Shocking That Majority Of ICC Reports In PoSH Cases Favour Institutions; Such Reports Can’t Supersede Prosecution Records: Kerala HC
The Kerala High Court has expressed its concern over the shocking fact that majority of the ICC reports in PoSH cases are of unilateral and biased nature which favour the majority of the institutions.
The Court was considering a case where a College Principal was accused of sexual harassment by a woman staffer. The Criminal Miscellaneous Case had been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) by the accused in a Criminal Case seeking to quash FIR, final report and the further proceedings on the files of the Judicial First Class Magistrate Court against the petitioner.
The Single-Judge Bench of Justice A. Badharudeen held, “It is shocking to note that majority of the ICC reports, I came across, are of unilateral and biased nature, favoring the majority of the institutions, and as such the credence of the ICC report is a matter subject to thorough check and scrutiny to believe and act upon.
Advocate Sreekanth S . Nair represented the petitioner while Public Prosecutor M P Prasanth represented the Respondent.
It was the case of the prosecution that the accused herein, who is the head & Principal of one S.N College made sexually coloured remarks and demanded sexual favor from the de-facto complainant. It was alleged that he also asked the de-facto complainant to be obedient to him so that issuance of memo, transfer and suspension against the de-facto complainant could be avoided. Further he used to make defamatory allegations against her during staff meetings and PTA meetings. He allegedly also shouted at her in one of the Staff Meetings. This was the basis on which prosecution alleged commission of offences punishable under Sections 354-A, 354-D and 509 of the Indian Penal Code (IPC) and Section 119(A) of the Kerala Police Act (K.P Act).
While canvassing quashing of the entire proceedings, the counsel for the petitioner gave heavy reliance on the report of enquiry conducted by the Internal Complaints Committee (ICC) where it was found that the allegations were false. On the contrary, the Public Prosecutor submitted that the statement of the victim was never recorded in the ICC report and a unilateral finding was entered into. It was also pointed out that going by the statement of the victim as well as the witnesses, who supported the prosecution allegations, the offences were made out, prima facie, and in such a case quashment could not be considered.
The Bench thoroughly went through the allegations made by the complainant as well as the repeated complaints made by her at earlier occasions. It was also noticed that many Professors of the College supported the complainant’s case. “Thus in the instant case the offences alleged by the prosecution are well made out, prima facie”, the Bench said.
One of the most important issues that arose for consideration was whether entire criminal proceedings can be quashed by invoking power under Section 528 of BNSS when Internal Complaint Committee (ICC) report in terms of `the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) runs contrary to prosecution case.
Referring to the PoSH Act wherein various measures have been incorporated to deal with harassment of women at work place, the Bench observed that even the ICC can recommend measures under the PoSH Act including launching of criminal prosecution. The Bench explained that the aggrieved person when directly makes a complaint to the police, police registers crime, conducts investigation and files final report finding commission of the offences alleged, the ICC report or its finding against the police report has no bearing on the prosecution case.
“Thus it is held that the report of the ICC is not the final word in so far as the allegations otherwise made before the police from the work place and for which crime was registered and investigated leading to final report alleging commission of the above offences”, it held.
According to the High Court, the ICC gave clean chit to the accused by putting some vague questions and obtaining answers from them and without recording the statement of the victim, who was really aggrieved. “I do not think that ICC report, prepared without even recording the statement of the victim, could supersede the prosecution records to disbelieve the same”, the Bench added.
Thus, dismissing the Criminal Miscellaneous Case, the Bench said, “It is well settled that quashment of a criminal case can be considered only when the prosecution allegations do not suggest, prima facie, case. The prosecution case when made out from the statements of the victim and the witnesses, prima facie, quashment of the same would necessarily fail.”
Cause Title: Amjith v. State Of Kerala [Neutral Citation:2024:KER:84389]
Appearance:
Petitioner: Advocates Sreekanth S . Nair & Sandeep P Johnson
Respondent: Public Prosecutor M P Prasanth