC OnLine Chh 3799, decided on 01-11-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: Narendra Kumar Vyas J. allowed the petition and remarked “any victim of sexual harassment at workplace should not run pillar to post to get her redressal”.

The petitioner is a Senior Professor of English posted at Government J.P. Verma, P.G. Arts and Commerce College, Bilaspur. Respondent 5, an Assistant Professor in English and posted at Government College, Akaltara visited Government J.P. Verma P.G. Arts and Commerce College, Bilaspur and used obscene language about the petitioner. He used words “Tripathi Chalo Maja Kare Tum to Janti Ho Pichle Bara Varso se Tumhare Mere Saririk Sambandh Hai Aur Itne He Varso Se Tum Meri Rakhel Ho” in presence of number of professors. The petitioner informed the authorities to take action but no action was taken, and thus, she made a complaint to respondent 1 to the Government of Chhattisgarh. A preliminary fact finding inquiry was conducted but not to much avail and neither the principal after receiving complaint lodged any report nor has given permission or direction to the petitioner to lodge FIR, so she has not lodged the report directly. The above events demonstrate that the guidelines given by the Vishaka Committee was not followed as the incident has been taken place in the workplace, therefore, the employer should have forwarded the copy of the complaint along with inquiry report to the police station, so the police can take cognizance on the complaint.

Counsel for the State submitted that the allegation of the petitioner that she was sexually harassed at workplace is not applicable to the present facts of the case as respondent 5 was working at Government College, Akaltara whereas the petitioner was working at J.P. Verma, P.G. Arts and Commerce College, Bilaspur. As such inquiry cannot be initiated against respondent 5 for sexual harrassment at workplace as the workplaces are entirely different.

The Court relied on Vishaka v. State of Rajasthan, (1997) 6 SCC 241 and observed that Prevention of Sexual Harassment at Workplace Act i.e. POSH Act has been formulated in pursuance of the guidelines of the Supreme Court in case of Vishaka (supra).  Also, the petitioner and respondent 5 are employees of State Government working in the Higher Education Department. Their service conditions are governed by Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966.

 Will the incident attract the term “employer” within its ambit?

The Court observed that they are appointed by State Government, Higher Education Department, as such, they are employed by the same employer. The employer has been defined in Section 2(g) of the Act, 2013 which means in relation to any department, organization, undertaking, establishment, enterprises, office, branch or unit of the appropriate government or a local authority, the head of that department and clause (II) of the Section provides that in any workplace not covered under clause (I) any person responsible for the management, supervision and control of the workplace will be called as employer, thus, Secretary Higher Education Department, Director of Higher Education Department and Principal of the Institution will be employer so far as the Act, 2013 is concerned, therefore, respondent 4 can very well fall within ambit of ‘employer’ under the Act, 2013, thus, respondent 1 and respondent 4 being employer should have taken action as per the Act, 2013 and they have failed to discharge their duties.

Whether, the act committed by respondent 5 against petitioner would amount to sexual harassment within “workplace”?

The petitioner was working at J.P. Verma, P.G. Arts and Commerce College, Bilaspur where respondent 5 has visited and made certain obscene remarks against petitioner, therefore, as per the Section 2(o) of the Act the incident has taken at workplace where petitioner was working. The workplace has to be considered, the place of working of the victim not on the basis of offender, as such, it is held that petitioner was subjected to harassment at workplace. Therefore, the incident has taken place at workplace and since the incident has happened at workplace, either respondent 1 or respondent 4 should have taken action as per the judgment of Vishaka (supra) and the Act, 2013.

The Court thus directed “the Secretary / Director / their authorized persons from Higher Education or Principal of the College where the petitioner was posted, shall initiate proceedings against respondent No. 5 for registration of FIR on the basis of complaint made by the petitioner and materials collected by the facts finding Committee within two months from the date of receipt of copy of this order.”

[Savitri Tripathi v. State of Chhattisgarh, 2021 SCC OnLine Chh 3203, decided on 25-10-2021]


Appearances

For Petitioner: Mr. Awadh Tripathi

For State: Mr. G.I. Sharan

For Respondent 4: Mr. Kishore Bhaduri and Mr. Sabyasachi Bhaduri

For Respondent 5: Shri Arvind Shrivastava


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Noting allegations against an employer with regard to the sexual harassment Sanjeev Sachdeva, J., expressed that,

“…instead of providing assistance to the aggrieved woman in prosecuting her complaint of sexual harassment, the Akademi has been opposing her tooth and nail and has even terminated her services pending the inquiry before the Local Committee.”

Note:

In view of Section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the petitioners name has been kept confidential and would be referred to as the “aggrieved woman” and similarly, the name of the officer against whom the complaint has been made shall be kept confidential and he would be referred to as the “Secretary”.

Questions for Determination:

(i)  Whether the Secretary is an employer in terms of section 2(g) of the Act?; and

(ii)  Whether the complaint of sexual harassment against the Secretary could have been made only to the Local Committee and not to the Internal Complaints Committee in terms of Section 6(1) of the Act?; and

(iii)  Whether the Internal Complaints Committee was validly constituted in terms of Section 4 of the Act?; and

(iv)  Whether the aggrieved woman made any complaint to the Internal Complaints Committee in terms of Section 9 of the Act?’ and

(v)  If the answer to question (iv) is in the negative, then whether the report of the Internal Complaints Committee dismissing the complaint is sustainable?

(vi)  Whether the non confirmation/extension of probation of the aggrieved woman during pendency of the proceedings is sustainable?

(vii)  Whether the Petition by the aggrieved woman is not maintainable as she has not exhausted the alternative remedy of an appeal against the finding of the Internal Complaints Committee?

Background

In the present matter, it was stated that the aggrieved woman faced severe sexual harassment from March 2014 onwards at the hands of the Secretary.

Further, it was alleged that he regularly made racist and sexist comments on women hailing from the North-East, particularly from the home state of the aggrieved woman.

As a counterblast to aggrieved woman’s objections, with regard to inappropriate sexual advances by the Secretary, he in the presence of other officers screamed at her and kept accusing her of poor performance or not working properly.

Adding to the above allegations, the aggrieved woman also stated that he tried to hold her hand, saying that she should have understood his ‘hints’ and should have provided him ‘bodily satisfaction’ if she did not want her probation to get extended.

Further, she was also served with frivolous office memoranda which were sent to tarnish her employment record.

In 2019, she submitted a complaint to the police station detailing out the acts of sexual harassment and assault perpetrated by the Secretary, later an FIR was registered.

Aggrieved woman protested and informed the ICC that it did not have the jurisdiction to look into her complaint against the Secretary and only the Local Committee was vested with the jurisdiction to initiate proceedings based on her complaint, as the Secretary was the employer in terms of Section 2(g) of the Act.

Further, the ICC stated that if the aggrieved woman will not appear, the Committee shall have no option but to terminate the proceedings.

Local Committee granted aggrieved woman relief of 3 months paid leave in terms of Section 12(1) of the Act.

In February 2020, the aggrieved woman was discharged from her duties due to unsatisfactory performance.

Analysis, Law and Decision

High Court expressed that since the Secretary was the employer for the purposes of the Act, the complaint of the said employer would not lie to the Internal Committee but shall lied only to the Local Committee.

Therefore, ICC does not have any jurisdiction to entertain a complaint against the Secretary.

In the present matter, the aggrieved woman had emailed to the Executive Board requesting them to set up an independent committee to enquire into her complaint of sexual harassment and assault in the same email she had alleged that the ICC lacked jurisdiction to enquire into her complaint as her complaint was against the Secretary who was the ‘employer’ within the meaning of Section 2(g) of the Act.

Since no complaint was made by the aggrieved woman to the Internal Committee in terms of Section 9 of the Act, the Internal Committee could not have conducted any inquiry or submitted a report.

Court while reasoning out further stated that,

  • No rule or provision pointed out on behalf of the Akademi to justify the procedure of constituting a Review Committee to review the performance
  • Office memoranda and calling explanations relied upon were issued either by the Secretary or by the officers junior to the Secretary, who also report to him
  • If there was any merit in the allegations of the aggrieved woman then the office memoranda and calling explanations were all issued because she rebuffed his advances
  • Timing of the termination order was such that it prima facie smacks of malafides. Especially, when a complaint of sexual harassment was pending against the Chief Executive Officer of the Akademi, the Executive Board should have waited for the decision on the complaint of the aggrieved woman.

Note:

Section 19 of the Act stipulates the duties of the employer to inter alia provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace; display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under Section 4(1); provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force; cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place; and treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.

 Conclusion

Petition was disposed of in the following terms:

(i)  The Secretary is held to be an employer in terms of Section 2(g) of the Act.

(ii)  The complaint of sexual harassment against the Secretary would lie only to the Local Committee and the Internal Complaints Committee would not have any jurisdiction to entertain any complaint against the Secretary.

(iii)  The Inquiry report dated 14.01.2020 of the Internal Complaints Committee and its opinion and recommendations are held to be without jurisdiction and non est.

(iv) Office Memorandum dated 14.02.2020 terminating the services of the aggrieved woman quashed.

(v) The aggrieved woman would be deemed to continue in service but as a probationer in terms of her appointment letter till the conclusion of the inquiry by the Local Committee. She is reinstated to her former position, with continuity of service, full back wages, and other consequential service benefits.

(vi) The Akademi shall forthwith pay her salary for the current month and clear the arrears of her salary within four weeks.

(vii) The aggrieved woman shall be deemed to be on paid leave till the Local Committee passes appropriate interim orders with regard to provision of a safe working environment to her.

(viii) The competent authority of the Akademi would be at liberty to review her performance and take a decision on her employment status after submission and implementation of the report by the Local Committee.

(ix) Since it has been held that the Secretary is the employer in terms of Section 2(g) of the Act and that a complaint against him would not lie to the Internal Committee, the question as to whether the Internal Committee was validly constituted and details thereof displayed in terms of Section 19 of the Act, is left open.

(x) The claim of the aggrieved woman for compensation for alleged mental trauma, pain, suffering and emotional distress caused to her is left open for determination by the Local Committee in terms of Section 15 of the Act.

Therefore, petition was allowed in the above terms.[X v. Y, WP(C) 1103 of 2020, decided on 25-10-201]


Advocates before the Court:

For the Petitioners:

Mr. Ritin Rai, Senior Advocate with Ms. Shreya Munoth, Ms. Kritika Bhardwaj, Mr. Ashwin Pantula, Ms. Aditi Rao and Ms. Suhavi Arya, Advocates.

For the Respondents:

Ms. Geeta Luthra, Senior Advocate with Mr. Abhishek Aggarwal, Ms. Damini Thaker and Ms. Kamkashi Gupta, Advocates for Respondent No. 1

Mr. Anupam Srivastava, ASC, GNCTD with Mr. Dhairya Gupta, Advocate for R-2 and 3/GNCTD.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Devan Ramachandran, J., directed the State of Kerala along with the Commissioner of Police to take steps for effective implementation of victim protection schemes particularly with regard to victims of sexual harassment.

The instant writ petition was filed praying to direct the Station House Officer (SHO) and his police men not to harass the petitioner and further to direct the Commissioner of Police to give adequate police protection to the petitioner, during the pendency of the Writ Petition. The petitioner alleged that the police officials were acting in collaboration with the accused in the case of sexual attack against her; and that she had been forced to go into hiding and reside with a close relative of hers.

While dealing with a case relating to a minor rape victim; in which, there was an allegation that the accused and others were intimidating and threatening her, so as to force her not to file an appeal against them, the Bench expressed that,

“…unfortunately, allegations are far more grievous because, the petitioner, who is stated to be a rape victim, alleges that she is being harassed, not only by the accused, but by certain Police Officers.”

Noticing that there are specific guidelines, circulars and orders issued by the various Authorities competent with respect to protection of victims of sexual attacks, including rape; these are not being effectively implemented, the Bench expressed the need of giving a close look to the stipulations for protection of women, who had faced the agony of sexual harassment and attack.

“Though this Court does not know the truth of the allegations yet, they certainly are ones which will have to engage the attention of the highest Officer in charge of the Police Department in the District.”

Since the State of Kerala was on the party array, the Bench opined that the issue must be answered by them as to how the mandate of protection of sexual attack victims should be effectively implemented because the issue at hand cuts at the root of the societal response to such grievous attacks and offences.

Hence, the Bench directed the government to government to obtain specific response the competent Authorities, including the State Police Chief, particularly as to how the Victim Protection Protocols will be efficiently and imperatively implemented.

The Commissioner of Police was directed to ensure that the life of the petitioner, as also her minor child, is effectively and adequately protected, but without involving the involved police officials and by employing personnel from another Police Station under his command. The Bench added, such protection shall be offered to the petitioner discreetly, preferably by nominating women Police Officers not in uniform, who shall deal with the petitioner with the empathy that she deserves.[XXX v. State of Kerala, WP(C) NO. 22276 OF 2021, decided on 13-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsels for the Petitioner: M/S.C.Dheeraj Rajan and Anand Kalyanakrishnan

Counsels for the State of Kerala: E.C.Bineesh, Government Pleader

Case BriefsHigh Courts

Bombay High Court: Sexual violence knows no boundaries, it occurs in every country, across all parts of society, Bharati Dangre, J., while noting a case of sexual harassment caused to a child aged 17 years due to which she took the step of ending her life, rejected the bail of the accused.

Background

A young girl aged 17 years jumped from the balcony of a flat and succumbed to injuries.

After a span of 96 days of the said incident, mother of the girl lodged a complaint against the applicant attributing to him that he had abetted a commission of suicide by her daughter on a fateful day.

Mother of the deceased got to know through the friend of her daughter that she had been receiving dirty messages from the applicant. On enquiring the same, daughter also showed her mobile phone which had the messages and a folder in the gallery, right after that the deceased barged out of the room. On inspecting, the screenshots were found in the mobile phone and immediately, by keeping mobile on the bed, informant followed her daughter, who by that time, jumped from the gallery of other bedroom.

On realizing the severity of the shocking incident, the informant became unconscious and she was informed that her daughter was taken to the hospital. The informant recollect that in the hospital, her daughter was little conscious and on being inquired as to why did she take the extreme step, she murmured that because of “Gaurav uncle”. She did not utter anything further and was administered treatment in the hospital.

A Chit which was found on the dressing table of the daughter was also given to police and then the CR was registered invoking Sections 306, 354A, 354-B of Penal Code, 1860 and Section 4 and 8 of the POCSO Act.

Following was written on the chit:

“Mummy, I have not told you about one person, Gaurav Uncle in our house. For no reason, he often come close to me and attempted to touch my private parts. I concealed the same from you, but that was my mistake. I kept mum because I thought if I disclose it to you, it would result into quibble. However, he messaged me. Before one week, he was talking to me about bad things. The screen shots of the said message are stored in my mobile in the folder ‘SS’. On receipt of the message, I have blocked him, but yesterday night, he texted me. I was unable to understand what should I do and how should I disclose it. After you come to know about this, please do not quarrel and let the things continue to remain as they are. You and Papa should not fight. Bye…. Take care ….. Because even if I blocked him on the mobile, I will have to face him some day. I carry no feelings for him in my mind, still he said so and further Kaki narrating it to aunt and no matter how much I tolerate, I will be blamed”

Analysis, Law and Decision 

Bench noted that the deceased was a young girl who was hesitant to disclose the ill-intentions of the applicant, who was her own uncle.

The present matter revolved around an intimate relationship of the deceased with her own uncle, which posed a barrier for the victim girl to report the said incident to anyone in the family, but she chose to disclose it to her close friend.

The chit which was scribed by the deceased referred to a message and screenshots of which were found in the mobile phone. From the screenshots, it was evident that, a message was forwarded by the applicant which was responded by the deceased by typing that she was not interested in talking to him. The unhappy tone was set and in the note which was scribed, the deceased had opened her mind to her mother where she spoke about his ill-deeds and also offered an explanation as to why she concealed it from her mother.

Court noted that the deceased had expressed her helplessness since she was apprehensive that even if she had blocked him, she would have to face him again and take the blame though, she no feeling in her mind.

“…screen shots from the mobile make it apparent that the applicant was harassing the deceased and inspite of her strong protest, was seeking something from her, leaving her in a despondent state.”

“The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who was abetted.”

“…abetment as contemplated under Section 107 of the IPC, may be by instigation, conspiracy or intentional aid and the words uttered in feet of anger or omission without any intention being attributed cannot be termed as instigation.”

High Court stated that the young girl felt cornered by the conduct and demeanor of her own uncle, which was unexpected since she held him on a high pedestal as her own father and was unable to vent her anguish on account of the close proximity of the family with that of the applicant.

Deceased suffered the consequences mutely for a year.

 While concluding the matter, Court made certain significant observations that, a child may be subjected to sexual abuse or exploitation at home too.

Unfortunately, we have not been able to create an atmosphere in the Society where parents, teachers and adults in company of the child can identify signs of abuse and make sure children received care and protection.

 In the present matter, the fear of stigma, not being believed and being blamed, found the deceased in a precarious situation and left her isolated and insecure and which persuaded her to end her life.

In view of the above stated discussion, the accused does not deserve liberty and another reason would be his close proximity with the family of the deceased and there would be every likelihood that on release he may pressurize them.[Gaurav v. State of Maharashtra, Criminal Bail Application No. 2687 of 2021, decided on 1-09-2021]


Advocates before the Court:

Mr Aabad Ponda, Senior Counsel with Advocate Sanket S. Kulkarni for the applicant.

Mr S.H. Yadav, APP for the State. Mr Kavyal P. Shah for respondent 2.

Case BriefsHigh Courts

Karnataka High Court: M Nagprasanna, J., allowed the petition and quashed the impugned second show cause notice holding The University is at liberty to initiate proceedings against the petitioner under the Service Rules by following the procedures stipulated therein.

The petitioner presently working in the cadre of Professor at the Department of Economics in the University in this writ petition calls in question second show-cause notice dated 5-11-2020 seeking the petitioner to show cause as to why penalty of dismissal from service should not be imposed upon him based upon the report of Internal Complaints Committee as a complaint was lodged by a project student before the Karnataka State Commission for Women alleging sexual harassment by the petitioner while he was functioning as Chairman of Department of Economics

Counsel for the petitioners submitted that the impugned second show cause notice decides to dismiss the petitioner from service and a separate order places him under suspension. The proposal to dismiss the petitioner from service is on the basis of a report of the Committee, without holding any inquiry as required under the Service Rules, as the penalty of dismissal can be imposed only after following the procedure.

POSITION IN LAW: Pre- Legislation

The SC in judgment Vishaka v. State of Rajasthan, (1997) 6 SCC 241 stipulated certain guidelines that were required to be strictly observed in all work places and these directions would be binding until suitable legislation is enacted to occupy the field.

Further in Medha Kotwal Lele v. Union of India (2013) 1 SCC 297 it was observed that the directions given in Vishaka v. State of Rajasthan, (1997) 6 SCC 241 should not remain symbolic and in that light further directions were given.

POSITION IN LAW: Post-Legislation

[Relevant provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013]

“…13(1) (3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be—

(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;

  1. Every employer shall –

(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.”

Observations

The Court observed that on a conjoint reading of the Sections 11, 13(3),13(4) and 19 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act along with Rule 7 and 9 of  Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 it emerges that where the Service Rules exist, the report of the Committee becomes a fact finding report or a preliminary report, with regard to the allegation of sexual harassment and the employer becomes duty bound to proceed under the Service Rules before imposing any major penalty.

The Court observed that there are no separate disciplinary Rules for these allegations, the Rules that are obtaining in the University which deal with imposition of penalty for any misconduct, are the Statutes Governing Classification, Control and Appeal Rules of Employees of Mangalore University

The Court observed that in terms of the Service Rules no penalty can be imposed against an employee except after following the procedure stipulated in terms of the Rules as aforeextracted. Dismissal from service is one of the major penalties depicted under Rule 7. Rule 11 deals with procedure for imposing penalties and begins with a non-obstante clause that no order imposing any of the major penalties specified in sub-rule 4(b) to 8 of which dismissal from service is a part, can be imposed, except after following the procedure stipulated under the aforesaid Rules. Rule 11-A deals with action on the Inquiry Report. These procedures have to be followed if an employee is to be imposed any of the penalties under the Rules. A reading of Section 9(i) of the Act in juxtaposition with the aforesaid Rules makes it unmistakably clear that the Act itself directs that the case of sexual harassment would be treated as misconduct under the Service Rules and action to be taken as such. If the Act directs it to be treated as misconduct under the Service Rules that will have to be dealt with under the Rules (supra) and procedure to be followed prior to imposition of such penalty as found in the Service Rules.

The Court relied on judgment Vijayakumaran C.P.V. v. Central University of Kerala, 2018 SCC OnLine Ker 22418 wherein it was held

  1. Upon receipt of complaints from aggrieved women (girl students of the University) about the sexual harassment at workplace (in this case, University campus), it was obligatory on the Administration to refer such complaints to the Internal Committee or the Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short “the 2013 Act”). Upon receipt of such complaint, an inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act. The procedure for conducting such inquiry has also been amplified in the 2015 Regulations. Thus understood, it necessarily follows that the inquiry is a formal inquiry required to be undertaken in terms of the 2015 Regulations. The allegations to be inquired into by such Committee being of “sexual harassment” defined in Section 2(n) read with Section 3 of the 2013 Act and being a serious matter bordering on criminality, it would certainly not be advisable to confer the benefit on such employee by merely passing a simple order of termination. Such complaints ought to be taken to its logical end by not only initiating departmental or regular inquiry as per the service rules, but also followed by the other actions as per law. In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence. We say no more.
  2. A priori, we have no hesitation in concluding that the impugned termination order dated 30-11-2017 is illegal being ex facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. On this conclusion, the appellant would stand reinstated, but whether he should be granted back wages and other benefits including placing him under suspension and proceeding against him by way of departmental or regular inquiry as per the service rules, is, in our opinion, a matter to be taken forward by the authority concerned in accordance with law.

 The Court thus held “no penalty can be imposed against the petitioner on the basis of the report of the committee in terms of the Service Rules of the University without holding any inquiry as obtaining under the Service Rules.”

[Dr Arabi U. v. Mangalore University; 2021 SCC OnLine Kar 12858; decided on 20-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Sushil Kumar Jain and Mrs. Revathy Adinath Narde

For respondent: Mr. Madhusudhan R Nair, T. P. Rajendra Kumar Sungay, Mrs. Shrividya Zirali and Shivaprasad Shantanagoudar

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J., dismissed a petition which was filed by the petitioner to resolve her grievance in consonance with the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The petitioner was posted at Indian Council of Agricultural Research Centre [ICAR] for North Eastern Hills Region, Tripura Centre and during her service she had submitted a complaint on 05-12-2018 alleging sexual harassment as contemplated under Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [Act of 2013]. After which internal complaints committee had submitted its report where the committee had exonerated the respondent 6. The petitioner then had preferred an appeal against the said recommendation by the committee under Section 18(1) of the Act of 2013. Since the said statutory appeal is still not disposed off, the petitioner had approached this court by way of invoking the jurisdiction of this court under Article 226 of the Constitution of India.

 Mr B. Majumder, Assistant S.G., counsel for the respondent had raised a preliminary objection in regard to the jurisdiction of this court to grant the reliefs as sought for by the petitioner. He had contended that the grievances of the petitioner related to “service matters” and in view of notification under Section 14(2) of the A.T. Act, the appropriate forum was the CAT being the court of first instance for the purpose of adjudication of disputes relating to “service matters”.

The main argument of the counsel of the petitioner, Mr . Somik Deb and Mr S. Bhattacharjee on the question of maintainability was that the petitioner being aggrieved of the recommendation made by the Local Complaints Committee had preferred an appeal and since the appeal was not disposed off for a considerable period of time, the petitioner approached this court for a direction upon the concerned respondents to dispose of the appeal within a certain period of time. However, it was noticed that at prayer 2 of the writ petition, the petitioner had sought for a direction upon the appellate authority to accept the additional ground on the report of the External Committee. He further contended that that subject of sexual harassment has not been included in the definition of “service matters” as contemplated under Section 3(q) of the A.T.Act, 1985.

The Court opined that Section 11 of the Act of 2013 makes it clear that where the ‘respondent’ is an employee and the Internal Committee or the Local Committee proceeds to make inquiry into the complaint, it will be an inquiry in accordance with the provisions of service rules. Thus, the intention of the legislature was to make an inquiry into the complaint in accordance with the provisions of the service rules. The proceedings undertaken by the Internal Complaints Committee of the respondent No.2 and the reports of the Committee thereof [Annexure 5 to the writ petition], on the face of it reveals that the Committee has taken into account the service rules i.e. CCS (CCA) Rules and CCS (Conduct) Rules. Section 19(i) of the Act of 2013 makes it clear that the employer is duty bound to treat sexual harassment as a ‘misconduct’ under the service rule and initiate action for such ‘misconduct’. Section 13(2) further makes it clear that where the Internal Committee or the Local Committee, as the case may be arrives at a conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer that no action is required to be taken in the matter.

The Court found that the bare perusal of the Section 14 of the CAT makes it abundantly clear that all “service matters” pertaining to service in connection with the affairs of the Union can be decided by the Tribunal.

The Court while dismissing the petition held that internal inquiry as initiated on the basis of the complaint of the petitioner falls within the ambit of the definitions of “service matters”. Thus, in the conscious consideration of this court, the Tribunal will have jurisdiction to decide the said aspect. The Court quoted the Constitutional Bench of the Supreme Court in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 where it was held that Tribunal is the court of first instance and it will not be open for the litigant to approach the High Court as a court of first instance (Para 93).

The court explained that the grievance of the petitioner falls within the ambit of “disciplinary matters” which is inclusive of the definition of “service matters” as contemplated under Section 3(q) of the A.T.Act,1985.

[Rekha Das v. Union of India, 2021 SCC OnLine Tri 274, decided on 17-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., while addressing the concern with respect to a very shocking incident wherein a Lady IPS officer was harassed by the Special DGP, expressed that:

“…effectiveness of a criminal prosecution can be ensured only when it is completed at the earliest possible time and there is a certainty of punishment for the accused person, if found guilty.”

The present writ petition was filed for the issuance of a writ of mandamus directing CB-CID to effectively conduct the investigation, duly monitored by the Court and for a further direction to submit the periodical status report.

It has been stated that the State Government has taken up the issue very seriously and that the investigation is proceeding on the right lines and that no stone will be left unturned. Summons to Accused 1 and 2 have been issued under Section 41-A of the Code of Criminal Procedure, 1973.

Enquiry in the Internal Complaints Committee has also commenced parallelly and the developments were also reported before the Court.

Another development that was brought before the Court was that the Superintendent of Police, Chengalpet had already been suspended, pending the departmental inquiry.

High Court when passed the Orders on 01-03-2021, it had restrained the political parties and media from indulging in any discussion, touching upon the merits of the case, along with using or exchanging the names of the victim officer, the accused persons and the witnesses.

In view of the above restraint a representation was made before this Court to the effect that such protection need not be given to the accused persons and therefore, a request was made to modify the earlier direction and permit the use or exchange of name of the accused persons.

Bench while acknowledging the restraint shown by the political parties expressed that the present issue is not just confined to two individuals infact there is a larger issue that requires an effective solution and the interest of the entire police force in Tamil Nadu.

Reasoning for the restrain was that the Court did not want a parallel ‘Media Trial’, since the issue is quite sensitive and required to be handled with maturity.

State, as well as this Court, must maintain neutrality.

 Further, the High Court expressed that it is satisfied with the manner in which the investigation has progressed in this case and the Court hopes that it continues in the same spirit and the same gets completed as expeditiously as possible.

In view of the above discussion, Court held that the restraint imposed by the High Court shall continue. [Government of India, In Re.,  2021 SCC OnLine Mad 1118, decided on 12-03-2021]


Advocates who appeared before this Court:

For Respondents: Mr. N. Ramesh Central Government Senior Counsel for R 1

Mr. Jayaprakash Narayanan, State Government Pleader for R 2 & R 3

Mr. M. Mohamed Muzammil, Government Advocate (Crl. Side) for R 4 & R 5


Madras HC | Lady IPS Officer harassed by Special DGP. “Court is not going to be a mute spectator”: HC takes suo motu cognizance; decides to monitor investigation; issues directions