Sexual harassment: setting legal precedents
(left) Look out notice pasted in Goa police stations, (right) order of Bombay High Court, October 30th
Three journalists in Goa filed separate complaints of sexual harassment against the same individual, a PTI journalist. The FIRs were registered on different dates in September and October 2015 by the women’s police station, Panaji.
In the same month the accused filed for anticipatory bail. An additional sessions judge in Mapusa set forth some arguments while denying bail on October 14.
Subsequently the lawyers for the accused filed for anticipatory bail in the High Court of Bombay at Goa. Again, on October 30 this application was rejected.
Relevant extracts:
IN THE COURT OF ADDITIONAL SESSIONS JUDGE, MAPUSA
(Before Smt. Vijaya D. Pol, Additional Sessions Judge, Mapusa )
Anticipatory Bail Application no.453/2015.
…In the instant case also, though the punishment prescribed for the offences is less than seven years, however, as stated above, the repeated nature of the similar crimes against many women spread over many years makes it of large magnitude and proportion and thus cannot be regarded as minor offence/offences. Moreover, in the aforesaid case of “Siddharam Mhetre”, the Hon'ble Supreme Court also held that impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people should also be considered. The offences committed by the accused who is otherwise in a respected position of a senior journalist, has instilled a sense of insecurity among the women at large who work outside their houses and has shaken the collective conscience of the society. Even the Hon'ble Supreme Court in the case of “Siddharam Mhetre” (supra) has clearly stated that the antecedents of the applicant, and the reasonable apprehension of threat or influence to the complainant are some of the factors to be considered in the anticipatory bail application. The learned PP has rightly relied upon the case of “Gopal v/s. The State By Brahmavar Police” (supra) wherein the Hon'ble Karnataka High Court rejected the anticipatory bail application involving offences under sections 341, 354, 354A, 354C, 354D, 383 and 504 r/w section 34 IPC.
14. Moreover, there is nothing in the case papers to suggest that the victim in the instant case and the victims in the other crime numbers had any motive to falsely implicate the accused. Female victims always hesitate to lodge such complaints against the culprits and hence there is no merit in the submission made by the learned Advocate for the accused that the complaints have been lodged only to tarnish his image. One of the factors to be taken into consideration as per the ruling of “Siddharam Mhetre” (supra) is the element of genuineness in the complaint and it has been held therein that frivolity in prosecution should always be considered. There is no such doubt in the instant case/cases that they are frivolous. The learned Advocate for the accused, during the course of arguments also produced on record the appointment letters of two victims in HCN, the relieving letter and the appointment of Mr. Sandesh Prabhudessai to the post of Editor-in-chief in HCN, however, the aforesaid correspondence does not even prima facie show that the victims were not working with the accused at the relevant time of the offence.
15. The learned Advocate for the accused relied upon the case of “Rohit Chauhan” (supra) wherein the Hon'ble Bombay High Court granted bail to the accused allegedly involved in the offences under sections 376, 506 and 328 IPC mainly on the ground that the victim had an affair with the accused for about three years and she developed physical intimacy with him and the accused promised that he would marry her. The aforesaid case is not applicable in the instant case since the victim/victims never had any friendship with the accused who was their superior nor there is anything to suggest even remotely that the victim/victims were the consenting party/parties. Prima facie, the ingredients of the offences with which the accused is involved are squarely attracted in the instant case.
16. There is merit and force in the submission of the IO that the arrest of the accused will also instill confidence in the other victims against whom the accused has committed similar offences and they will come forward to set the law in motion and that the release of the accused on anticipatory bail will upset and demoralize not only the victims who filed the complaints but also the other such victims and will shake the collective conscience of the society.
17. In view of the aforesaid, I pass the following:-
ORDER
The instant anticipatory bail application is dismissed.
(Vijaya D. Pol)
Additional Sessions Judge, Mapusa.
The order passed on October 30, extracts:
IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL MISCELLANEOUS APPLICATION(BAIL) NO. 242 OF 2015 , 243 OF 2015 AND 244 OF 2015.
Mr. Rupesh Samant, S/o Mr. Gurudas Samant, Age 40 years, H. No:D-12, C Govt. Quarters, Altinho, Panaji Goa.
Versus
1. State, Through Officer Incharge/ Police Inspector, C.I.D. CB, Police Station, Ribander, Goa.
- The Public Prosecutor, Altinho, Panaji, Goa.
Coram:- K. L. Wadane, J. Reserved on: 29thOctober,2015. Pronounced on:30thOctober, 2015.
COMMON ORDER
All these applicant/accused Rupesh Samant in connection with the Crime Nos. 9/2015 registered for the offences punishable under Sections 354, 354(A) and 509 of IPC; Crime No. 10/2015 registered for the offences punishable under Sections 354(A), 354(D), 509 of IPC and under Section 67(A) of the Information and Technology Act and Crime No. 11/2015 registered for the offences punishable under Sections 354 and Respondents...
Three application are filed by the 509 of IPC before the Women Police Station, Panaji. All these complaints/FIRs were submitted by different Women/victim. Therefore, it is necessary to mention the substance of the allegations made against the present applicant, by each of the informant.
2. In the first complaint i.e. FIR No. 9/2015, the complainant/victim has alleged that after joining her services in August, 2012 in Herald Cable News (“HCN” for short), she exchanged phone numbers with the applicant, who was reporting at HCN. Initially, their SMS chats were normal on the lines of greeting each other like “Good Morning” or meeting intimations etc. However, one day in the office, the applicant suddenly commented on her looks and said “You are looking sexy' upon such comment the victim was shocked and felt her outrage by nature of the comment.
3. Another instance was occasioned when the complainant was having food in a small cabin at her work place, at that time the applicant entered into the cabin he came close to the complainant pulled her facial checks and left the cabin. Due to which, the complainant completely shocked by his unwarranted physical touch.
4. In the second complaint regarding crime no. 10/2015, the complainant alleges that during the period from June 2014 to June, 2015, she was working at HCN during that period the applicant kept texting her inappropriate, disturbing, sexual messages every now and then, inspite of her repeated attempts to thwart it. There was an occasion that the applicant also checked her out in a vulgar and indecent way and passed lewd comments about her body and dress. Such comments created a grave sense of discomfort.
5. On 27.5.2015, the applicant asked the complainant to meet him under the pretext of discussing some office matter and he took the complainant to a dinner at “River Lounge” and forced her to drink a beer. After speaking for a few minutes, the applicant stated that if the complainant agrees to indulge in an act of fornication with him then he would arrange her a marriage with a wealthy industrialist or a businessman.
6. In the third complaint relating to FIR No. 11/2015, the complainant has alleged that she was working with HCN from 2009 to 2011. From June, 2011 she joined “Viva Goa” and worked till 2013.
7. In the month of August, 2013, the applicant messaged the complainant on Whatsapp to come out for coffee. When reached at the entrance of Shiordao beach, the applicant stopped the car. He turned towards the complainant and came over her body and pushed her front seat behind and started kissing her on lips, due to such acts of the applicant, the complainant shouted on him and told him to drop her to house.
8. FIR No.9.2015 was registered on 23.9.2015, FIR NO. 10/2015 was lodged on 25.9.2015 and FIR No. 11/2015 was lodged on 1.10.2015 before the Women Police Station, Panaji. After registration of the crime, the applicant moved an application for anticipatory bail before the learned Sessions Judge, Panaji. However, the learned Sessions Judge has rejected all the applications holding that the offences committed by the applicant are serious against several women and it had impact on the society. Therefore, the applicant approached this Court for anticipatory bail.
9. I have heard Mr. Shirish Gupte, learned Senior Counsel appearing for the applicant and Mr. S. R. Rivankar, learned Public Prosecutor for the respondents.
10. During the course of arguments Mr. Shirish Gupte, learned Senior Counsel has concentrated the arguments mainly on the point that there was delay in filing the complaints. Secondly, on the ground that on the face of the FIRs/complaints no offences can be said to be have been committed by the applicant as there is no material on record to constitute the offences leveled against the applicant. Thirdly, the applicant is ready to produce the mobile, which the investigating officer wants to seize. Further, Mr. Shirish Gupte, learned Senior Counsel has argued that when the personal liberty of a person is to be restricted then the Court has to see whether there are sufficient grounds to arrest or whether custodial interrogation of the applicant isrequired or not. If without custodial interrogation, the investigation can be done, then, the custody of the accused is unnecessary.
11. During the course of arguments, Mr. Shirish Gupte, learned Senior Counsel has relied upon the judgment in the case of Siddharam Satlingappa Mhetre Vs. State of Maharastra reported in (2011)1 SCC 694 at para 112 and based upon the guidelines/ parameters framed by the Apex Court, Mr. Shirish Gupte, learned Senior Counsel argued that the accused/applicant is entitled for anticipatory bail.
12. As against these, Mr. Rivankar, learned Public Prosecutor argued that the accused/applicant not only committed single offence but committed series of offences that too assault on a women's with intend to outrage their modesty. Cumulative effect of all the complainants if taken together then it can be said that the offences committed by the applicant are serious. Mr. Rivankar, learned Public Prosecutor further argued that the custody of the applicant/accused is required for the purpose of recovery of the mobile/electronic device though which vulgar messages were passed/transmitted on the mobile phone of the victim's.
13. Keeping in the mind the arguments advanced by both the sides, the averments of the FIRs and the statements of witnesses, it is material to mention here that the applicant is a Senior Journalist working with news’s channel namely HCN and the alleged offence is against Women, who were working under the control of the applicant. According to the prosecution, the accused had taken undue advantage of his position, he has tried to outrage modesty of various women.
14. From the contents of the FIRs which, it appears that each of the woman, in clear terms, has stated what applicant/accused had done with them. Furthermore, delay in lodging the FIR is explained. Such explanation prima facie appears to be probable because of the victims were unmarried girls at the time of incident.
15. One of the victims has stated that she would have buried these bitter feelings till the issue of sexual harassment was openly discussed amongst the journalist community in State of Goa and on the social media, and then she realised that keeping quite further would only defend her guilt. One of the victim has clearly stated that she could not complaint the management as she had no faith in the management and the management had protected applicant in similar incident in the past. According to one of the victims, after the months of deliberation and discussion with family and friends, she finally decided to disclose the truth and the acts committed by the applicant, mainly because the applicant was sexually harassing other girls also. Thus, from the averments in the three FIRs , it is clear that the applicant/accused was in spree of sexually harassing women who worked under him.
* * * * *
21. I have gone through the various parameters/guidelines laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre(supra). One of the parameters i.e. at serial no.vii of paragraph 112 states that Court must evaluate the entire available material against the accused very carefully. The Court must also comprehend the exact role of the applicant in such case.
22. Here, in the present case, the exact role /act committed by the applicant has been specifically narrated by three women and during the course of arguments Mr. Rivankar, learned Public Prosecutor has stated that recently, the investigating officer has received one more complaint of similar nature, from which, it is seen that the applicant is habitual in doing such activities against the women.
23. During the course of arguments, Mr. Shirish Gupte, learned Senior Counsel has argued that filing of the FIRs by the complainant/various women, is an outcome of rivalry/groupism in the corporate body, where the applicant works. However, I do not think any reason for the women, working under the control of the applicant, to file false complaint on the stake of reputation and honour.
24. It appears from the record that when the complaint/FIR no. 9/2015 registered then matter become public, then only another two victims came forward to disclose the offence. As already referred above, non-filing of the complaint/FIR immediately after the alleged offence, is well reasoned and well explained and one has to consider primia facie at this stage that there is nothing on record to suggest that there was some reason or ill motive behind the crime, by which the complainants have led to register the false FIRs/complaints.
25. The next question is of the recovery of the mobile used by the applicant during the relevant period. Mobile phone/electronic device is an instrument, through vulgar and sexual messages were transmitted to the victims. Some of the text messages are reproduced in the complaints.
26. In such circumstances, the communication between two electronic devices has to be established after they being examined by the expert. Therefore, the instrument i.e mobile handset, coupled with the sim card used, are most important articles, to be attached, which is now in the possession of the applicant. During the course of arguments, Mr. Shirish Gupte, learned Senior Counsel has argued that the applicant is ready to produce mobile handset. I do not think that it will suffice the purpose of investigation because investigating officer has to attach sim card which was used in the mobile and such thing is not possible without custodial interrogation of the applicant.
27. There are no circumstances appearing from the record that the applicant is implicated in false cases therefore, the applicant/accused is not entitled for anticipatory bail.
28. Consequently all the bail applications stand dismissed.
K. L. WADANE, J.