Criminal Appellate Jurisdiction
Criminal Appeal No. 965 of 2017
Justice A.M BADAR
Case Title: X vs. State of Maharashtra
Decision dated: 9th January, 2019
Introduction
In the case of X vs. state of Maharashtra and ors. (2019), On 9 January 2019, the High Court disagreed with the decision of the Internal Complaint Committee (ICC) which had concluded that the complaint filed by the woman amounts to a complaint against misconduct and misbehaviour, rather than sexual harassment. The complainant claimed that her subordinate used abusive and unprofessional language against her. Bombay High court observed that the IC had failed to take into consideration the additional circumstances provided under section 3 (2) of the POSH Act which also amounts to sexual harassment including creation of an intimidating or hostile environment for women and humiliating treatment likely to affect health and safety of a woman.
Facts of the case
The sufferer who was working at the College of Engineering, Pune had filed an application challenging the order dated 15/11/2017 which rejected the anticipatory bail application.
Bhaskar Karbhari Gaikwad ("Respondent"), was working as a storekeeper at the same college. Gaikwad had filed an FIR in 2017 against the sufferer, Director BB Ahuja and Administrative Officer Girish Joshi. They were booked by kadki police under section 167, 177, 182, 211, 500 and 34 of the Indian penal code (IPC), as well as sections 3 (1)(p), 3(1)(q) and 3(2)(vii) of Scheduled Caste and Scheduled Tribes ( Prevention of Atrocities) Act. He had alleged that they conspired and initiated false legal proceedings against him to tarnish his image. According to him, they were forcing him to withdraw a complaint against the Director of technical education in charge, Subhash Mahajan, against whom he had filed an atrocity complaint in 2016, which was rejected by High Court in May 2017.
The next day, the sufferer lodged a complaint against Gaikwad on 6/5/2017 by email. In the complaint, she mentioned the improper behaviour and abusive language used by Bhaskar Gaikwad for her. The sufferer reported that Bhaskar Gaikwad was very abusive. An inquiry into that complaint was conducted by the Internal committee.
Observations
The IC unanimously concluded that the complaint lodged by the Appellant was not reflecting sexual harassment, but it reflected the misconduct and misbehaviour of the subordinate during the course of employment. IC further concluded that as the complaint was not in respect of sexual harassment, it needs to be dealt with by the appropriate disciplinary committee. The sufferer applied for anticipatory bail on this FIR which was rejected by the lower court.
The IC did not consider the provisions of sub-section (2) of section 3 of the POSH Act. It is clear that implied or explicit threat of detrimental treatment in her employment amounts to sexual harassment of women at the workplace. Interference with her work or creating an intimidating or offensive or hostile work environment for a woman at her workplace and showcasing a humiliating treatment likely to affect the health and safety of a woman's workplace also amount to sexual harassment at the workplace. The complaint dated 6/5/2017 of the sufferer ought to have been considered by keeping in mind these circumstances.
The learned counsel for the sufferer argued that in her complaint she had not mentioned that the complaint was for sexual harassment.
The respondent's argument was that sufferer had committed offences under sections 3 (1)(p), 3(1)(q), and 3(2)(vii) of the Atrocities Act and the arguments in this regard were heard in the court.
Provisions of Atrocities Act section 3 (1)(p) and 3(1)(q) Stated that " whoever not being a member of a schedule caste or schedule tribe institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of schedule caste or a schedule tribe or gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to be inquiry or annoyance of a member of scheduled caste or a scheduled tribe. Section 3 (2)(vii) of the Atrocities Act provides the punishment that would be inflicted on a person if the offence under sections 3 (1)(p) and 3(1)(q) are proved.
The sufferer approached the High Court through advocates Niranjan Mundargi and Prasanna A Bhangale. It was argued that X did not explicitly mention that her complaint against Gaikwad of sexual harassment in her email to college of engineering Pune. Gaikwad's lawyer Nilesh Y Ukey, on the other hand, told the court that the sexual harassment complaint was filed mainly to malign Gaikwad’s image and to make him withdraw the complaint against the Directorate of technical education (DTE) chief. He also argued that the Gaikwad was not heard by the prevention of sexual harassment committee.
Conclusion
After hearing all the sides, AM Badar granted anticipatory bail to sufferer on January 9. There is no pronouncement by the competent authority that the complaint lodged by accused is false, malicious or vexatious. On the contrary the committee constituted under section 4 of the prevention of sexual harassment of woman act has not considered the provisions of sub section (2) of section 3 concluded that the complaint is not in respect of sexual harassment, but it is respect of misbehavior and misconduct of the subordinate with the superior. The High Court said that there is no finding by any authority that the complaint or any subsequent statement sufferer made to the public servant is false or frivolous and with a motive of causing injury or annoyance to respondent. The judge observed that there is no prima facie case against sufferer regarding any offence under the Atrocities Act, as alleged against her, Thus the application for anticipatory bail was granted.
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