In the case of Sapana Korde Nee Ketaki A. Ghodinde v. The State of Maharashtra and Ors., the Bombay High Court on January 9, 2019 that filing a sexual harassment complaint against a person belonging to a Scheduled Caste (“SC”) or Scheduled Tribe (“ST”) does not constitute an atrocity under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“Atrocities Act”) unless such complaint is prima facie proved to be false, malicious, or vexatious.
The present application before the Bombay High Court was filed challenging the order rejecting the anticipatory bail application moved by Sapana Korde Nee Ketaki A. Ghodinde (“Appellant”) working with the College of Engineering, Pune. The facts that led to this are that Bhaskar Karbhari Gaikwad (“Respondent”), who was working as the storekeeper with the same college, had previously lodged FIRs against Subhash Mahajan, BK Gaikwad, and the Appellant on November 2, 2017 for offences under the Atrocities Act. The FIR stated that the appellant had previously lodged a false complaint against the respondent on May 6, 2017 by email alleging harassment (“Harassment Complaint”), pursuant to which an inquiry was conducted by the Internal Committee (“IC”). The IC unanimously concluded that the complaint lodged by the appellant was not reflecting sexual harassment, but rather misconduct and misbehaviour of the subordinate during the course of employment. IC further concluded that, as the complaint is not in respect of sexual harassment, it needs to be dealt with by the appropriate disciplinary committee. Accordingly, the respondent was informed. This triggered the respondent to file the abovementioned FIR. The appellant applied for anticipatory bail on this FIR, which the lower court rejected because she had filed the harassment complaint.
The learned counsel for the appellant argued that she had not mentioned in her complaint that the complaint was for sexual harassment. The learned counsel for the respondent argued that the respondent had repeatedly insisted on a thorough inquiry into the matter, but unfortunately, no investigation was done by the IC, no documents were supplied to him, and the complaint was forwarded for taking administrative action against him. Thus, he argued that this constituted harassment of the respondent, who belongs to SC. The respondent’s argument was that the appellant had committed offences punishable under Sections 3 (1) (p), 3 (1) (q), and 3 (2) (vii) of the Atrocities Act.
Before moving forward, let’s look at what these provisions entail: Section 3 (1) (p) and (q) state that “whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe or gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Case or a Scheduled Tribe; shall be punished with imprisonment.” Section 3(2)(vii) of the Atrocities Act provides for the punishment that would be inflicted on a person if the offense under Section 3(1)(p) and (q) is proved.
As per the Atrocities Act, therefore, for making out offences under the abovementioned provisions, one is required to make out a prima facie case of instituting false, malicious, or vexatious legal proceedings against a member of SC or ST (emphasis supplied). In this context, the court in this case had to see whether the harassment complaint filed by the appellant was false or not. For this, the Court noted that the appellant had filed a harassment complaint titled “Improper behavior and abusive language of the departmental storekeeper,” which was forwarded to the Women Grievance Committee for inquiry and report.
On this point, the Court held that there is no pronouncement by the competent authority (i.e., the IC) that the complaint lodged by the appellant is false, malicious, or vexatious. On the contrary, the IC concluded that the complaint is not in respect of sexual harassment, but rather in respect of misbehaviour and misconduct of the subordinate with the superior. The Court also said that there is no finding by any authority that the complaint or subsequent statement of the appellant made to a public servant is false or frivolous for causing injury or annoyance to the respondent. The Court then concluded that “there is no prima facie case whatsoever against appellant/accused Sapana Korde regarding any offence under the Atrocities Act, as alleged against her.” Thus, the application for anticipatory bail was granted.
The Court then looked at the provisions of Section 3(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“POSH Act”), which enumerates certain circumstances reflecting sexual harassment at the workplace. The Court stated that the harassment complaint “ought to have been considered keeping in mind these circumstances.”
The Court noted that “Prima facie, it appears that the Committee constituted under Section 4 of the Prevention of Sexual Harassment of Women Act has not considered the provisions of Sub-Section (2) of Section 3 of the said Act, which enumerates a few circumstances reflecting sexual harassment of women at the workplace. The circumstances incorporated in Sub-Section (2) of Section 3 are lost sight of by the Committee constituted for prevention of sexual harassment of women at the workplace, i.e., the College of Engineering, Pune, while considering the complaint of appellant/accused Sapana Korde, Assistant Professor.”
PAW Comment: Please note that while the High Court has not categorically laid down whether the nature of abusive language used by the respondent in this case was sexual harassment or not, it has interpreted Section 3(2) of the POSH Act liberally and held that the IC should have considered the complaint keeping in mind the inclusive nature of this Section, thereby hinting towards the subtle nature of sexual harassment at the workplace and the finer nuances of Section 3(2). However, the Court did not order the IC to conduct a new inquiry into this complaint.