In a recent decision, the Delhi High Court nullified Sexual Harassment FIRs after invoking its constitutional authority under Article 226 (POSH ACT)

Recently, the Delhi High Court dismissed the FIR filed against two employees of a multinational company who were accused of sexually harassing a female intern. The court based its decision on the findings of the company's internal complaints committee (ICC), which thoroughly investigated the matter and completely cleared the two men. The complaint against the accused employees was related to the intern's experience of sexual harassment and unprofessional conduct during her tenure in the company's legal department.

According to the accusations, the accused individuals engaged in lewd gestures and made inappropriate remarks about the intern's appearance while allegedly staring at her in a sexually offensive manner. However, these allegations lacked specific details or specifications and were more general in nature.

Background

?In the complaint, it was stated by the woman employee that she is a lawyer by profession and worked as a trainee at the head office of?the company. She was sexually harassed by accused employees from the Legal department itself. The accused have been involved in harassing other?trainees who were previously part of the company sexually as well as work-related harassment, but their acts have been covered up repeatedly by the superior officers without taking any action against them.

?Initially, the woman employee lodged an oral complaint with the Department Manager, but no action was taken thereafter. She took up the matter with the division head, but the Division Head made it clear to the employee that the management would not take any action against their permanent employees, and the employee's complaint was not referred to the Sexual Harassment Committee.

?Later, after passing a few months, some unknown person started chasing the woman, feeling apprehended. about her life and no action on the part of the company, the female employee decided to lodge one police complaint, and an FIR under Sections 354A and 506 of the IPC was registered. The company received the complaint in the form of an FIR, and following the complaint, the company constituted the Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

?Thereafter, a detailed and exhaustive inquiry was conducted. The Internal Complaints Committee has categorically examined the sexual harassment allegations made in the FIR and thereafter vide Final Report submitted by the committee. Subsequently, the female employee who filed the complaint later informed the committee in writing that she did not want to pursue the matter, yet the ICC carried out its investigation and issued its final report.

?The Internal Complaints Committee cleared the accused employees. The female employee also made the decision not to take part in the ICC proceedings throughout the investigation. The legal issue which requires judicial consideration and assessment is whether after exoneration the named accused are still liable to face prosecution arising out of the present FIR.?

For the decision, the court relied on:

?Ashoo Surendranath Tewari V CBI & another (2020) 9 SCC 636 that the standard of proof in a departmental proceeding is based on the preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond a reasonable doubt. The Supreme Court referred P.S. Rajya V State of Bihar, (1996) 9 SCC 1 wherein the question before the Court was as under: -

?3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission.

?It was held as under: -

• ?At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. (Para 17)
• Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3-1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs. (Para 23)

The Supreme Court in Ashoo Surender Nath Tewari also referred Radheshyam Kejriwal V State of West Bengal and another, (2011) 3 SCC 581 wherein it was held as under: -

• We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B.N. Kashyap AIR 1945 Lah 23] the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage of the said judgment: (AIR p. 27) (Para 2.6)

?"... I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined."

?We do not have the slightest hesitation in accepting the broad submission of Mr Malhotra that the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay a penalty in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of the evidence of a little higher degree whereas in a criminal case, the entire burden to prove beyond all reasonable doubt lies on the prosecution. (para 29)

?It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case. (para 31)

?The Supreme Court after referring to various judgments culled out the ratio of those decisions in paragraph 38 as under:-

?The ratio which can be culled out from these decisions can broadly be stated as follows:

1. ?Adjudication proceedings and criminal prosecution can be launched simultaneously;
2. Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
3. ?Adjudication proceedings and criminal proceedings are independent in nature to each other;
4. The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
5. Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
6. The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
7. ?In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.

?Therefore, the yardstick would be to judge as to whether the?allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court.

?Conclusion

?Can an FIR against an accused person still be continued if the ICC issues a finding on the merits exonerating them? was the issue before the court? The court stated that the ICC was established based on the FIR and that testimonies made by the woman, the defendant, and at least 20 other witnesses during the investigation were recorded "in camera" (privately). During the investigation, the woman then informed the committee in writing that she had decided not to pursue the case. The high court remarked that, notwithstanding this, the ICC carried out the investigation and issued its final report on merits, noting that the woman did not present herself for cross-examination for "reasons best known to her."

?The high court observed. If the consequential proceedings arising out of FIR are allowed to be continued, it will be a misuse of power and an exercise in futility. In view of the above discussions, FIR registration is quashed along with consequential proceedings including judicial proceedings. the court held.

#poshawareness #posh #poshact