A two-judge bench of the court, comprising Justices D.Y. Chandrachud and J.B. Pardiwala, has underlined the duty of the magistrate to direct the police to investigate complaints of sexual harassment and assault, and the need to sensitise the police and the trial judge towards the complainant’s trauma.
IN a significant judgment delivered on August 5, the Supreme Court held that in cases of sexual harassment and sexual assault, courts should not burden the survivor, and should press upon the police to investigate the crime. A division judge bench comprising Justices Dr. D.Y. Chandrachud and J.B. Pardiwala made these observations while directing the Judicial Magistrate First Class (‘JMFC’), Gwalior, to order registering of a First Information Report (‘FIR’) against the former Vice-Chancellor of the Lakshmibai National Institute of Physical Education (‘LNIPE’), accused of inappropriately touching the survivor, who is a yoga instructor in the institute.
The bench also directed that the investigation would be supervised by a woman officer not below the rank of Superintendent of Police, to be nominated by the Deputy Inspector General of Police of the zone concerned.
“… Due regard must be had to the fact that it is not possible for the complainant to retrieve important evidence regarding her complaint. It may not be possible to arrive at the truth of the matter in the absence of such evidence. The complainant would then be required to prove her case without being able to bring relevant evidence (which is potentially of great probative value) on record, which would be unjust”, the judgment, authored by Justice Dr. Chandrachud, said.
The bench was ruling on an appeal filed by a survivor of sexual harassment against the Madhya Pradesh High Court’s order refusing to interfere with the order of JMFC. The JMFC had observed that the occurrence of the offence by the accused persons was shown, but proceeded to treat the case as a complaint case, instead of ordering the registration of the FIR. The high court was of the view that the JMFC was not under an obligation to direct the police to register the FIR, and the use of the expression “may” in Section 156(3) of the Code of Criminal Procedure, 1973 (‘CrPC’) indicated that the JMFC had the discretion to direct the complainant to examine witnesses under Sections 200 and 202 of the CrPC, instead of directing an investigation under section 156(3).
Disapproving of the high court’s order, the Supreme Court held, “It is true that the use of the word “may” implies that the Magistrate has discretion in directing the police to investigate or proceed with the case as a complaint case. But this discretion cannot be exercised arbitrarily and must be guided by judicial reasoning.”
It added that in cases where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint, but also such facts are brought to the Magistrate’s notice which clearly indicate the need for a police investigation, the discretion granted in section 156(3) can only be read as it being the Magistrate’s duty to order the police to investigate.
“In cases such as the present, wherein, there is alleged to be documentary or other evidence in the physical possession of the accused or other individuals which the police would be best placed to investigate and retrieve using its powers under the CrPC, the matter ought to be sent to the police for investigation”,the Supreme Court noted.
In March 2019, the victim accused the then Vice Chancellor, LNIPE of sexual harassment. Despite approaching the concerned police station, and the Superintendent of Police, no FIR was lodged on her complaint. The victim then approached the Magistrate under Section 156(3) of the CrPC, seeking registration of the FIR. Meanwhile, she also approached the high court, seeking to launch proceedings against the accused under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
In May 2020, an Internal Complaints Committee (‘ICC’) was constituted, with the approval of the Union Ministry of Youth Affairs and Sports. The report of the ICC found that the allegations which were levelled against the accused stood established.
The court has also chided the police for its inaction. “We cannot help but note that the police’s inaction in this case is most unfortunate. It is every police officer’s bounden duty to carry out his or her functions in a public-spirited manner. The police must be cognizant of the fact that they are usually the first point of contact for a victim of a crime or a complainant”, the judgment stated.
It added that the police ought not to create yet another obstacle by declining to register an FIR despite receiving a complaint regarding sexual harassment. Rather, it should put the complainant at ease and try to create an atmosphere free from fear. It ought to be sensitive to her mental state and the fact that she may have recently been subjected to a traumatic experience.
In addition, the bench also issued certain guidelines to be adhered to in cases of sexual harassment and assault:
“Allowing proceedings to be conducted in camera, where appropriate, either under Section 327 CrPC or when the case otherwise involves the aggrieved person (or other witness) testifying as to their experience of sexual harassment/violence;
Allowing the installation of a screen to ensure that the aggrieved woman does not have to see the accused while testifying or in the alternative, directing the accused to leave the room while the aggrieved woman’s testimony is being recorded;
Ensuring that the counsel for the accused conducts the cross-examination of the aggrieved woman in a respectful fashion and without asking inappropriate questions, especially regarding the sexual history of the aggrieved woman. Cross-examination may also be conducted such that the counsel for the accused submits her questions to the court, who then poses them to the aggrieved woman;
Completing cross-examination in one sitting, as far as possible.”
Click here to view the Supreme Court’s full judgment.