Hold In-Camera Trial In All Sexual Harassment Cases, Apart From Rape Cases; Disallow Questions On Sexual History : Supreme Court To Trial Courts
Reiterating the importance of the Courts dealing with the victims of sexual crimes in a sensitive manner, the Supreme Court has issued a slew of directions to the trial courts to avoid agony and harassment for women who file complaints of sexual harassment.The Court directed that in-camera trials should be allowed in all cases relating to sexual harassment. As per Section 327 of the Code...
Reiterating the importance of the Courts dealing with the victims of sexual crimes in a sensitive manner, the Supreme Court has issued a slew of directions to the trial courts to avoid agony and harassment for women who file complaints of sexual harassment.
The Court directed that in-camera trials should be allowed in all cases relating to sexual harassment. As per Section 327 of the Code of Criminal Procedure, in-camera trials are mandated only in rape cases. This ambit has been expanded by the Court.
Further, the Court issued directions to ensure that the cross-examination of the victim is carried out in a sensitive and respectful manner.
The bench comprising Justice D.Y. Chandrachud and Justice JB Pardiwala noted that legal proceedings tend to be more onerous for complainants of sexual assault as they are dealing with trauma and societal shame. Thus, the Courts had an important responsibility to appropriately handle such matters.
The Court ordered as follows :
It is the duty and responsibility of trial courts to deal with the aggrieved persons before them in an appropriate manner, by:
a) Allowing proceedings to be conducted in camera, when appropriate, either under Section 327 CrPC or when the case otherwise involves the aggrieved person (or other witness) testifying as to their experience of sexual harassment/violence;
b) 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;
c) 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. Also allowing cross-examination to be conducted in a manner that the counsel for the accused submits her questions to the court, who then poses them to the aggrieved woman;
d) Completing cross-examination in one sitting, as far as possible.
While underscoring the importance of courts dealing with complainants of sexual harassment and sexual assault in a sensitive manner, the court stated that–
"It is important for all courts to remain cognizant of the fact that the legal process tends to be even more onerous for complainants who are potentially dealing with trauma and societal shame due to the unwarranted stigma attached to victims of sexual harassment and assault. At this juncture, especially in cases where the police fails to address the grievance of such complainants, the Courts have an important responsibility."
The court relied upon the judgement in the case Aparna Bhat v State of Madhya Pradesh, where it was noted the criminal procedure was moulded in a manner to enable victims of sexual crimes to seek justice, in recognition of the gravity of sexual crimes and the need to handle such cases in an appropriately sensitive manner. Thus, it was the duty of the courts to facilitate the same.
Accordingly, in order to ensure that justice did not remain inaccessible, the court directed trial courts to deal with the aggrieved persons before them in an appropriate manner
In this case, the appellant, a yoga instructor alleged that the then Vice-Chancellor of the Institute touched her inappropriately at the Institute, in March 2019, upon which she disengaged herself and shouted at him. She also alleged that she had been threatened with discharge from service on having refused his demands. She lodged a complaint at the Police Station. After no action was taken, she also filed a complaint to the Superintendent of Police, not once but twice. However, no action was still taken and she moved to the Judicial Magistrate First Class under Section 156(3) of the CrPC. The JMFC directed the police to file a status report, however, the proceedings before the JMFC were delayed due to the onset of the Covid-19 pandemic.
Eventually, the JMFC came to the conclusion that, prima facie, "occurrence of the offence by the accused persons" was "shown". Nonetheless, the JMFC held that the case could not be decided without collecting evidence from the police and it did not appear just and proper to act on the case filed on behalf of the appellant under Section 156(3) CrPC. JMFC continued treating the allegations as a complaint and provided liberty to the complainant to examine witnesses under Sections 200 and 202 CrPC. This order of the JMFC was questioned by the appellant under Section 482 CrPC. However, the High Court dismissed the application on the ground that the JMFC was not under an obligation to direct the police to register the FIR and the use of the expression "may" in Section 156(3) CrPC indicated that the JMFC had the discretion to direct the complainant to examine witnesses under Sections 200 and 202 CrPC, instead of directing an investigation under Section 156(3). Accordingly, the appellant approached the Supreme Court, appealing against the High Court's order dismissing her application.
At the outset, the Supreme Court recognised that in cases alleging sexual harassment, sexual assault or any similar criminal allegation, wherein the victim has possibly already been traumatized, the Courts should not further burden the complainant and should press upon the police to investigate. The court stated that due regard must be given to the fact that it is not possible for the complainant to retrieve important evidence regarding her complaint and that it may not be possible to arrive at the truth of the matter in the absence of such evidence. This would translate to the complainant being required to prove her case without being able to bring relevant evidence on record, which would be unjust. Thus, the court held that the JMFC must have exercised jurisdiction under Section 156(3) of CrPC to direct the police to investigate.
Thus, the appeal was allowed.
Also Read - S 156(3) CrPC - Magistrate Should Order Police Investigation When Cognizable Offence Is Prima Facie Found, Especially In Sexual Offences: Supreme Court
Case Title : XYZ versus State of Madhya Pradesh
Citation : 2022 LiveLaw (SC) 676
Click here to read/download the judgment
Headnotes
Trial in cases of Sexual Harassment/Violence - The importance of courts dealing with complainants of sexual harassment and sexual assault in a sensitive manner reiterated- Guidelines: a . Allowing proceedings to be conducted in camera, where appropriate, either under Section 327 CrPC or when the case otherwise involves the aggrieved person (or other witness) testifying as to their experience of sexual harassment / violence; b. 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; c. 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. Cross-examination may also be conducted such that the counsel for the accused submits her questions to the court, who then poses them to the aggrieved woman; d. Completing cross-examination in one sitting, as far as possible. (Para 30-35)
Code of Criminal Procedure, 1973 ; Section 154 - FIR -Police officers cannot exercise any discretion when they receive a complaint which discloses the commission of a cognizable offence - Whether or not the offence complained of is made out is to be determined at the stage of investigation and / or trial. If, after conducting the investigation, the police find that no offence is made out, they may file a B Report under Section 173 CrPC. However, it is not open to them to decline to register an FIR - (Para 18)
Code of Criminal Procedure, 1973 ; Section 156(3) - 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 - Where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint but also such facts are brought to the Magistrate's notice which clearly indicate the need for police investigation, the discretion granted in Section 156(3) can only be read as it being the Magistrate's duty to order the police to investigate. In cases wherein, there is alleged to be documentary or other evidence in the physical possession of the accused or other individuals which the police would be best placed to investigate and retrieve using its powers under the CrPC, the matter ought to be sent to the police for investigation. (Para 24)
Code of Criminal Procedure, 1973 ; Section 156(3) - In cases alleging sexual harassment, sexual assault or any similar criminal allegation wherein the victim has possibly already been traumatized, the Courts should not further burden the complainant and should press upon the police to investigate. Due regard must be had to the fact that it is not possible for the complainant to retrieve important evidence regarding her complaint. (Para 25)