In the case of Sapana Korde Nee Ketaki A. Ghodinde v. The State of Maharashtra and Ors., the Bombay High Court on 9^th January 2019 held that filing sexual harassment complaint against a person belonging to Scheduled Caste (“SC”) or Scheduled Tribe (“ST”) does not constitute an atrocity under 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 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 2^nd November, 2017 for offences under the Atrocities Act.  The FIR stated that Appellant had previously lodged false complaint against Respondent on 6^th May, 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 Appellant was not reflecting sexual harassment, but it reflected 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, Respondent was informed. This triggered the Respondent to file the abovementioned FIR. Appellant applied for anticipatory bail on this FIR which 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 for a thorough inquiry in 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 Respondent, who belongs to SC. Respondent’s argument was that Appellant had committed offences punishable under Sections 3 (1) (p), 3 (1) (q) and 3 (2) (vii) of the Atrocities Act.

Before moving forward, lets 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) are proved.

As per Atrocities Act, therefore, for making out offences under the abovementioned provisions one is required to make out a prima facie case of instituting a 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 Appellant was false or not. For this, the Court noted that Appellant had filed the Harassment Complaint titled “Improper Behaviour and abusive language of Departmental Store keeper” which was forwarded to Women Grievance Committee for inquiry and report.

On this point, the Court held that, there is no pronouncement by the Competent Authority (i.e. IC) that the complaint lodged by Appellant is false, malicious or vexatious. On the contrary, the IC concluded that the complaint is not in respect of sexual harassment, but it is 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 Appellant made to a public servant is false or frivolous for causing injury or annoyance 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 workplace. The Court stated that the Harassment Complaint “…ought to have been considered by 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 few circumstances reflecting sexual harassment of women at workplace. The circumstances, incorporated in Sub-Section (2) of Section 3 are lost sight by the Committee constituted for prevention of sexual harassment of women at 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 Respondent in this case was sexual harassment or not, however, 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 workplace and finer nuances of Section 3 (2). However, the Court did not order the IC to conduct a new inquiry into this complaint.

– Priyanka Pai, Associate and Shivangi Prasad, Partner