Facts of the Case:

In the present case, the petitioner approached the Court under article 226/227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973, (CRPC) for setting aside order passed by the Additional Sessions Judge (ASJ), New Delhi upholding a summons order passed by the learned Chief Metropolitan Magistrate (CMM), New Delhi.

Respondent No. 2 had filed a Complaint dated 31.12.2014 in the Department of Hospitality and Protocol, Jammu and Kashmir Government, under the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) against the Petitioner. On 11.02.2015, after examining all the witnesses, the Enquiry Committee submitted its Report, wherein it was observed that there were certain inconsistencies in the statement and the written submissions filed by the Respondent No. 2, and therefore the allegations made against the Petitioner were not established.

Respondent no. 2 had had also filed a Complaint with the Office of the Assistant Commissioner of Police, and subsequently an FIR was registered against the petitioner under Section 354A, 506 and 509 Indian Penal Code, 1860 (IPC). Investigations conducted in the FIR by the Police led to the filing of a Closure Report. The Complainant preferred a Protest Petition against the Closure Report, after which a Supplementary Closure Report was filed stating that no evidence has come on record against the Petitioner, except the statement of the Complainant, and there were no other witnesses who corroborated the allegations made by her.

Subsequently, The Ld. CMM, vide Order dated 21.08.2017, noted that the conclusions reached by the IO were not correct, and that to contrary, there is ample and sufficient material which warrants summoning of the Petitioner to face trial for the offence under Section 354A and 509 IPC. Accordingly, summons were issued against the Petitioner. The Petitioner preferred a Criminal Revision against the summoning Order dated 21.08.2017, which was dismissed vide Order 04.09.2018 by Ld. ASJ.

The present Petition has been filed against the Order passed by the ASJ, on the grounds that the Report dated 11.02.2015 submitted by the Enquiry Committee constituted by the Government of Jammu and Kashmir under the provisions of POSH Act, is a statutory Report and could not have been ignored or brushed aside by the courts.

Contentions of the Petitioner:

The Petitioner contended that the Statutory Report of the Committee and two Police Reports did not find any substance in the allegations of the Complainant. It was submitted that both Ld. ASJ and Ld. CMM erred in not considering the Report of the Complaints Committee, wherein it was categorically mentioned that after appreciation of evidence available, the allegations made by the Respondent No. 2, are not established. The Petitioner further submitted that the Complaint seems to have been triggered because of the fear of alleged transfer of Respondent No. 2 from Delhi.

The Petitioner further submitted that the witnesses produced by the Complainant/Respondent No.2 in her support, did not corroborate the allegations of sexual harassment and that the Report submitted by the Enquiry Committee constituted by the Government of Jammu and Kashmir under the provisions of POSH Act, is a statutory Report and could not have been ignored or brushed aside by the courts.

Additionally, It was submitted that the lower courts failed to appreciate that the allegations in the FIR are absurd and inherently improbable and that the criminal proceedings are “maliciously instituted with an ulterior motive for wreaking vengeance on the Petitioner and with a view to spite him due to private and personal grudges.”

Contentions of the Respondent:

Respondent No. 2, in written submissions, prayed for dismissal of the petition. The Respondent contended that the petitioner was an influential person and that the FIR had been registered only after directions of the Court. When she approached the then DCP seeking registration of the FIR, she was advised instead to seek a transfer. It was further submitted that despite the Magistrate allowing her protest petition, the police filed a second closure report.

Moreover, it was further submitted that the Complainant was transferred when she was on maternity leave and even her counsel was targeted, having been asked to resign from his position as Deputy Advocate General of J&K shortly after taking over her case.

The Respondent No.2 relied on Ajit Kumar Nag vs G.M.(P.J.) Indian Oil Corporation (2005), and State of Bihar v Kamleshwar Prasad Cr. Misc (2018) to seek dismissal of the present Petition on the grounds that Departmental proceedings have no bearing on criminal proceedings. Further, the Respondent no. 2 contended that the Petitioner was just trying to delay the trial proceedings so as to ensure that the victim withdraws the prosecution, out of sheer helplessness.

Court’s Observation:

Quoting Shakespeare, the Court opened its observations with the lines:

“First my Fear; then my courtesy;

Last my speech.

My fear is your displeasure,

My courtesy my duty, and

My speech to beg your pardon.”

The Court noted the continuing plight of women in the workplace, remarking that,

“This case is a reflection of Society, where despite stringent legislation and repeated lamentation about gender neutrality and equality to provide safe work environment; unfortunately the psychology and mindset of the men in Work Place where sexual harassment continues to haunt the women at Work Place, especially when it involves “Power Dynamics”, has remained unchanged. The education or high Government position, is no protection to a woman from being subjected to sexual harassment.”

Placing reliance on the provisions under CrPC, and apex court judgments, the Court observed that even though the State had filed the closure Report twice, the learned MM was well within his powers to appreciate The investigations done and the evidence collected to form and independent opinion to take the cognizance Report, irrespective of the Closure Report.

On the question of whether the Disciplinary Enquiry Report/ICC Report is binding in the Criminal Trial and that no FIR or the Chargesheet can be filed, merely because the Petitioner had been exonerated in a Departmental Enquiry, the Court relied on M/s Stanzen Toyotetsu India Pvt. Ltd. wherein it was declared by the Apex Court that Departmental proceedings are distinctly different from the purpose behind prosecution of offenders for commission of an offence by them. Quoting the judgment, the Court observed,

“While criminal prosecution for an offence is launched for violation of a duty that the offender owes to the Society, Departmental Enquiry is aimed at maintaining discipline and efficiency in service. The standard of proof in the departmental proceedings is not same as of the criminal trial. It was observed that conceptually the two operate in different spheres that are intended to serve distinctly different purposes. Therefore, merely because the Petitioner has been exonerated in the Departmental Enquiry, cannot be the sole basis for discharging him in the present FIR.”

Therefore, the Court held that mere exoneration in the Departmental Enquiry cannot be the sole basis for discharging the Petitioner in the present FIR.

Noting that in the present case, the state attempted to deflate the strength and courage of Respondent no.2, the Court observed:

“Safe Work environment, with respect, dignity and decency are fundamental to gender equality. While now, though grudgingly, woman’s right to equal opportunity of work, has found recognition but challenges being faced at Workplace are insurmountable and still resisted by “masculine strategists” who have specious reasons to justify their acts and

attitudes”

Referring to Kerry Ellison v. Nicholas F. Brady, the Court reiterated that men may perceive certain acts or comments as “harmless social interactions”, but the emphasis needs to be placed on perspective of the victim, whose sense of offence must be considered in analysing whether the conduct constitutes harassment.

The Court held that the Committee’s report could not have been the sole basis for accepting the closure report, and that when the complainant’s statement is read holistically, sufficient allegations emerge to make out a case under Sections 354A and 509 IPC. Moreover, the Court observed that To say that the statement of the Complainant is not corroborated by independent witnesses, would not be correct. In this regard the Court re-emphasized, “the sole testimony of the complainant/prosecutrix is sufficient to bring home a conviction, if it is found to be of sterling quality.”

Court’s order:

The Court concluded that there was sufficient material by way of statement of the Complainant and the witnesses to prima facie disclose an offence under Section 354-A/509 IPC. Finding no merit in the present petition, the Court dismissed it.

Written by Adv. Prerna Murarka