IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7492 OF 2016 c/w.
CRIMINAL PETITION NO.7493 OF 2016 IN CRIMINAL PETITION NO.7492 OF 2016 BETWEEN:
USHA PADMINI D/O. SRI. C. VENKATRAMAIAH, AGED ABOUT 48 YEARS, RESIDING AT NO.53, 13TH MAIN, 18TH CROSS, SECTOR-7, HSR LAYOUT, BANGALORE-560 102. ... PETITIONER (BY SRI: V.SRINIVASA RAGHAVAN SENIOR COUNSEL A/W Ms. PALLAVI SMRITI, ADVOCATE AND Ms. JAYATI GOYAL, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY SAMPIGEHALLI POLICE STATION, BENGALURU DISTRICT-560 077, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-560 001.
2. MS. SMITA ARORA AGED ABOUT 39 YEARS, RESIDING AT NO. 117/103, PARAS APARTMENT, RACHENAHALLI VILLAGE, THANNISANDRA, BENGALURU CITY. ... RESPONDENTS (BY SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R1 Ms. SMITA ARORA-R2 PARTY-IN-PERSON) ---
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT DATED 22.08.2015 (ANNEXURE-A), FIR LODGED PURSUANT THERETO IN CR.NO.263/2015 (ANNEXURE-B) BEFORE THE C.M.M., BANGALORE THE CHARGESHEET CR.NO.263/2015 (ANNEXURE- C) AND THE PROCEEDINGS THERETO IN C.C.NO.30280/2015 BEFORE THE HON'BLE C.M.M., BANGALORE AS AGAINST THE PETITIONER.
IN CRIMINAL PETITION NO.7493 OF 2016 BETWEEN:
SUMANTA BANERJEE S/O DHRUBA BANERJEE AGED ABOUT 39 YEARS RESIDING AT FLAT NO.C1702 NCC URBAN IVORY HEIGHTS SERVICE RD OUTER RING ROAD SATHYA LAYOUT B NARAYANAPURA MAHADEVAPURA BANGALORE-560 016 ... PETITIONER (BY SRI: V.SRINIVASA RAGHAVAN SENIOR COUNSEL A/W Ms. PALLAVI SMRITI, ADVOCATE AND Ms. JAYATI GOYAL, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY SAMPIGEHALLI POLICE STATION BENGALURU DISTRICT-560 077 REPRESENTED BY SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001 2. MS SMITA ARORA AGED ABOUT 37 YEARS RESIDING AT NO.117/103 PARAS APARTMENT RACHENAHALLI VILLAGE THANNISANDRA BENGALURU CITY-560 07 ... RESPONDENTS (BY SRI; I.S.PRAMOD CHANDRA, SPP-II FOR R1 Ms. SMITA ARORA-R2 PARTY-IN-PERSON) ---
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT DATED 22.09.2015 (ANNEXURE-A) FIR LODGED PURSUANT THERETO IN CRIME NO.263/2015 (ANNEXURE-B) BEFORE THE HON'BLE C.M.M., BANGALORE, THE CHARGESHEET (ANNEXURE-C) AND THE PROCEEDINGS THERETO IN C.C.NO.30280/2015 BEFORE THE C.M.M., BANGALORE AS AGAINST THE PETR.
THESE CRIMINAL PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Accused Nos.1 and 2 in C.C.No.30280/2015 on the file of the Chief Metropolitan Magistrate at Bengaluru have sought to quash the said proceedings registered against them for the offences punishable under sections 354A, 504 read with section 34 of Indian Penal Code.
2. Heard learned Senior Counsel appearing for the petitioners, respondent No.2 - party-in-person and learned SPP- II on behalf of respondent No.1 – State in both the petitions.
3. The respondent No.2 was working as a Technical Specialist in Alcatel-Lucent Technologies India Ltd., since 16.02.2015. Accused No.1 Sri.Sumanta Banerjee was the Technical Manager and accused No.2 Smt.Usha Padmini was the Director of the said Company. Accused No.1 was the reporting authority of respondent No.2.
4(i) On 20.07.2015, respondent No.2 sent an email to one Priya Chakrabarti, the H.R. Manager, complaining of certain harassment at the work place. The said email reads as under:
“As you can see from emails, this is a severe work level harassment.
a) Sexual harassment – I would put the charges on both Usha and Sumanta together.
You can see Sumanta’s sitting position, with legs open, standing close to you when you are sitting (in lab), position is very uncomfortable, can lead to accident.
b) Work Level Harassment – Emails are flowing, latest one is also attached alongwith. I would like to add also Usha to this. Both are harassing. She is there to mediate, however, both of them are already on the same page to harass me.
(ii) This email was replied by Priya Chakrabarti on 21.07.2015 as under:-
“To take this formal complaint ahead, I would need some more details from you:
- Specific evidences of incidents. If you can share the dates or time of these it will strengthen the case further.
- Any witnesses. If you know of people who would have been present during these incidents or if you know of people who are aware of such issues.
Again, thanks for putting it across and the above will help the case. I will let you know the further steps on receiving your detailed email.
Feel free to reach out if you face issues around sexual harassment. Although I am on leave but you can call or email me any point of time.
(iii) Respondent No.2 replied on the same day in the evening as herein below:
“I can’t cite so much, however, I saw couple of times, Sumanta’s standing posture.
This has been seen on two occasions. Recently, it happened in the lab, it could have been a minor accident, possibly last week, some team members around. In general, he is troubling – which itself translates into work level and sexual harassment.
I case, I can help you with some other information, kindly let me know.”
5. In view of the alleged sexual harassment at the work place, an Internal Complaints Committee (“ICC” for short) was constituted to look into the said allegations. The Committee called for the response of the second respondent as well as the accused persons and afforded an opportunity to adduce oral and documentary evidence and on consideration of the same, the ICC by its report dated 02.09.2015, rendered the following findings.
Findings of Internal Committee on allegations of Sexual Harassment against Sumanta Banerjee, Respondent No.2 The complaint (Ex.IC-1) mentions the following acts or behavior of sexual harassment against Respondent No.2:
1) You can see Sumanta’s sitting position, with legs open, standing close to you when you are sitting (in lab), position is very uncomfortable, can lead to accident.
2) I can’t cite so much. I saw couple of times, Sumanta’s standing posture. This has been seen on two occasions. Recently, it happened in the lab. It could have been a minor accident, possibly last week, some team members were around. In general, he is troubling-which itself translates into work level and sexual harassment.
As regards the allegation that “Sumanta’s sitting position, with legs open, standing close to you when your are sitting (in lab), position is very uncomfortable, can lead to accident”, Respondent No.2 has given the minute details of the sitting arrangement in the Company’s Office of himself and his entire team. He has stated that each tester sits in individual cubicle facing the enclosed part. He has further explained that like other test and verification team in ST also the team members would reach out to him for any guidance and discussing any issue. For that they would be walking to his cubicle and discussing with him. He would be facing the laptop and the enclosed part of the cubicle and on their presence turn towards them and talk to them about the issue. Because of small space he would be sitting in the natural straight position of his legs. All ST team members and other team members who visit his cubicle would see him in the same fashion. On the other hand, the Complainant has confirmed that she was nowhere close to Respondent No.2 when she saw him sitting with his legs open but Respondent No.2 was sitting a few cubicles away and she saw him from a distance. The Internal Committee is inclined to accept the version of Respondent No.2. It is logical and natural that in the given scenario, there is every possibility that a person may attain this posture while he turns sideward in his chair to face the visitor in the cubicle and it is not to be faulted with any indecent behavior. This act or posture cannot be termed as sexual harassment to the Complainant. Even otherwise, the said act on the part of Respondent No.2 in no way, either directly or by implication, attributed to the Complainant as the Complainant only had the chance to see Respondent No.2 in that position from a distance. In view of the above discussion, the aforesaid allegation against Respondent No.2 is not established.
As regards objection on Sumanta’s standing posture, the complainant has alleged that he was standing close to her and this has happened twice. Respondent No.2 has explained the ST team activities in the Office. He has stated that for regular tracking of the deliverables the daily meeting was formulated for the entire ST team. Ms.Smita was part of the 6 member daily meeting team. And it would get conducted in an informal way with all the meeting participants standing in a circle and updating other participants. Though the allegations are not specific, it appears to be that during these meetings or interactions by Respondent No.2 with his team members, Respondent No.2 might have been standing next to the complainant. This would not per se be termed as sexual harassment by Respondent No.2 notably when the complainant has confirmed that Sumanta moved away after her request to him and that there was never any indecent gesture or hint on the part of Sumanta. The complainant has also said that this could be/could lead to a minor accident. Under these circumstances, the Internal Committee does not find any act of sexual harassment on the part of Respondent No.2.
The other instances/circumstances of harassment alleged against Respondent No.2 are work and employment related. The Internal Committee does not find these to be in any way connected with any act or behavior of sexual harassment, as there is none, and these do not amount to sexual harassment as provided under sub-section (2) of Section 3 of the Act.
6. Here itself, it may be relevant to refer to the portion of the cross-examination of second respondent which is culled out in the said report and the same is extracted here below:
Cross-examination of the Complainant by Respondent No.1 is reproduced hereunder;
“It is correct that I doubt yours and Sumanta’s competence as Technical/People Managers. I can’t definitely say about others as I had limited interactions with other Technical Managers. It is correct that you have not asked for any sexual favours or ever physically touched. The way you were talking to me and interacting on my fitment issue, it was very unpleasant but I would not call it as Sexual Harassment. How I was sexually harassed, the details are mentioned in my rejoinder Ex- IC-13 at Point b, c and d and my documents which according to me is Sexual harassment. It is correct that you have never said about my dressing, it is me who brought it up. I have written against you to the higher authorities because I think you are responsible for my condition, this is my judgment and I want investigation into it. It is incorrect that I have made false allegations of sexual harassment against you. I have been doing the assigned jobs but they are not upto my level. It is incorrect that you had never asked me to talk to anybody in the team. You have tried to humiliate and snub me down by talking about my not being able to perform my assigned work.”
Cross-examination of the Complainant by Respondent No.2 is reproduced hereunder;
“I do not find Sumanta as Technically competent manager as I have mentioned in my documents. It is correct that I think I have not been given work by you of my level. It is incorrect that my designation is proper. It should be Senior Tech. Specialist. I can’t say that my salary is proper or not. I think I deserve more as my performance is very good. In this company Alcatel Lucent the behavior of Managers, competence, attitude of the Managers towards me is not proper as I had asked for better fitment. For these reasons I wish to move to Nokia and do not want to remain here. It is incorrect that you have not sexually harassed me, I have written my complaint how you have sexually harassed me. There is no physical contact with me. As per my Email dated 20th July 2015 to Priya he was trying to stand close in that standing position/posture accident could happen. However he has not touched me. It happened twice. Apart from this I have no other complaint against you.”
7. Respondent No.2 challenged the said report by filing a writ petition before this court in W.P.No.23713/2016. The said writ petition was dismissed mainly on the ground that the writ petition was not maintainable and the proper remedy for respondent No.2 was to challenge the order of termination dated 08.09.2015 and the report of ICC dated 02.09.2015 before appropriate Forum. The second respondent carried the matter in appeal before the Hon’ble Supreme Court of India in S.L.P. No.21156/2017 and the said S.L.P. was dismissed at the admission stage. Respondent No.2 submits that she has already approached the Labour Court for appropriate reliefs.
8. That being the situation, on 22.09.2015, the second respondent lodged a written report before the Inspector of Police, Sampigehalli Police Station. It is a short complaint and it reads as under:
“Dear Sir, I was little sick, when I went / undergone sexual harassment by Sumanta Banerjee and Usha Padmini. It is also work level harassment. I do good work and hence they disturbed me from my previous organization.
Recently, they conducted ICC enquiry in not a good way and I am not happy with the report. I told the HR to take guidance from NCW. HR terminated me. NCW calls it sexual harassment and accordingly termination should be cancelled.
I got more sick because of termination letter & I got severe vertigo.
Accordingly, office HR should help me. I need help for following:
a) Termination should be reverted and I should continue working in short term. Then I can move into another job in 3-6 months.
b) Accordingly, as I get an offer, I will resign, otherwise my career is affected.
c) If needed, one more enquiry can be conducted along with NCW guidance.
9. The investigation was taken up and on completing the investigation, charge-sheet was laid against both the petitioners under sections 354A, 504 read with section 34 of Indian Penal Code.
10. Learned Senior counsel appearing for the petitioners (accused Nos.1 and 2) in both the petitions, at the outset submitted that accused No.2 being a woman, the charge against her under section 354A of Indian Penal Code cannot stand on the face of it. Further he submitted that even with regard to accused No.1, the allegations made against him do not constitute either an offence under section 354A or section 504 read with section 34 of Indian Penal Code. Learned counsel has emphasized that at the earliest instance, the allegations levelled against accused No.1 apart from being vague, were confined to the allegation that the sitting position of accused No.1 with legs open and standing close to respondent No.2 when she was sitting in lab, was very uncomfortable to the second respondent. Learned counsel would submit that the very same charges were enquired into by the ICC, and in the course of the inquiry, the respondent No.2 has virtually conceded that, no such occurrence had taken place. Further he submits that neither the email sent by second respondent at the earliest instance nor the written complaint lodged by her after disposal of the complaint by the ICC disclose the commission of the offence under section 504 of Indian Penal Code. Under the said circumstances, there was no basis whatsoever for the investigating agency to lay a charge- sheet against the petitioners for the above offences nor the learned Magistrate had any material before him to take cognizance of the alleged offence. On these grounds, he seeks to quash the impugned proceedings.
11. In support of his arguments, learned Senior Counsel has placed reliance on the decision of the Hon’ble Supreme Court of India in RADHESHYAM KEJRIWAL vs. STATE OF WEST BENGAL & Others, (2011) 3 SCC 581 and with reference to para 19 thereof, would submit that the petitioners having been exonerated on merits in the inquiry held by the ICC, criminal prosecution on the same set of facts and charges cannot be allowed to continue as the standard of proof that is contemplated in an enquiry by ICC is lesser than the standard of proof contemplated in a criminal trial.
12. Disputing the submissions, respondent No.2 - party-in-person has taken me through the exhaustive material produced before the Court and would submit that, from the day of joining the Company, she was subjected to unbearable harassment which amounts to sexual harassment as well as harassment at the work place. According to her she has narrated the specific instances of harassment in the email as well as in the complaint lodged by her before the police and in the statement given before the police and before the learned Magistrate under section 164 Cr.P.C., wherein she has reiterated these allegations and further the Investigating Agency has also examined independent witnesses. Thus, she contends that there was sufficient material to take cognizance and hence, there is no ground to quash the proceedings initiated against the petitioners. She further submitted that misbehaving with a woman at the work place itself amounts to a serious act of abuse of power and harassment and therefore, the material collected against the petitioners prima facie constitute the offences under section 354A and section 504 of Indian Penal Code.
13. Considered the submissions and examined the rival contentions urged by the parties.
14. It is a matter of record that since respondent No.2 had levelled serious allegations of sexual harassment at work place, as required under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, an Internal Complaints Committee was constituted and an enquiry was taken up against the petitioners. The report of the ICC is placed before this court. I have already extracted the relevant portion of cross- examination of the complainant before the ICC. It is worthwhile to note that eventhough in her complaint she had made serious allegations of sexual harassment and work place harassment, but during the enquiry, she has virtually admitted the fact that no such incident has taken place. Undisputedly, no statutory appeal or any proceedings are pending against the said report. As such, the report submitted by the ICC has reached finality. It is only after the conclusion of the said enquiry, the respondent No.2 has come up with the allegations of the offences punishable under the provisions of Indian Penal Code. Therefore, the immediate question that arises for consideration is, In the wake of findings recorded by the Internal Complaints Committee, whether the prosecution of the petitioners for the alleged sexual harassment could be continued on the same set of facts and evidence?
15. The Hon’ble Supreme Court of India in the case of in RADHESHYAM KEJRIWAL vs. STATE OF WEST BENGAL & Others, (2011) 3 SCC 581 has considered the law on the point and in para 19 thereof, has held as under:
“(vi) The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue underlying principle being the higher standard of proof in criminal cases.
In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be an abuse of the process of the court.”
16. From the facts narrated above, it is clear that an enquiry was conducted by the ICC in respect of the very same allegations which are now made the basis for criminal prosecution of the petitioners for the alleged offence under Section 354A of IPC. Even the material relied on by the ICC as well as the Investigating Agency is one and the same. Eventhough respondent No.2 – party-in-person has sought to justify the criminal action on the ground that the statement given by her under section 164 of Cr.P.C. prima facie makes out the ingredients of the offences charged against the petitioner, I have perused the said statement. Even in the said statement, except reiterating the very same allegations made before the ICC, she has not produced any additional material to substantiate the said charges. On the other hand, in her statement under section 164 of Cr.P.C., she has stated thus:
“During the Lab hours I called Sumantha for some help two times and on both occasions he tried making sexual advances towards me and he tried to touch his manhood on my elbow. As I shouted and asked him to move back, he moved back. I complained this to HR in writing. After this Usha Padmini started misbehaving even more. I suspect that both Usha and Sumantha are physical with each other.”
17. This portion of her 164 statement is nothing but an improvement. As already stated above, she has maintained all throughout in her complaint as well as before the ICC that there was no physical contact whatsoever by accused No.1. According to her, she was apprehending some accident on account of the manner in which the accused No.1 was sitting spreading his legs. The allegations of sexual advances and attempt to touch his ‘manhood’ on the respondent No.2 are obviously an afterthought and an improvement from the earlier version. These allegations appear to have been made with the sinister motive to foist criminal charges against accused No.1. But ICC having already inquired into the very same allegations and having found no truth or substance in the said allegations, in my view, the prosecution of the petitioners for the very same violation on the very same set of evidence would be an unjust and an abuse of process of Court. Under the said circumstances, in order to secure the ends of justice, it is necessary and expedient to quash the proceedings initiated against the petitioners.
As a result, the petitions are allowed. The proceedings initiated against the petitioners for the offences punishable under sections 354A, 504 read with section 34 of Indian Penal Code in C.C.No.30280/2015 are hereby quashed.
Sd/- JUDGE Bss