Case BriefsDistrict Court

Rouse Avenue Court, New Delhi: Ravindra Kumar Pandey, ACMM, in an essentially significant decision revolving around the  #MeToo movement, acquitted Priya Ramani (accused) and held that no case under Section 500 of the Penal Code, 1860 was found against her.

“Most of the women who suffer abuse do not speak up about it or against it for simple reason “The Shame” or the social stigma attached.”

 “The woman has a right to put her grievance at any platform of her choice and even after decades.”

What led to the filing of the present complaint under Section 500 IPC?

Complainant MJ Akbar, who was a politician moved the present complaint alleging accused Priya Ramani, a Journalist for defaming and damaging the complainant’s reputation by way of tweets, articles, etc. While presenting the set of allegations, complainant stated that the accused had made false, derogatory and malicious imputations against him such as:

I began this piece with my MJ Akbar story. Never named him because he didn’t ‘do’ anything. Lots of women have worse stories about this predator­ maybe they’ll share’, ‘ the media’s biggest sexual predator’. ‘ How many more stories do you need to hear?’, ‘Am glad # MJ Akbar won’t be in the workplace any more but Akbar represent countless men who believe they can say and do whatever they want to women without any consequences’. ‘You’re an expert on obscene phone calls, texts, inappropriate compliments and not taking no for an answer’.

Another allegation that the complainant puts forward is the accused herself, while putting forward the above mentioned quoted defamatory statements, relating to an incident occurred 20 years ago, admits that the complainant did not do anything to her.

Allegations of the Accused as: Figment of her imagination

Complainant goes on to submit that accused’s conduct on taking any action before any authority, with respect to the alleged incident clearly belies the sanctity of the articles and allegation made against the complainant with the intention to malign his reputation.

It was further alleged by the complainant that accused Priya Ramani had resorted to a series of maliciously fabricated allegations, which was diabolically and viciously spread by her by using media.

All of the above caused great humiliation and damaged the complainant’s goodwill and reputation in his social circles and on the political stage.

On the basis of pre-summoning evidence led by the complainant, accused Priya Ramani was summoned by this Court for commission of offence punishable under Section 500 IPC.

Priya Ramani’s Defence

Accused took the defence that she made the publication of the articles and tweets in good faith for protection for other women’s interest in general regarding sexual harassment at the workplace. Accused contended that her publication covered under the exception 1,3 and 9 of Section 499 IPC.

Further, it was added that the complainant was not a man of stellar and impeccable reputation and the accused did not defame him by publishing the tweets and article.

Analysis and Decision

It cannot be ignored that most of the time, the offence of sexual ­harassment and sexual abuse is committed in the close doors or privately. Sometimes the victims herself does not understand what is happening to them or what is happening to them is wrong. Despite how well respected some persons are in society, they in their personal lives, could show extreme cruelty to the females.

While analysing the facts and circumstances of the case, Bench considered the systematic abuse at the workplace due to the lack of mechanism to redress the grievance of sexual harassment at the time of the incident of sexual harassment against the accused Priya Ramani and witness Ghazala Wahab prior to the enactment of The Sexual­ Harassment of women at workplace ( Prevention, Prohibition and Redressal) Act, 2013, or their option to not lodge the complaint of sexual ­harassment due to the social stigma attached with the sexual ­harassment of women.

Unaware of what is happening

Bench while addressing the issue of sexual abuse expressed that victims of sexual abuse not even speak a word about abuse for many years because sometimes she herself has no idea that she is a victim of abuse.

“…victim may keep believing that she is at fault and victim may live with that shame for years or for decades.”

Defamation complaint against sexual abuse victims

Court stated that woman cannot be punished for raising voice against the sexual­ abuse on the pretext of criminal complaint of defamation as the right of reputation cannot be protected at the cost of the right of life and dignity of woman as guaranteed in Constitution of India under Article 21 and right of equality before the law and equal protection of the law as guaranteed under Article 14 of the Constitution.

While concluding with its decision, Bench asserted that the ‘glass ceiling’ will not prevent the Indian Women as a road lock for their advancement in society, if equal opportunity and social protection be given to them.

Therefore, while acquitting Priya Ramani of the offence under Section 500 IPC, Court directed her to furnish bail bonds and surety bonds in terms of Section 437-A CrPC. [Mobashar Jawed Akbar v. Priya Ramani, Complaint Case no. 05 of 2019, decided on 17-02-2021]

Hot Off The PressNews

On 15.02.2021, the Supreme Court has issued a notice banning Ashok Saini, the clerk of an advocate, from entering the precincts of the Supreme Court of India for a period of three months from 1st July, 2021 till 30th September, 2021 pursuant to being found guilty of sexual harassment against him.

The notice reads:

“It is for the information of all concerned that pursuant to a complaint, against Mr. Ashok Saini, the clerk of an advocate, of sexual harassment within the precincts of the Supreme Court of India, before its Gender Sensitization and Internal Complaints Committee (GSICC) and consequential inquiry, under Regulation 11(1)06) and (c) and 11(2)Ma) of the Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2013, Mr. Ashok Saini has been found guilty and debarred from entering the precincts of the Supreme Court of India for a period of three months from 1st July, 2021 till 30th September, 2021.”

Case BriefsHigh Courts

“[Sexual harassment] can be perpetrated by the members of any gender, even inter se.”

Calcutta High Court: Sabyasachi Bhattacharyya, J. held that a complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“POSH Act”], is maintainable even against “a person” belonging to the same gender as that of the complainant. In other words, a complaint under the POSH Act is maintainable against women.

Issue

In the present petition, the petitioner contended that the respondent authorities acted without jurisdiction in entertaining a complaint on alleged sexual harassment against her, despite the fact that both, the petitioner and the complainant, are of the same gender.

Arguments

Petitioner

The petitioner stressed that the allegations of the complainant revolved around alleged vilifying and defaming in public. It was submitted that the act as alleged, could not fall within the purview of “sexual harassment” as contemplated in the POSH Act. She placed particular reliance on the definition of “sexual harassment” in Section 2(n) of the POSH Act and sought to impress upon the Court that the acts contemplated therein have no nexus with the present complaint.

It was next submitted that, as per Section 19(h) of the POSH Act, an employer shall cause to initiate action under IPC or any other law for the time being in force, against the perpetrator. It was argued that such an action, as envisaged under IPC, only pertains to a man being involved in the offence, which ingredient has to be factored in while appreciating the connotation of “sexual harassment” under the POSH Act.

It was submitted that since the Vishakha judgment [Vishakha  v. State of Rajasthan, (1997) 6 SCC 241] was the genesis of the POSH Act, the concept of the POSH Act has to be read and interpreted in the light of the said judgment. It was argued that the question of gender equality acquires primacy in deciding whether a complaint falls within the periphery of the POSH Act. In the present case, since the gender of the complainant and the respondent (petitioner herein) is the same, the question of the POSH Act being invoked does not arise.

Complainant

The complainant made reference to the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 and submitted that the said Regulations are broad enough to encompass respondents of all genders, implicitly meaning that the gender of the complainant and the respondents can very well be the same in order to attract the rigours of the Regulations, which govern the present parties as well. By placing particular reliance on Regulation 8(2), it was argued that the expression “the respondents shall file his/her reply” has been used therein, thereby bringing within its purview respondents of both genders. This, read with the definition of “respondent” in Section 2(m) of the POSH Act, which contemplates “a person” as a respondent, indicates clearly that same gender allegations can also be entertained under the POSH Act.

Analysis

The High Court, stated at the outset, that a cursory glance at Section 2(m) of the POSH Act shows that the term “respondent” brings within its fold “a person”, thereby including persons of all genders.

The Court was of the opinion that although there was substance in the submission of the petitioner that the said expression has to be read in conjunction with the rest of the statue as a whole, there is nothing in Section 9 of the POSH Act [which has been referred to in Section 2(m)] to preclude a same-gender complaint under the POSH Act.

“Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized.”

It was also held that the definition of “sexual harassment” in Section 2(n) cannot be a static concept but has to be interpreted against the backdrop of the social perspective. Sexual harassment, as contemplated in the POSH Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the POSH Act.

“A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act.”

The Court further held that if sub-section (2) of Section 3 [Prevention of Sexual Harassment] is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se.

Decision

In such view of the matter, the High Court held that the act alleged by the complainant to have been perpetrated by the petitioner, as evident from her complaint was maintainable under the POSH Act. Hence, the complaint cannot be turned down at the outset.

It was however clarified that the merits of the allegations levelled by complainant against the petitioner have not been gone into in any manner by the court. And it will be open to the appropriate authorities to decide the matter independently, on its own merits. [Malabika Bhattacharjee v. Vivekananda College, WPA 9141 of 2020, dated 27-11-2020]

Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J., observed that:

Complaints of sexual harassment are initially filed with enormous reluctance. The power of the ICC to hold the enquiry and give a report ought to be within the scheme and the four corners of the statute itself.

In the instant petition, recommendations of the Internal Complaints Committee have been challenged as given in the report as well as further action taken by the Punjab National Bank on the basis of ICC’s report.

A complaint was filed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 against respondent 3 who was working as the General Manager of respondent 1 Bank, in Mumbai.

The above-stated complaint was referred to the ICC, which was constituted by the Bank, consisting of four members.

What was the analysis of ICC?

ICC came to the conclusion that the relationship between the petitioner and respondent 3 was based on personal grounds with mutual consent, and that the allegations of sexual, emotional and mental harassment were not substantiated by the petitioner.

Hence, the complaint against respondent 3 was rejected.

ICC made additional observations that the behaviour of the parties had been inappropriate and unbecoming of officers/employees of the Bank and accordingly recommended the Competent Authority to take suitable action against the petitioner and the respondent 3.

Based on the above report, a charge sheet was issued against the petitioner under Regulation 6 of the Punjab National bank Officer Employees’ (Discipline & Appeal) Regulations, 1977, hence in view of the same, petitioner has filed the instant petition.

Single Judge in his order had stayed the ICC’s recommendation and the consequent charge-sheet.

Later during the pendency of the petition, the petitioner became eligible to be considered for promotion. Petitioner stated that her promotion was being held up in view of the pendency of the present petition.

Thereafter, the Bank was directed to independently consider the petitioner’s candidature for promotion, however, it was directed that the same shall not be given effect to and kept in a sealed cover. Due to the lockdown, the matter could not be heard.

Analysis and Decision

Bench on perusal of the facts and circumstances of the matter raised the question as to whether the ICC could have, in the first place, made a recommendation directing the competent authority to take action?

ICC in its report had concluded that the allegations were not substantiated and the complaint was not made out. and further added remarks in regard to the conduct of the petitioner and respondent.

High Court made an observation in light of Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, that is the allegations of sexual harassment or any other form of harassment, as contemplated under the Act, are not proved before the ICC, the ICC can only recommend the employer to not take any action in the particular matter.

In the instant case, ICC has gone beyond its statutory mandate and has made observations that both the parties indulged in inappropriate/unbecoming conduct and indiscipline action against them.

Bench held that the above-stated recommendation by the ICC was beyond jurisdiction.

Moral Policing

‘Moral Policing’ is not the job of the Management or of the ICC.

With regard to Moral Policing, Court expressed that, any consensual relationship among adults would not be the concern of the Management or of the ICC, so long as the said relationship does not affect the working and the discipline of the organisation and is not contrary to the Rules or code of conduct binding on the said employees. It is only if a complaint is made of sexual harassment under the Act that the Management can constitute the ICC to enquire into the same.

Bench in view of the above discussion found the last paragraph of ICC’s report in the instant case to be commenting on the conduct of the parties which is against the statute and hence the same was not tenable and liable to be set aside.

In view of the above position, the fact that the Petitioner has become eligible for promotion means that the Bank would accordingly offer her promotion in accordance with her seniority, performance and merit, as per the applicable service rules. [Bibha Pandey  v. Punjab National Bank,  2020 SCC OnLine Del 1639, decided on 16-12-2020]

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

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

The above incidents caused great anguish to the appellant.

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

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

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

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

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

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

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

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

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

With regard to Gender Conditioning, Court noted that

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

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

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

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

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

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

Gender Sensitization

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

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

Importance of Internal Complaints Committee

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

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

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

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

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

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

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


Advocates who appeared before the Court:

Advocate for the Appellant: Kamna Vohra

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

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.M. Shaffique and Gopinath P., JJ., while observing a matter in regard to sexual harassment at workplace stated that,

In order to take action under the 2013 Act, the acts complained of should come within the purview of Section 2(n) and Section 3 of the Act or any other form of sexual treatment or sexual behaviour.

The substantial issue that was raised in the petitions was:

Whether a complaint given by respondent 8 can be the basis of an enquiry under the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Petitioner submitted that the allegations in the above-stated complaint did not disclose any form of sexual harassment coming within the purview of the 2013 Act.

Analysis and Decision

Bench observed that there is no dispute to the fact that sexual harassment of women at workplace results in a violation of fundamental rights of equality, enshrined under Articles 14 and 15 of the Constitution of India and her right to live with dignity under Article 21 of the Constitution.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was formulated to ensure a safe environment free from sexual harassment for women.

Further, the Court noted that apparently it is an inclusive definition and only a few unwelcoming acts or behaviour had been mentioned at sub-clauses (i) to (v).

Sub-clauses (i) to (v) are only instances of unwelcome acts or behaviour, but while interpreting a statute, we will have to derive the meaning of the word “sexual harassment” taking into account sub-clauses (i) to (v) as well.

In view of the above, Court stated that there might be other unwelcome acts or behaviour which would amount to a sexual advance or demand which the woman feels to be annoyed on account of the fact that she is a woman.

Further, in regard to Section 3, it is stated that the said Section creates prohibition to subject a woman to sexual harassment at the workplace.

Section 3(2) emphasises on any act or behaviour of sexual harassment.

A bare reading of sub-section (2) indicates that the circumstances mentioned in clauses (i) to (v) are not exhaustive. The words ‘among other circumstances’ clarifies the said position. Any such circumstances, if it occurs, or is present in relation to or connected with any act or behaviour of sexual harassment alone can be treated as sexual harassment.

A purport of Section 3(2) is that, if any of the eventualities mentioned under clauses (i) to (v) or any other circumstances occur, it should be in relation to or connected with any act or behaviour of sexual harassment.

Hence, in order to constitute sexual harassment, there should be an attempt on the part of the wrongdoer to do some act which was unwelcome or by way of behaviour, either directly or by implication makes the victim feel that it amounts to sexual harassment.

Supreme Court’s decision in Visakha v. State of Rajasthan, (1997) 6 SCC 241, came into light at a when there was no statutory provision to provide for the effective enforcement of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces.

In the above decision of the Supreme Court, strict guidelines to be followed at workplaces were formulated for the preservation and enforcement of the right to gender equality of working women.

After the above-stated decision, the 2013 Act came into force, which provided for taking disciplinary action against such persons involved in sexual harassment of women at any workplace and also the penal consequences thereof.

A reading of the above-stated statute clearly envisages a complaint involving sexual harassment.

Court also stated that the 2013 Act does not contemplate a situation of discrimination on the basis of sex whereas it specifically deals with sexual harassment in the workplace.

Considering the above discussion, Court held that.

The very concept of sexual harassment in a workplace against a woman should start from an express or implied sexual advance, sexual undertone or unwelcome behaviour which has a sexual tone behind it without which provisions of Act 2013 will not apply.

[Dr Prasad Pannian v. Central University of Kerala,  2020 SCC OnLine Ker 6550, decided on 02-12-2020]


Advocates who appeared for the matter:

Surya Binoy, Advocate — Petitioner

Sri V. Sajith Kumar, SC, Central University of Kerala.

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J.has framed an eminent question for determination which will have an impact on the dispensation of justice to complainants under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”).

The High Court will determine whether the broad interpretation of the “workplace” under Section 2(o)(vi) of the POSH Act would bring within its ambit attending a private marriage function in a private hotel.

The applicant sought direction upon the respondents not to take any step on the basis of the show-cause notice dated 10-06-2019 and the order of termination pursuant to the report of the respondent 4. 

Petitioner sought to allow him to join the post of a professor of the Department of Mass Communication, appoint him as the Head of the Department and pay his regular salary including his arrears.

Kalol Basu, Counsel represented the applicant and Karma Thinlay Namgyal, Senior Advocate assisted by K.T. Gyatso, on behalf of the respondents.

Applicant’s counsel urged that the entire enquiry conducted by respondent 4 was without jurisdiction as the alleged incident of sexual harassment purportedly had taken place at a hotel during a marriage function and the same does not fall within the definition of “workplace” as per the existing law.

Decision

Bench stated that admittedly the alleged incident took place at a marriage function in a private hotel.

Section 2(o) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defines the workplace.

In view of the said definition of “workplace”, it seems that the petitioner does have a strong arguable point on the jurisdiction or the lack of it.

Whether the broad interpretation of “workplace” would bring within its ambit attending a private marriage function in a private hotel, is a question which may have to be examined.

In the stated circumstances, High Court is of the considered view that during the pendency of the writ petition before this court, the respondents 1 to 3 should not give any further effect to the termination order dated 28-06-2019.

The application was disposed of in the above view. [Silajit Guha v. Sikkim University, 2020 SCC OnLine Sikk 99, decided on 20-08-2020]

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., while addressing a bail application made the following observation:

There cannot be a straight jacket formula as to how a woman will react to an act of outrage by a male, since all women are borne into different circumstances in life, go through different things and faces, experience and react differently and necessarily each woman would turn out to be different from the other.

Applicant sought release on bail for being charged with offences under Sections 376, 354-A and 354-B of Penal Code, 1860.

Advocates who appeared in the present matter:

Dr Abhinav Chandrachud with Ms Khushboo Pathak and Mr Wasi Sayyed i/b Mr Prem Pandey for the Applicant.

Mr Ajay Patil, A.P.P. for the State.

Mr Satyam Nimbalkar for the intervener.

Forceful Sexual Intercourse

Complainant was acquainted with the present applicant aged 24 years since past 8 years. Complainant along with her friends went for an overnight Diwali party and somewhere past midnight she went to a bedroom to take rest and went off to sleep. Around 4,30 she was awakened with a feeling and found that someone was forcing himself upon her.

Complainant found that it Applicant who was forcing himself upon her and trying to have sexual intercourse with her by penetrating his penis into her vagina. At this juncture, the Complainant used all possible force to push him away and she was successful in thwarting the sexual overtures by the applicant.

Later, complainant went to find her friends which she couldn’t hence she returned back to the same room where, on not finding the applicant she went off to sleep, but yet again the applicant tried to repeat the same act to which complainant scolded him and left the room.

Distressed Mental Condition

Due to above stated incident, complainant went through mental trauma and was frightened. She narrated the whole episode to her mother and went to a psychiatrist, further she discussed the whole matter with her family and approached the Kondwa Police Station.

Offences were registered under Sections 376, 354 and 354-A of the Penal code, 1860.

Decision

In complainant’s statement, she stated that on applicant trying to establish physical contact with her she raised an alarm to which none of her friends responded, Court was astonished to the said statement.

Another point which seemed incomprehensible was the fact that she did not report the incident to anyone on the same day though she was amidst of the friends and went for an outing. The photographs placed on record would lead to an impression of her being cheerful in the company of the accused and one other friend.

Considering the material placed on record, Court was of the prima facie view that it does not constitute a reasonable ground for believing that the applicant is guilty of the offence charged.

The statements of two witnesses to the effect that the Applicant and the victim were found sleeping in the same room on the same bed will have to be put to test in a trial and this evidence will have to be appreciated cumulatively.

Further the Bench added that,

“…concept of consent of the victim or as to at what stage the consent was revoked and the act of physical indulgence was attempted to be restrained is a matter of trial.”

Court also quoted Warren Buffet,

“If a lady says No, she means may be” or in the expression of Rich Santos for Marie Claire – “Most of us guys have been there; the night ends, we invite the girls come home with us. When a girl says no, we launch into our second and third attempts. Sadly, these attempts are filled with incentives such as promise of guitar playing, of ‘fabulas chicken tenders at the dinner by my place’ or even promises: ‘I will definitely call on the next day’ etc; I have taken girls home after long discussions, changing Nos to Yeses”

above are the old hat tricks and the issue as to whether the girl really consented freely for a physical indulgence with her is to be searched by applying the new standards of modern life and the present social scenario.

On granting bail to the applicant, Court stated that,

Balancing deprivation of his liberty against the possibility of the trial being commencing and concluding in the immediate times is far beyond reality, particularly in the light of the huge galloping pendency which the judicial system would be staring at, at the end of the Covid pandemic. Incarceration of a young boy for an indefinite period would be antithesis to the concept of liberty.

Hence, applicant was granted bail with stringent conditions. [Jitin Mothukiri v. State of Maharashtra, 2020 SCC OnLine Bom 821 , decided on 21-07-2020]

Hot Off The PressNews

The National Human Rights Commission, NHRC, India has issued to notices to the Chief Secretary and DGP, Uttar Pradesh after taking sou moto cognizance of media reports that due to the alleged in action by the authorities on their complaint of sexual harassment, a mother-daughter duo from Amethi attempted self-immolation in front of the Lok Bhawan in Lucknow on 17.07.2020. Reportedly, the mother with 90% burn injuries died and the daughter with 15% burns is undergoing treatment in the civil hospital.

The Commission has given four weeks times for the response calling for a detailed report in the matter including action taken against the guilty and the action taken on the complaint reportedly lodged by the victims alleging sexual harassment by someone residing in their neighbourhood. The report must include the status of the medical treatment being provided to the injured woman, her health conditions and any relief given by the authorities to the injured and the aggrieved family.

Issuing the notices, the Commission has observed that the recourse taken by the victims cannot be justified but it indicates towards the reckless attitude of the authorities, who seemingly failed to take a timely action on the complaint lodged by the victims leveling serious allegations of sexual harassment against one of their neighbourers. This is a serious issue of violation of human rights. Had a timely action been initiated, the women may not have been forced to take such an extreme steps.

According to media reports, the family members of the victims have also alleged ill treatment by police personnel and the doctors at the Civil Hospital, when the son of the deceased woman visited her in the hospital. Reportedly, four persons including Amethi District AIMIM president and a local congress party leader have been arrested by the police. It is also reported that the police or the local intelligence unit had no information that the women were going to Lucknow.


National Human Rights Commission

Press Release dt. 24-07-2020

Case BriefsForeign Courts

Supreme Court of Sri Lanka:  A Full Bench of  Buwaneka Aluwihare PC, P. Padman Surasena and E A G R Amarasekara JJ upheld the indictment of a senior lecturer of the University of Colombo, holding that his indictment and subsequent non-reinstatement by the University’s disciplinary authority does not violate his Fundamental Rights.

The petitioner was the Head of the Department (HoD) of Mass Media and Senior Lecturer at the University at the time of his indictment. Many members of the academic staff had written complaints against him, two lady probationers working under him had accused him of sexual harassment and abuse of authority, and six other senior lecturers had made a joint complaint setting out his alleged unacceptable general conduct. After a preliminary investigation by the university, he was indicted and the disciplinary committee’s charge sheet charged him with sexual harassment, engagement in discriminatory practices and creation of a hostile work environment for the complainant-probationers.

The petitioner contended that the probationer’s complaints were fake and that his indictment and non-reinstatement violated several provisions of the University Establishments Code. He claimed that the respondents had acted illegally, unreasonably and beyond their powers in indicting him and not reinstating him after the completion of one year since his indictment.

Court dismissed all but one of the petitioner’s claims on the grounds that he did not file the instant application regarding his contentions about the falsity of the probationers’ complaints, the arbitrariness of his interdiction and the transcendence of the disciplinary proceedings beyond the valid period within the one-month period specified in Article 126(2) of the Constitution.

With respect to the claim about his reinstatement, however, the Court found the infringement of his rights to be of a continuing nature, and thus, not time-barred. It applied a provision in a Public Administration Circular dated 30-12-2011, which stated that if a disciplinary authority failed to conclude its proceedings and issue an order within one year, it would have the discretion to reinstate the accused officer and pay him his salary. Since the authority clearly enjoys this discretion, the petitioner’s non-reinstatement cannot be taken to mean a violation of his Fundamental Rights to equal protection of the law under Article 12(1) of the Constitution. In view of the fact that reinstating him, while the two probationary-lecturers, who testified against him served under him, would not be in the best interests of justice, the Court held that the “non-reinstatement of the Petitioner by his disciplinary authority cannot be viewed as a wrong exercise of the discretion by the said disciplinary authority.” Appeal was dismissed in the above-view. [W M P N Weerasinghe v. University of Colombo, 2020 SCC OnLine SL SC 2 , decided on 20-07-2020]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and R.C. Khulbe, J., dismissed a writ petition that was filed questioning that whether sole testimony of the victim of sexual abuse was sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry and whether dismissal of service imposed on the perpetrator as a consequence thereof was grossly disproportionate? The Court observed that sole testimony, of the victim of sexual abuse, was sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry, if it was found reliable.

The petitioner was nominated, for the para-medic course for a three day period as a guest instructor for an outdoor exercise with trainees, for conducting a half day theory class, a half night march exercise at the S.S.B. Academy Gwaldum, and to impart them training on military topics such as night navigation and map reading. After completion of the night training exercise, the petitioner, along with several other members including the two lady trainees, sat in the cabin of a truck which was coming back to Gwaldum station. It is in the cabin of the truck that the petitioner is said to have molested one of the lady trainees, and to have sexually harassed her.

The Counsel for the petitioner, Sanjay Raturi, contended that he was held guilty on the self-serving sole testimony of the complainant (Trainee); no other witness had corroborated the complainant’s testimony; and the complainant’s self-serving evidence cannot form the basis for holding the petitioner guilty of the charges.

The Court noted the well settled principle laid down in various Supreme Court decisions that an evidence of the victim of sexual assault is enough for conviction, and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The Bench observed that:

As the sole testimony of a prosecutrix, in a criminal case involving sexual harassment and molestation, would suffice if it is otherwise reliable, there is no justifiable reason not to accept the sole testimony of a victim, of sexual harassment and molestation, in a departmental inquiry as the enquiry held by a domestic Tribunal is not, unlike a Criminal Court, governed by the strict and technical rules of the Evidence Act. A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probabilities, and not proof beyond reasonable doubt. In the present case, the testimony of the complainant gives graphic and shocking details of acts of sexual molestation perpetrated by the petitioner on her so there isn’t any reason as to why the Enquiry Committee should be faulted for largely relying on the testimony of the complainant and there is no reason to interfere in the enquiry. [Bhuwan Chandra Pandey v. Union of India, 2020 SCC OnLine Utt 268 , decided on 15-06-2020]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J., allowed a bail application subject to stringent conditions in child sexual harassment case on the ground that no prima facie offence was made out and the accused already suffered detention for 40 days. 

The prosecution had alleged that the victim aged 13 years was given a lift on a scooter by the petitioner, and the petitioner took the victim to an isolated house and pressed his chest and then kissed his lips, etc. 

Counsel for petitioner, T.K. Vipindas, contended that the allegations are false and fabricated. He also argued that the facts in the FIS do not fulfill the ingredients of Section 377 of the Penal Code, 1860. No allegations were made that the petitioner indulged in anal penetration or any assault using the genital organ. Thus the offence under Section 377 is not made out in the present case. The petitioner further contended that even admitting the allegations, petitioner committed a non-penetrative assault under Section 7 of the Protection of Children from Sexual Offence (POCSO) Act, 2012 punishable under Section 8 of the POCSO Act. The fact that the petitioner had already suffered detention for 40 days, further detention was not justified and proper, thus considering the nature of allegation the court may release him on bail subject to any strict conditions. 

Public Prosecutor, T.R. Renjith contended that if the petitioner was released on bail there is every possibility that of the petitioner intimidating and influencing the witnesses, victim and his family members. 

The Court after considering the allegations and the fact that the petitioner had already suffered detention for 40 days, was let out on bail, on his executing bond for Rs 40,000 and furnishing two solvent sureties, subject to stringent conditions. The court imposed the following conditions – petitioner has to report to the investigation officer on 2nd and 4th Saturday for three months, he shall not visit victim’s residence or the educational institution of the minor victim, he shall not enter the territorial limits of the police station, where the victim resides. In case of a genuine emergency, the petitioner is allowed to visit the said area after taking permission from the IO. In case of violation of any of the conditions, the court may consider the bail as cancelled. [Rajeevan v. State of Kerala, 2019 SCC OnLine Ker 3993, decided on 06-11-2019]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J. allowed a revision petition filed against the judgment of the trial court whereby the petitioner was convicted for offence punishable under Section 354-A IPC (sexual harassment).

On the day of the incident, the petitioner was acting as an invigilator inside the examination hall where the complainant was writing her History subject examination paper. It was alleged that the petitioner made unwelcome physical contact with the complainant involving explicit sexual overtures against her. Further, he met the complainant nearby the bus stand and uttered certain words towards her intending to insult her modesty and intrude upon her privacy. The trial court found the allegations proved and convicted the petitioner as aforesaid. Aggrieved thereby, the petitioner approached the High Court.

At the outset, the High Court noted that an accused can be convicted on the sole testimony of the prosecutrix, but in the instant case, the Court was of the opinion that the complainant’s testimony was not such as to inspire confidence. It found many discrepancies and improvements in her statements as was evident from the record of the case.

Perusing the impugned order, it was noted, inter alia, that the trial court, as well as the Appellate Court, relied upon the suggestion given on behalf of the petitioner to the complaint that she had already obtained the phone number of the petitioner after leaving the examination hall and that is how she knew the same. The Appellate Court observed that the suggestion essentially goes to show that the petitioner himself had admitted the possession of his phone number with the complainant. However, in High Court’s opinion, the question of whether a suggestion given by the counsel on behalf of the accused can be considered as admission and bind the accused under Section 18 of Evidence Act is to be answered in negative. Referring to earlier decisions, according to the Court, the plea or defence put forward by the lawyer of the accused cannot bind him. The lawyer has no implied authority to admit the guilt or facts incriminating the accused.

In light of the inconsistencies and the improvements made by the complainant during her deposition and in absence of any corroborating evidence to support her statement, the Court was of the opinion that the testimony of the complainant does not inspire confidence. It was held that the prosecution failed to prove the case against the petitioner, the finding of guilt recorded by the trial court and the Appellate Court was manifestly illegal and perverse. Resultantly, the revision petition was allowed. The petitioner’s conviction was set aside. [Pawan Kumar v. State, 2019 SCC OnLine Del 10452, decided on 10-10-2019]

Op EdsOP. ED.

Sexual harassment is a form of sex discrimination projected through unwelcomed sexually determined behaviour.[1] It is a violation of women’s right to life, equality and liberty; creates an insecure and hostile work environment for them.[2] It permeates all strata, ranging from unorganised sector to the corporate.[3]

In India, the development of laws related to sexual harassment has a relatively recent genesis. Prior to 1997, there was no mechanism to deal with complaints made to the authorities by women with regard to sexual harassment at the workplace.[4] The judgment in Vishaka v. State of Rajasthan[5] was the first step where the Supreme Court held the impugned practice to be a violation of human rights. It was a case of the gang rape of Bhanwari Devi, an employee of the Rural Development Programme of Government of Rajasthan who attempted to stop child marriage.

Nearly 15 years after the issuance of Vishaka guidelines, Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Analysis of the Act

The said Act is applicable to the country as a whole whether in public, private, formal or informal sectors. The Act attempts to protect vulnerable workers who are not covered by the labour laws or are a part of a union such as domestic workers. The downside in the case of domestic workers being covered in this Act is that their remedy is only a police complaint of sexual harassment, under Section 509 of the Penal Code, 1860 (IPC).

The statute makes it mandatory for all employers, whether in the public or private sector to set up an Internal Complaints Committee (ICC) in order to enquire into complaints of sexual harassment at the workplace, take preventive measures to ensure that the work environment maybe be conducive to women.[6]

The Act provides that complaint of sexual harassment has to be made to ICC or the Local Complaints Committee (LCC) within a period of three months from the date of the incident and in case of a series of incidents, within a period of three months from the date of the last incident.[7] This is an unfortunate provision as the courts from the very beginning have recognised that sexual harassment at workplace entails a relationship of domination between perpetrator and the victim, as a result of which the victim is often unable to protest apprehending adverse consequences upon her conditions of employment, career advancement and even her job itself. This time-limit has not been envisaged by Vishaka[8] judgment or any other judicial precedent. The statute itself permits filing of complaints by persons other than the aggrieved woman because in such cases it is not always possible for the victim herself to come forward.[9] Thus, it is unreasonable that the aggrieved woman’s right to approach the complaints mechanism is extinguished merely because of the time-lapse.

The nature of punishment can be in the form of a written apology, warning, reprimand withholding of promotion, withholding of pay rise or termination from service.[10] However, the punishment imposed can only the ones provided under the relevant service rules or labour law or contract of employment. Monetary compensation can also be paid by the respondent to the complainant, which is deducted from his salary or wages and this provision is irrespective of anything contained in the service rules.[11] The amount of compensation is calculated on the basis of emotional distress faced by the victim, loss in career opportunity, income and financial status of the respondent.[12] A fundamental critique of this is that the power to decide compensation is vested in the hands of a non-judicial body as it is essentially a judicial function.[13] Also, there is no further guidance provided as to how to arrive at the sum of compensation.

The Act provides that before initiating an enquiry, the LCC or ICC has an option to settle the matter through conciliation only at the request of the aggrieved woman, although no monetary compensation can be a part of this process.[14] This provision, however, is severely criticised; the Verma Committee stated that any such attempt is yet another way to undermine the dignity of women.[15] It also ignores the mandate of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the Constitution of India which hold it unethical to expect to negotiate an outcome between the aggrieved woman and alleged perpetrator and being against fundamental rights respectively.

Section 14 of the Act provides for punishment of the complainant in the event of the false or malicious complainant. It clarifies that mere inability to substantiate a complaint or provide adequate proof will not attract action against the complainant. However, it is problematic as subjecting the woman to such fear and distress even before bringing up the complaint defeats the very purpose of the Act. If such provisions have to be made at all, the power to decide should be in the hands of courts of law as opposed to bodies such as ICC or LCC. Right to appeal is also available in accordance with provisions of the service rules applicable or where no such rules exist, under the Industrial Employment (Standing Orders) Act, 1946.[16] The statutory limitation is 90 days from the date of such action/recommendation. Appellate authority varies from State to State. The Act also confers duties upon the employer[17] to take steps to ensure a safe working environment for women employees.

With regard to examine allegations of sexual harassment levelled against Judges/Chief Justices of High Courts (HCs) and Judges of the Supreme Court, the decision rendered in C. Ravichandran Iyer v. A.M. Bhattacharjee[18] laid down the process of “in-house procedure”. In this, the allegations against a Judge are examined by his peers. Its constitution is under the charge of the Chief Justice of India; it is confidential and kept out of public domain to preserve the credibility of the institution. However, in Addl. District and Sessions Judge ‘X’ v. High Court of M.P.[19], it was held that the Bench examining such allegations should not consist of the Judges from the same court.

Comparative Analysis with Laws Across the World

The 2013 Act like the provisions in Australia, Switzerland is inclusive as far as widening the definitions of sexual harassment, workplace, and aggrieved woman are concerned unlike countries such as Brazil where it is restricted to persons in a superior position asking for sexual favours[20] or Germany where it is not punishable by any law at all. But it lacks strict punishments such as imprisonment and large sums of fine payable, in countries such as France, Zimbabwe, and Israel.

It is unfortunate that the 2013 Act does not place any obligation on the employer on the grounds of vicarious liability to give monetary compensation to the aggrieved woman. To this extent, the aggrieved woman has to approach the court for damages by the way of tort law.[21] In the United Kingdom (UK), an employer can be held vicariously liable for the harassment by co-workers. This has been illustrated in cases such as Jones v. Tower Boot Co. Ltd.[22] and Chief Constable of Lincolshire Police v. Stubbs[23]. In the United States of America (USA) also, the employer is vicariously liable but in defence, he/she only needs to demonstrate that immediate action was taken once the incident had come to the attention of the employer.[24]

In India, in only a limited number of cases courts have accorded compensation to aggrieved women following the failure of employers to comply with Vishaka guidelines. Manisha Sharma v. Union of India[25] was one such case, where there was sexual harassment at the workplace in the Northern Railways. The Court held that the composition of the Inquiry Committee was not as per the Vishaka guidelines, thus the Indian Railways was held vicariously liable and had to pay compensation.

There is a dire need to address the loopholes in the present law, in order for it to be more pertinent for women and the duty of employers to ensure a lawfully constituted and approachable Complaints Committee.


  IIIrd year, BA LLB (Hons.), National Law University, Delhi, e-mail: simran.jain@nludelhi.ac.in.

[1]   Vishaka v. State of Rajasthan, (1997) 6 SCC 241: AIR 1997 SC 3011.

[2]   Geetha K.K., Bill on Sexual Harassment: Against Women’s Rights, (2012), Economic and Political Weekly, Vol. XLVII No. 3.

[3]   Ibid.

[4]   Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014) p. 2.

[5]   Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[6]   S. 4(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act).

[7]   S. 9(1) of the 2013 Act.

[8]   Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[9]   Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).

[10]  R. 7(6) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (2013 Rules).

[11]  S. 13(3)(ii) of the 2013 Act.

[12]  S. 15 of the 2013 Act.

[13]  Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).

[14]  S. 10 of the 2013 Act.

[15]  Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law, 66 (23-01-2013).

[16]  R. 11 of the 2013 Rules.

[17]  S. 26 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

[18]  (1995) 5 SCC 457.

[19]  (2015) 4 SCC 91.

[20]  Ungender, Ensuring Diversity and Inclusivity through Legal Compliance <https://www.ungender.in/single-post/Sexual-Harassment-workplace-laws-across-the-world>

[21]  Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).

[22]  1996 EWCA (Civ) 1185 : 1997 ICR 254.

[23]  1999 IRLR 81.

[24]  Ibid.

[25]  2012 SCC OnLine Del 6352 : (2013) 196 DLT 741.

Hot Off The PressNews

Supreme Court: A Supreme Court-appointed one-man panel, holding inquiry into allegations of “larger conspiracy” to frame Chief Justice of India Ranjan Gogoi, has completed the inquiry and is likely to submit the report by mid September.

Sources said Tuesday that Justice A K Patnaik, a retired Supreme Court judge who was appointed by the Supreme Court, examined advocate Utsav Singh Bains, who had made several allegations including fixing of benches in the Supreme Court.

“The affidavit filed by Bains and other documents were examined by the panel. Now, the panel will complete the report and submit it to the Supreme Court in a sealed cover by second week of September,”

Justice Patnaik examined the lawyer from 11 am to 1 pm and his statement was recorded.

The Court had on April 25 constituted the panel to hold inquiry into the allegations of Bains and had asked the Directors of CBI and Intelligence Bureau (IB) as also the Delhi Police Commissioner to cooperate with Justice Patnaik as and when required by him.

A special 3-judge bench of Arun Mishra, Rohinton Nariman and Deepak Gupta, JJ  had said that on the completion of inquiry, Justice Patnaik will file a report in a sealed cover before the court after which the matter will be heard again.

The bench, however, clarified that the outcome of the inquiry shall not affect the in-house procedure/inquiry which is pending in the administrative side in any manner whatsoever. It said,

“this inquiry shall not be with respect to the alleged misbehaviour involving Hon’ble The Chief Justice of India. This is with respect to the contents of the affidavits, whether the affidavits are correct or not.”

On May 6, CJI had got the clean chit from the Supreme Court’s In-House Inquiry Committee which “found no substance” in the allegations of sexual harassment levelled against him. The In-House Inquiry Committee was headed by Justice S A Bobde and comprised of two woman judges of the apex court — Justices Indu Malhotra and Indira Banerjee.

While hearing claims made by Bains that there was a “larger conspiracy” to frame the CJI, the Court had said that there is systematic attempt/game against the Supreme Court. It said,

“We are in anguish the way this institution is being treated for the last 3-4 years is as if this institution will die. This is the court made by the likes of Fali Nariman, Nani Palkhiwala, K Parasaran. … Every day we hear about bench-fixing, every day we hear of wrong practices in this court. This has to go. The day has come when we have to rise to the occasion and tell the rich and powerful that they cannot run the Supreme Court. … Don’t provoke us anymore. We want to tell the rich and the powerful that they are playing with fire. This is not the way a country can run,”

(With inputs from PTI)


Also Read: 

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Sexual Harassment allegations against CJI: Order on advocate’s claims of conspiracy to frame CJI Gogoi reserved

Sexual Harassment allegations against CJI: Justice AK Patnaik to look into ‘conspiracy’ angle

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. dismissed a petition filed by the State against the order of the trial court whereby the accused was discharged of the offence punishable under Section 12 (punishable for sexual harassment) of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The subject FIR was registered on the complaint of the prosecutrix alleging that the accused was her first cousin and they were also friends. It was alleged that they used to talk over the phone and accused recorded some conversation with her, because of which she stopped to him. Further, that on the date of the incident, when the prosecutrix was coming back from school he stopped her mid-way and held her hand and misbehaved with her and asked her as to why she was not talking to him and threatened her and made her sit on his scooty and took her to Rakabganj Gurudwara. Pursuant to this incident, FIR was registered.

The trial court, in the impugned order, while framing charge against the accused under various sections of the Penal Code, discharged him of the offence under Section 12 of the POCSO Act. Trial Court was of the view that the only allegation against the accused was that he had caught hold of the hand of the victim and forcibly took her to Gurudwara on his scooty.

Meenakshi Dahiya, APP for the State, challenged the order of discharge. Per contra, Rakesh Pal Singh, Advocate for the accused, opposed the petition.

The High Court noted that perusal of the record as also the statement was given by the prosecutrix does not prima facie show that any act was done by the accused with any sexual intent. The allegations against the accused, who was the first cousin of the victim, showed that he was upset with the victim not talking to him. The Court observed, “The substantive offence (Section 11) for which punishment is prescribed under Section 12 POCSO, clearly indicates that the precondition for the section to be attracted is that an act, as enumerated therein, is done with sexual intent. Clearly in the subject case, from the allegations against the respondent, no such intention even prima facie is coming forward.”

In such view of the matter, it was held that there was no infirmity in the impugned order. The petition was, therefore, dismissed. [State (NCT of Delhi) v. Baljeet Singh, 2019 SCC OnLine Del 9109, decided on 11-07-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of K. Harilal and T.V Anil Kumar, JJ. dismissed an appeal made by the maternal grandparents of the child after taking into consideration, the welfare of the child.

This case is related to the custody of the child. In this case, appellant – maternal grandparents of the child – submitted before the Court that their daughter Sajna was married to the respondent and she was later found dead in her matrimonial house in a suspicious condition. They further claimed that the 2-year girl child of the appellant was always taken care of by them and the respondent- father never took care of the child as if he was not interested in the child. A petition was filed by the grandparents in the Family Court for a decree of perpetual prohibitory injunction restraining the respondent from taking forcible custody of the child. The Family Court dismissed the petition. Aggrieved thereby, this appeal had been filed by the grandparents.

Learned counsels for the appellant Jacob Sebastian and K.V Winston submitted that after the suspicious death of the appellant’s daughter, the child was taken care of by them and the respondent declined to take care of her. A case was also lodged against the respondent in the police station under Sections 498-A, 304-B, 302, 201 and 149 of the Penal Code, 1860. Further, the respondent was a drunkard and spendthrift who used to ill-treat their deceased daughter and demanded dowry. His cruel conduct towards his wife resulted in her death. Respondent remarried for his pleasure, forgetting that he had a child to look after. Thus, he was unfit to seek permanent custody of the child. They also alleged respondent to have sexually harassed the child.

Learned counsels for the respondent, G. Sreekumar averred that after the death of his wife, respondent alone had maintained the child and taken care of her affairs. Appellant or her family members never took care of the child. He was not responsible for the death of his wife and as a matter of fact, her death was due to heart failure. She was an epileptic patient even before marriage which had been suppressed. It was claimed that the respondent was a driver by occupation and able to meet the financial needs of the child.

The Court observed that whenever there is a rival claim for guardianship, the court’s power to appoint the most suitable person among the contestants could be exercised only upon taking into view those considerations which weigh in favour of the welfare of the child. The Court also observed that the allegations made by the appellant were false. Also, the respondent earned well whereas the appellants were old and had less financial means. Moreover, the allegation made regarding sexual harassment was false.  The Court thus dismissed the appeal and gave permanent custody of the child to the respondent-father. However, appellants were allowed to meet the child on the premises of the Family Court every Saturday from 10:30 AM to 4:00 PM.[Suhara v. Muhammad Jaleel, 2019 SCC OnLine Ker 1237, decided on 10-04-2019]

Hot Off The PressNews

The In-House committee, headed by Justice SA Bobde, also comprising Justices Indira Banerjee and Indu Malhotra, found “no substance” in the sexual harassment allegations levelled by a former Supreme Court employee against the CJI Ranjan Gogoi.

The notice published on Supreme Court website read that the report has been submitted to the next senior judge competent to received the report i.e. Justice Arun Mishra. A copy of the report has also been handed over to the Chief Justice. It also stated that according to the verdict in Indira Jaising v. Supreme Court of India, (2003) 5 SCC 494, the report of any Committee constituted as a part of in-house procedure can’t be made public.

The former employee had submitted her complaint against the CJI in an affidavit form to 22 Supreme Court judges on April 19.


Also Read: 

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Sexual Harassment allegations against CJI: Order on advocate’s claims of conspiracy to frame CJI Gogoi reserved

Sexual Harassment allegations against CJI: Justice AK Patnaik to look into ‘conspiracy’ angle

Case BriefsSupreme Court

Supreme Court: A special 3-judge bench of Arun Mishra, Rohinton Nariman and Deepak Gupta, JJ has appointed former Supreme Court judge, Justice A. K. Patnaik, to hold an inquiry into the allegations made in the affidavits.to probe an advocate’s claim that there was a “conspiracy” to frame Chief Justice Ranjan Gogoi in a sexual harassment case.

The bench, however, clarified that the outcome of the inquiry shall not affect the in-house procedure/inquiry which is pending in the administrative side in any manner whatsoever. It said,

“this inquiry shall not be with respect to the alleged misbehaviour involving Hon’ble The Chief Justice of India. This is with respect to the contents of the affidavits, whether the affidavits are correct or not.”

The Court also asked the Director of Central Bureau of Investigation (CBI), the Director of Intelligence Bureau (IB) and the Commissioner of Police, Delhi, to cooperate with the Hon’ble Judge as and when their services are required at any point of time for the purpose of investigation of the matter.

Asking Justice Patnaik to submit a report to this Court on the basis of the inquiry as to the allegations mentioned in the affidavits, the bench said that it will next take up the matter after the report is submitted.

On 24.04.2019, Advocate Bains had submitted an affidavit in Court in a sealed cover. The bench had directed that,

“It is to be kept in a sealed cover in total confidentiality, as it contains highly sensitive information pertaining to the alleged conspiracy, according to him, to frame Hon’ble The Chief Justice of India into a case of sexual harassment.”

Naming Tapan Kumar Chakraborty and Manav Sharma and others in his affidavit, Advocate Bains had mentioned that,

“the disgruntled employees have ganged together in order to frame Hon’ble The Chief Justice of India in the false charge of sexual harassment after their dismissal from their services.”

He has also alleged that they have asserted that they could fix the Bench of the Judges.

The Court had, on 24.04.2019, said,

“Considering the seriousness of the allegations as the system has absolutely no place for such fixers, we cannot leave the matter at that. It becomes our responsibility to keep this Institution clean as well as to ensure that the image of this Institution is not tarnished by such allegations to undertake the probe in the matter.”

[In Re : Matter of great public importance touching upon the Independence of Judiciary, 2019 SCC OnLine SC 604, order dated 25.04.2019]


Also read:

Sexual Harassment allegations against CJI: Order on advocate’s claims of conspiracy to frame CJI Gogoi reserved

Sexual Harassment allegations against CJI: Advocate claiming ‘conspiracy’ to appear before SC tomorrow

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Hot Off The PressNews

Supreme Court: A special 3-judge bench of Arun Mishra, Rohinton Nariman and Deepak Gupta, JJ has reserved its order on the issue of setting up an inquiry committee to probe an advocate’s claim that there was a “conspiracy” to frame Chief Justice Ranjan Gogoi in a sexual harassment case. The bench will pronounce its order later in the day.

During the course of the hearing, advocate Utsav Bains, who made the claim about a conspiracy to frame Justice Gogoi, submitted an additional affidavit on the direction of the court. In his affidavit, Bains submitted that he cannot share the names of the “fixers” as “privileged communication under the Advocates Act” cannot be disclosed.

Attorney General KK Venugopal said the claim of privilege under Section 126 of the Evidence Act is not applicable to any communication between Bains and the alleged fixers. He said that a court can ask for any document relevant to a case.
Supporting the Attorney General’s argument, Supreme Court Bar Association (SCBA) president Rakesh Khanna submitted that there is “no sacrosanct right” to withhold any document. He said that the court has the power to seek production of documents over which privilege
is claimed.

“Whatever he (Bains) divulged to us, in any case, our power to inspect the documents is there,”

Mishra, J said,

“There is systematic attempt/game, so many things have not come out. The truth has not come out. These things are in the air for a long time and people of the country must know the truth. There has been a systemic attack against the Supreme Court,”

“We are in anguish the way this institution is being treated for the last 3-4 years is as if this institution will die. This is the court made by the likes of Fali Nariman, Nani Palkhiwala, K Parasaran. … Every day we hear about bench-fixing, every day we hear of wrong practices in this court. This has to go. The day has come when we have to rise to the occasion and tell the rich and powerful that they cannot run the Supreme Court. … Don’t provoke us anymore. We want to tell the rich and the powerful that they are playing with fire. This is not the way a country can run,”

Senior advocate Indira Jaising told the court that the inquiry headed by Justice S A Bobde into the sexual harassment charge and the case before the court should be conducted together.

Mishra, J, however, clarified that that the outcome of this inquiry into the conspiracy charge will not affect that inquiry into the sexual harassment charge. He remarked,

“Three to five per cent lawyers are giving a bad name to this institution. Don’t provoke us any further, we are worried as judges. We will see
how it can be an independent inquiry.”

On Tuesday, a three-member committee of the court led by Justice Bobde, the senior-most judge after the Chief Justice, was formed to look into the allegation of sexual harassment made by a dismissed employee against Justice Gogoi. The other two members of the committee are Justices NV Ramana and Indira Banerjee. Justice Ramana is the third in the seniority list in the Supreme court and will the Chief Justice after the retirement of Justice Bobde.

(Source: ANI)


Also read:

Sexual Harassment allegations against CJI: Advocate claiming ‘conspiracy’ to appear before SC tomorrow

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way