Underlining that “courts must remain alive to their duty to treat victims sensitively in cases alleging all forms of sexual harassment and sexual assault”, the Supreme Court in a recent order directed the Judicial Magistrate First Class (JMFC) in Gwalior, to order a police investigation into a sexual harassment complaint lodged by a woman employee of the Lakshmibai National Institute of Physical Education against a former vice chancellor of the institution.
A Bench of Justices D Y Chandrachud and J B Pardiwala termed police’s failure to register an FIR on the basis of the woman’s complaint as “most unfortunate”. It also disagreed with the conclusion of the Madhya Pradesh High Court that the magistrate was not under any obligation to direct police to register an FIR as the expression used in the relevant provisions of the law was “may”.
“It is true that the use of the word “may” implies that the Magistrate has discretion in directing the police to investigate or proceeding with the case as a complaint case. But this discretion cannot be exercised arbitrarily and must be guided by judicial reasoning,” the Bench said, directing that the probe must be supervised by a woman officer not below the rank of superintendent of police to be nominated by the DIG of the zone concerned.
The Supreme Court also issued important guidelines to be followed by trial courts while dealing with such cases.
The Bench said, “It is the duty and responsibility of trial courts to deal with the aggrieved persons before them in an appropriate manner by… allowing proceedings to be conducted in camera, where appropriate…, 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… (and) completing cross-examination in one sitting, as far as possible.”
The woman had alleged that in March 2019, the then vice chancellor “touched her inappropriately at the institute, upon which she disengaged herself and shouted at him”. She subsequently lodged complaints with the local police station as well as with an SP. As no action was forthcoming, she then moved the JMFC, which sought a status report from the police. The report said the occurrence of any offence was not found.