Justices C Hari Shankar and Om Prakash Shukla described the “omission” of the authority concerned as a strike at the heart of the constable’s right to fair trial and defence and termed it as a “serious procedural irregularity”, particularly when there was no other direct evidence or eye witnesses of the alleged incident.
“The aforesaid omission strikes at the heart of a petitioner’s opportunity to enter into effective defence and his right to fair trial and, in any case, shakes the very foundational fact alleged against the petitioner,” the court said.
The court said it was their “imperative duty” to examine all available material, evidence, witnesses etc. with utmost diligence in matters involving allegations of a sexual nature where both the accused and complainant are members of the armed forces.
“While due sensitivity to the plight of a victim of sexual harassment has to be ensured, the Court, and administrative authorities have also to be alive to the serious and irreparable ignominy that follows an unsubstantiated allegation of sexual harassment,” the order read.
Onus shifted
The court was informed that the petitioner made two requests for obtaining and examining the CCTV footage before the General Security Force Court (GSFC).
“However, no reply or justification is placed as to why such footage was not called for examination. Instead, the onus to produce and examine the CCTV footage was shifted onto the petitioner by opining that the petitioner had the opportunity to call for CCTV footage from the authority concerned in his defence but had failed to do so,” the court said.
Story continues below this ad
The court found that the authority concerned was empowered and was required to summon for CCTV footage, but they failed to perform their duty even when the state was the custodian of the said CCTV footage.
Pointing out that no justification was tendered as to why the CCTV footage was not called for examination, the court found that the state was acknowledging the constable’s right to call for examination the best available evidence but failed to perform their statutory duty.
Miscarriage of justice
Noting that the constable had served in the armed forces for the past 33 years, the court pointed out that refusing the petitioner’s right to enter a proper defence would lead to a “miscarriage of justice”, particularly considering the gravity of punishment and the significance of primary ocular evidence in the matter. It was further mentioned that the state’s conduct fell foul of the touchstone of ‘principles of fair play’.
The court ordered the constable’s reinstatement with all consequential benefits, but without back wages or other benefits for the intervening period.
Story continues below this ad
Argument
The constable’s advocate, Arjun Panwar, argued that the findings recorded against his client were wholly unsustainable and pointed out that the written complaint was submitted only after a delay of nearly five months.
On the contrary, the Central government standing counsel, Shubhra Parashar, argued that the petitioner was well within his rights to produce the so-called CCTV footage during the trial, but had failed to do so.
Background
The constable was dismissed from his service with a punishment of one year simple imprisonment in 2023 over allegedly sexually harassing his colleague, a woman officer, at the workplace.
The alleged incident took place in 2021, the constable allegedly offered the officer an unwarranted gift packet of “biryani” and spread indecent remarks about her.
Story continues below this ad
The Internal Complaints Committee (ICC) investigated the matter initially and held the constable guilty and recommended disciplinary action.
Subsequently, he was tried by the GSFC for “using criminal force to a woman intending to outrage her modesty” and acquitted on the finding that charges were not proved beyond a reasonable doubt.
However, the confining authority directed the GSFC to reconvene and record additional evidence and then it reversed its earlier findings, sentencing him with simple imprisonment for one year and dismissal from service.
The petitioner moved the high court in 2024, which quashed the findings of the GSFC on December 4.
