POSH Act | Serious Isolated Incidents of Rape or Continuous Molestation & Harassment Classified as 'Continuing Misconduct' Until Situation Is Redressed: Madras HC

The Madras High Court has observed that in cases of serious isolated instances such as rape or continuous molestation or harassment cause grave mental trauma and stress to the victim, the same would be considered a 'continuing misconduct' every day until the situation is redressed or brought to the notice of the appropriate authority.

In that context, the Bench of Justice D Bharatha Chakravarthy refused to quash the ICC report, and observed that, "The instant case is not an isolated incident of misconduct such as passing lewd remarks or inappropriate touching etc. In such a solitary instance, the victims cannot be permitted to withhold and exercise their right of remedy to their wish and time, thereby preventing the delinquent employee from having a fair and impartial hearing to be in a position to defend himself effectively. Whereas in cases of serious allegations such as rape or continuous molestation or harassment, the same would be a continuing misconduct and every day until the situation is redressed or brought to the notice of the appropriate authority would give rise to a fresh cause of action. The purpose of the provision of Limitation in Section 9 has to be understood in this context."

The Court added that, "when the offence complained of is a serious one having the effect of causing grave mental trauma and stress to the victim, pushing her to a dilemma not to reveal or complain due to the fear of secondary and tertiary victimization, on the other hand, she is also unable to withstand, swallow or suppress the same, then that state of the victim fits the definition of undergoing continuous sexual harassment. So long she undergoes such a phenomenon, the same is directly attributable only to the perpetrator and therefore would amount to a continuing offence."

The Court was hearing a petition from a superintendent in the district police office in Nilgiris, Tamil Nadu. He challenged the Internal Complaints Committee (ICC) report regarding a rape complaint filed against him by a female colleague.

He argued that the alleged rape occurred in April 2018, but the woman only lodged a formal complaint with the local police in December 2022, which was then forwarded to their employer. As a result, the ICC enquiry began over four years after the incident. He pointed out that, according to the PoSH Act, a complainant must file a written complaint with either the internal or local complaints committee within three to six months of the incident. He argued that the ICC proceedings and the enquiry report were invalid due to this statute of limitation.

The High Court rejected the submission that merely because the incident happened in the year 2018, the complaint could not be entertained by the local committee in the year 2022.

However, the Court noted that the petitioner had not been given a chance to cross-examine all witnesses. Consequently, the Court directed that the ICC, which had already concluded its enquiry, be reconstituted with the same composition as far as possible. The reconstituted committee was instructed to address the petitioner's grievances regarding the cross-examination of witnesses.

Cause Title: R Mohanakrishnan vs The Deputy Inspector General of Police & Ors.

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