In the case of X vs State of J&K and Anr., before the High Court of Jammu and Kashmir on 1^st February 2019, the question that arose for consideration was whether a complaint / FIR registered with police simultaneously with a complaint filed with an internal committee of an organization will be valid. (law against sexual harassment at workplace)

Brief facts of the case are that a complaint of sexual harassment came to be lodged against the petitioner with the department. The lady also lodged a case with SHO, P/S Women Cell, Rajouri under Section 354D, 506, 500-II and 509 of Ranbir Penal Code (“RPC”) alleging therein that she was being harassed and victimized. Petitioner, feeling aggrieved by the same decided to approach the High Court. Some of the most important arguments put forth by the petitioner are:

1. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the Act”) being promulgated by the State, it is beyond the jurisdiction of police to register a case under Section 354-D since the category of offences defined in 354-D are identical and pari materia with the contents of the Act as defined in Section 2(n).
2. The Committee constituted by the Head of Department under the Act has already taken cognizance in the matter, the petitioner has submitted his reply to the allegations levelled against him and further proceedings are to be conducted by the Committee as per the Act.
3. The registration of FIR in the present case is nothing but abuse of process of law and has visited the petitioner with penal consequences and is violative of his Fundamental Rights. The Registration of the case by the police is totally unwarranted and exercise of power to investigate the matter is an act which is required to be struck down being without jurisdiction and without competence.
4. Lodging of the FIR after the constitution of the Committee and supply of the reply by the petitioner, is nothing but the exercise which is an outcome of non-application of mind and is further conducted by malice in law.

Referring to Section 28 of the Act, the High Court of Jammu and Kashmir held that “…it is evident that provisions of this Act are in addition to any other laws in force. Offences against women under penal code deal with all types of women whether employed or not. But Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, deals with complaint by woman at work place only.”  Section 28 of the Act states that, “The provisions of this Act shall be in addition to and not in derogation of the provisions or any other law for the time being in force.”

It also stated that, “While legislating this Act, framer of Act is aware of the provisions of the penal law and this Act and the consequential remedy available under the Act provides the additional remedy. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the women at work place better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/ extended jurisdiction, particularly when Section 28 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar.”

It, therefore, held that the Act is in addition to RPC and there is no conflict between them. So it can be held that provisions of the Act (law against sexual harassment at workplace) are not in derogation of the provisions or any other law for the time being in force, including that of RPC.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Child Safety at Work