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Synopsis

The Madras High Court recently directed the Central Government to ensure the proper existence of the Internal Complaints Committee (ICC) in the Armed Forces in accordance with the mandates of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.

Court further ordered the government to sensitise the armed personnel by imparting gender-sensitive awareness training to achieve its objectives.

The bench of Justice RN Manjula also issued slew of guidelines for Criminal Courts for dealing with the matters of handing over custody of the subjects of the Armed Forces.

The court was dealing with a criminal petition filed by the State represented by the Inspector of Police, All Women Police Station Central, Coimbatore City to set aside the order dated 23.10.2021 passed by I Additional District & Sessions Court, Coimbatore.

The Inspector of Police had registered a case against one Amitesh Harmukh of All Women Police Station Central, Coimbatore City for the offence under Section 376(1) IPC.

In the case, the defacto complainant and the accused were flight lieutenants in Indian Air Force and they were undergoing a Professional Knowledge Course for seven weeks at the Air Force Administrative College.

allegedly, after an evening party at the Officers Mess in AFAC with the course officers, the defacto complainant fell asleep in a room that was locked by her friend from outside. 

Thereafter, allegedly, the accused trespassed into her room and committed an offence of rape on her. The defacto complainant was unconscious and she was not in a state to offer resistance. It was also alleged that after the occurrence, the accused slept next to the victim in the same bed.

Further, allegedly, the accused sent a Whatsapp message to the defacto complainant's friend and on getting her permission, he came to their room and confessed about the offence to the defacto complainant's friend and an another person. The Defacto complainant's friend recorded the confession given by the accused.

Subsequently, a case was registered against the accused to the Air Force Administrative College Authorities (in short AFAC). As per the advice of the officers, the victim had undergone medical examination at the Air Force Hospital, however, allegedly, she suffered humiliation at the hands of the doctors therein.

Later on, having not satisfied with the way the complaint was handled by the AFAC authorities, the victim preferred a police complaint on 20.09.2021 and consequently, a case in Crime No.09 of 2021 was registered under Section 376(1) IPC.

The Police started the investigation and the accused was arrested. As per the police, prior to the arrest information was given to AFAC Authorities orally. The grounds of arrest were communicated to the accused in compliance of Section 41-B and 41-D of CrPC and a written intimation was given to AFAC Authorities, but they omitted to give acknowledgement.

The Police was allowed to take custody of the accused after a long delay. After the accused was arrested, he was produced before the Judicial Magistrate, Additional Mahila Court, Coimbatore, on the same night.

However, Commandant, Air Force Administrative College filed a petition seeking custody of the accused under Section 124 of the Air Force Act, 1950 (the Act) r/w Section 475 CrPC and the Criminal Courts and Court Martial (adjustment of jurisdiction) Rules, 1978.

Hence the custody of the accused was handed over to the air force authorities by the Magistrate. 

As per the police, the Magistrate did not consider the objections raised by it and also the request for seeking police custody. The order of the Magistrate was challenged before the Principal District and Sessions Court which also did not revise the order of the Magistrate to hand over the custody of the accused to Air Force Authorities.

Aggrieved over the said order, the police moved the high court. 

The argument put forth by the counsel for the police was that the stage to hand over the custody would arise only at the time of institution of the proceedings and the language of Section 475 CrPC and Sections 124 and 125 would confirm the same.

Whereas, the counter argument of the respondent was that the stage to exercise option itself arises only if the charge sheet has been filed before the Criminal Court and even before that the Court of Inquiry has been formed and it had taken up the investigation.

The court held that if the Court of Inquiry has undertaken the investigation, it is indicative of assumption of jurisdiction by the Court Martial and in such case, there is no necessity to continue or complete the investigation by the police and hence the necessity to lay the charge sheet by police before the Criminal Court and the consequential need to invoke Section 475 CrPC read with the corresponding Court Martial (Adjustment of Jurisdiction ) Rules, will not arise.

The high court clarified that even though the Magistrate at the first level had rightly understood the legal position and passed orders to hand over the custody of the accused, he omitted to add that the further investigation of the police should not be continued unless it is so desired by the Appropriate Authority under the Act.

The Revisional Court further confounded the situation by directing the police to continue the investigation and prepare two copies of evidence and lay one before the regular Court and another before the Court Martial, added the court. 

Court noted that in the instant matter, the necessity to register a case by the police arose due to the complaint filed by the victim was allegedly not handled properly. 

"The remedy available to all aggrieved Officers under Section 27 of the Act by making complaints against their superiors to the Central Government or a remedy of re-trial at the discretion of the Central Government under Section 126, cannot be an immediate answer to the most demanding post reporting situations of the victims of sexual offences," said the court. 

Court opined that this hard-core reality can only be remedied through legislative measures by properly addressing the gap in such special legislation and by ensuring the compliance of mandates of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 in the Armed Forces.

Case Title: State rep.by The Inspector of Police, AWPS Central, Coimbatore City v. Commandant, Air Force Administrative College, Red Fields, Coimbatore