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2020 DIGILAW 603 (JK)

Devi Dayal Khajuria v. State

2020-11-18

SANJAY DHAR

body2020
Judgment Sanjay Dhar, J.—Through the medium of instant petition, the petitioner has challenged the proceedings initiated against him by the Court of learned Judicial Magistrate 1st Class (Munsiff) Akhnoor (hereinafter referred to as the ‘trial Magistrate’) emanating from FIR No. 7/2016 that has culminated in filing of charge sheet bearing No. 24/2016 for offence under Section 354-A RPC. 2. As per the contents of charge sheet, which is subject matter of instant petition, the petitioner, who was serving as Head Master in Government Girls Middle School Kot Maira, used to make telephone calls to the respondent No.2, who was also serving as Teacher in the same school. This was being done by the petitioner with an intention to develop physical relations with the respondent No.2, thereby causing harassment to her. During investigation of the case, it was stated by respondent No.2 in her statement recorded under Section 164 of Cr.PC that, on 17.09.2014 when all other staff of the said school was on leave and the students had left the school, the petitioner came near her and attempted to kiss her. She has further stated that the petitioner tried to catch hold of her private parts and in the meantime, two students came over there and petitioner started talking to them and the respondent No.2 went away from there. On the basis of the said statement of respondent No.2, the police, after investigation of the case, found that the offence under Section 354-A RPC is made out against the petitioner and produced the challan which is subject matter of instant petition. It is pertinent to mention here that the report was lodged before the police by respondent No.3, the husband of respondent No.2. Upon presentation of the challan, the learned trial Magistrate took cognizance of the offence and issued process against the petitioner. It is these proceedings which are under challenge before this Court by way of the instant petition. 3. The primary ground on which the petitioner has challenged the proceedings initiated against him is that, in matters pertaining to sexual harassment of women at work place, cognizance in respect thereto can be taken by the Court only in accordance with the provisions of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act 2013 (hereinafter referred to as the ‘Act of 2013’). According to the learned counsel for petitioner, as per Section 27 of the Act of 2013, cognizance of offences under the said Act can be taken only on a complaint made by the aggrieved woman or any other person authorized by the Internal Committee or Local Committee in this behalf. The complaint in the instant case has been filed by the husband of respondent No.2, as such, according to the learned counsel, the trial Magistrate could not have taken cognizance of the offence against the petitioner. 4. I have heard learned counsel for the parties and perused the record of the case. 5. The only contention raised by the petitioner in this case is that because the complaint in the instant case has been lodged before the police by the husband of the victim and not by the victim herself, as such, cognizance of the offence could not have been taken by the trial Magistrate. It has been contended by the learned counsel that the provisions contained in the Act of 2013 are special in nature and they have an overriding effect over the general penal law contained in the RPC. Thus, it was incumbent for the Investigating Agency as well as for the learned trial Magistrate to ensure that the procedure prescribed under the Act of 2013 is followed before initiating criminal proceedings against the petitioner. 6. On the other hand, learned counsel for the respondents has contended that the provisions of Act of 2013 are in addition to and not in derogation of provisions of any other law, as such the complainant or a victim has an option to approach the Court or Investigating Agency either by invoking the general Penal Law or to resort to the mechanism provided under the Act of 2013. In this regard, the learned counsel has relied upon the judgment of this Court rendered in D.B.Singh vs. State of J&K and another (CRMC No. 620/2018, decided on 01.02.2019). 7. In order to press home his contention that the learned trial Magistrate in the instant case has taken cognizance of the offence on the basis of charge sheet filed by the Police Station, Akhnoor without following the provisions contained in the Act of 2013, the learned counsel for the petitioner has heavily relied upon the provisions contained in Section 27 of the Act of 2013 which read as under: “Cognizance of offence by courts. (1) No court shall take cognizance of any offence punishable under this Act or any rules made thereunder, save on a complaint made by the aggrieved woman or any person authorised by the Internal Committee or Local Committee in this behalf. (2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act”. (3) Every offence under this Act shall be non-cognizable”. 8. From a perusal of the aforequoted provisions, it is clear that the cognizance of an offence punishable under the Act of 2013 by a Court is barred, unless a complaint is made by the aggrieved woman or by any person authorized by the Internal Committee or Local Committee constituted under the provisions of the said Act. Section 26 of the aforesaid Act is the only provision which defines the offences under the said Act and it lay down penalty for non-compliance with the provisions of the Act. It reads as under: “Penalty for non-compliance with provisions of Act. (1) Where the employer fails to— (a) constitute an Internal Committee under sub-section (1) of section 4; (b) take action under sections 13, 14 and 22; and (c) contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder, he shall be punishable with fine which may extend to fifty thousand rupees. (2) If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to— (i) twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence: Provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment; (ii) cancellation, of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity”. 9. 9. There is no other provision except the afore quoted provisions in the Act of 2013 which defines or provides penalty in respect of any other acts or omissions so as to constitute offences under the said Act. Although, sexual harassment is defined in Section 3 of Act of 2013, yet subjecting a woman to sexual harassment is not an offence under the provisions of the said Act. 10. As per the Scheme of the Act of 2013, it has been made incumbent upon every employer of a workplace to ensure that the women are protected against sexual harassment at workplace. In this regard, a duty has been cast upon the employer of a workplace to put in place a mechanism or a forum to redress the complaints of sexual harassment and to take all other necessary steps to prevent sexual harassment at workplace. Chapter II of the Act of 2013 deals with constitution of International Complaints Committee, whereas Chapter III of the Act provides for constitution of Local Complainants Committee. Chapter IV of the Act lays down the mechanism of making complaints of sexual harassment at workplace to the Internal Committee or the Local Committee. Chapter V of the Act provides guidelines for holding an enquiry into the complainants by the Internal Committee or the Local Committee as the case may be. Chapter VI of the Act lays down duties of the employer, whereas Chapter VII contains miscellaneous provisions including Section 26 which provides for penalty for non-compliance with the provisions of the Act. 11. The only offence which is punishable under the Act of 2013 is non-compliance with the provisions of the said Act. In fact, sexual harassment by itself is not an offence under the provisions of the Act, but, Section 19 of the Act casts certain duties upon the employer and its clauses (g) and (h) deal with a situation where a duty is cast upon the employer to cause to initiate an action or to assist an aggrieved woman in initiating action under the provisions of the Penal Code. For facility of reference, Section 19 of the Act is reproduced hereunder: “19. For facility of reference, Section 19 of the Act is reproduced hereunder: “19. Duties of employer.— Every employer shall— (a) provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace; (b) display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4; (c) organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed; (d) provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry; (e) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be; (f) make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint made under sub-section (1) of section 9; (g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force; (h) cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place; (i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct; (j) monitor the timely submission of reports by the Internal Committee” 12. From a perusal of the aforequoted provisions, it is clear that the provisions of the Act of 2013 cast a duty upon the employer to create facilities and to assist the Internal or Local Committee in the matters relating to enquiry of a complaint of sexual harassment against woman at workplace and to treat the sexual harassment as a misconduct under the service rules and initiate action for such misconduct. Further, it appears that, while sexual harassment of a woman at work place by itself may not be an offence under the provisions of the Act of 2013, (the same being an offence under the Penal Code), but a duty is cast upon the employer to assist the victim in filing a complaint or cause to initiate an action under the provisions of the Penal Code against the perpetrator, if he is not an employee. From this, it is abundantly clear that sexual harassment of a woman at workplace is not an offence under the provisions of the Act of 2013,but, if the employer does not assist the aggrieved woman in filing a complaint under the Penal Code, it may amount to an offence against the employer under the provisions of 2013 Act. 13. Section 27 of the Act of 2013, which relates to cognizance of an offence by Courts, has reference to the offences which are punishable under Section 26 of the Act of 2013 and not to the offences punishable under the Penal Code. Therefore, the pre-conditions for taking cognizance of the offences by the Courts as contained in Section 27 of the Act of 2013 are applicable only to the complaints made under Section 26 of the Act of 2013 and not to the criminal prosecutions initiated in respect of offences under the Penal Code. The offences defined under Section 26 of the Act of 2013 as per Section 27(3) of the Act of 2013 are non-cognizable, whereas the offences of sexual harassment as defined under Section 354 to 357 of RPC are all cognizable offences and their cognizance can be taken by a Court in accordance with the provisions contained in the Criminal Procedure Code. Section 27 of the Act of 2013 has no applicability at all to such matters. 14. Adverting to the facts of the instant case, the husband of the victim has directly initiated criminal proceedings against the petitioner by lodging complaint with the police against him on the basis of which FIR for offence under Section 354A has been registered. The victim, it seems, has not initiated any action in accordance with the provisions contained in the Act of 2013. The victim, it seems, has not initiated any action in accordance with the provisions contained in the Act of 2013. Even if she would have done so, it was the duty of her employer to assist her in initiating criminal prosecution against the petitioner in terms of the provisions under the Penal Code after getting the matter enquired into by the Internal Complaints Committee or the Local Complaints Committee. There is no bar to a victim to approach the police directly without availing remedy available under the Act of 2013. Section 28 of the Act of 2013 makes it very clear that the provisions of the Act of 2013 are in addition to and not in derogation of any other law. 15. The offence alleged to have been committed against the victim in the instant case is not the one as defined under the provisions of the Act of 2013, as such, the procedure prescribed in Section 27 of the Act of 2013 is not applicable to her case. The contention of learned counsel for the petitioner in this regard is, therefore, found to be without any merit. 16. For the foregoing reasons, the present petition is found to be without any merit and the same along with the connected application is dismissed. Interim directions shall stand vacated.