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Synopsis

The Supreme Court recently laid down guidelines for the trial courts to deal with the aggrieved persons, who are victims of sexual harassment, in an appropriate manner.

Court said,

"It is the duty and responsibility of trial courts to deal with the aggrieved persons before them in an appropriate manner, by:

a. 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;
b. 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;
c. 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;
d. Completing cross-examination in one sitting, as far as possible."

Top Court further remarked that a police officer ought to be sensitive to the mental state of a sexual harassment victim and the fact that she may have recently been subjected to a traumatic experience.

Calling out the police’s inaction in a case before it to be most unfortunate, a bench of Justice DY Chandrachud and Justice JB Pardiwala said,

"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. They must abide by the law and enable the smooth registration of an FIR."

Adding that the police must treat all members of the public in a fair and impartial manner, the division bench added that this is all the more essential in cases of sexual harassment or violence, where victims (who are usually women) face great societal stigma when they attempt to file a complaint.

"It is no secret that women’s families often do not approve of initiating criminal proceedings in cases of sexual harassment. Various quarters of society attempt to persuade the survivor not to register a complaint or initiate other formal proceedings, and they often succeed. Finally, visiting the police station and interacting with police officers can be an intimidating experience for many. This discomfort is often compounded if the reason for visiting the police station is to complain of a sexual offence...", said the bench.

Court further observed that the police ought not to create yet another obstacle by declining to register an FIR despite receiving a complaint regarding sexual harassment, rather, they should put the complainant at ease and try to create an atmosphere free from fear.

It was further clarified that whether or not the offence complained of is made out is to be determined at the stage of investigation and / or trial and it is not open to the police to decline to register an FIR.

Court made these observations while dealing with an appeal filed by one Anusha Deepak Tyagi, a yoga instructor at Lakshmibai National Institute of Physical Education, Gwalior who had alleged that the Vice-Chancellor of the Institute in March 2019, had touched her inappropriately at the Institute.

Tyagi had lodged a complaint, but no action was taken. She had then approached the High Court with the grievance that no inquiry was being conducted into her allegations, which were to be enquired into under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act 2013.

In this backdrop of chequered litigation, the High Court had held that the Judicial Magistrate First Class (JMFC) was not under an obligation to direct the police to register the FIR and use of the expression “may” in Section 156(3) CrPC indicated that the JMFC had the discretion to direct the complainant to examine witnesses under Sections 200 and 202 CrPC, instead of directing an investigation under Section 156(3). 

This was challenged before the Supreme Court. In this regard, it was noted that the Magistrate has wide powers under Section 156(3) which ought to be exercised towards meeting the ends of justice.

Court further said that in such 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 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.

"Especially in cases alleging sexual harassment, sexual assault or any similar criminal allegation wherein the victim has possibly already been traumatized, the Courts should not further burden the complainant and should press upon the police to investigate. 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 bench said.

Accordingly, while setting aside the impugned judgment, the JMFC Gwalior has been asked to order an investigation by the police under Section 156(3) CrPC. 

Stressing on the need for a fair investigation, top court directed that the investigation shall be supervised by a woman officer not below the rank of Superintendent of Police to be nominated by the DIG of the zone concerned.

Why should courts dealing with complainants of sexual harassment and sexual assault do so in a sensitive manner?

The Supreme has stressed on the importance for all courts to remain cognizant of the fact that the legal process tends to be even more onerous for complainants who are potentially dealing with trauma and societal shame due to the unwarranted stigma attached to victims of sexual harassment and assault.

"..especially in cases where the police fails to address the grievance of such complainants, the Courts have an important responsibility..", Court has held.

The courts must try to ensure that the process of attempting to bring alleged perpetrators to justice is not onerous for the victims, the top court has held, adding that aggrieved persons should not have to run from pillar to post for the mere registration of a complaint and initiation of investigation especially when a cognizable offence is prima facie made out in their complaint.

Senior Advocate Anitha Shenoy, appeared on behalf of the appellant, and Senior Advocate R Basant, appeared on behalf of the accused.

Case Title: Anusha Deepak Tyagi vs. State of Madhya Pradesh & Ors.