Summary
A yoga instructor at a national institute in Gwalior alleged sexual harassment by its Vice-Chancellor. The police registered no FIR despite repeated complaints, though the Internal Complaints Committee found the allegations established. She applied under Section 156(3) CrPC. The Magistrate found a prima facie offence but treated the application as a complaint case, and the High Court upheld this as discretionary. The Court reiterated, following Lalita Kumari, that police must register an FIR when a cognizable offence is disclosed, and should treat complainants of sexual offences sensitively. Where a prima facie cognizable offence appears and key evidence lies with the accused, here CCTV recordings of his chamber allegedly taken away by him, investigation must be ordered. The appeal was allowed and investigation directed under a woman officer of at least Superintendent rank.
Issues
- Whether a Magistrate who finds a prima facie cognizable offence on a sexual harassment complaint may, under Section 156(3) CrPC, decline to direct police investigation and treat it as a complaint case when vital evidence is in the accused's possession.
- What duties the police and courts owe complainants alleging sexual harassment or assault.
Provisions considered
- Sections 154, 156(3), 200 and 202, Code of Criminal Procedure, 1973Police must register an FIR when a cognizable offence is disclosed. The discretion under Section 156(3) must be exercised judicially, and where evidence is in the accused's possession and needs police powers to retrieve, the Magistrate must order investigation instead of proceeding as a complaint case. (¶¶ 15, 18, 20, 21, 23, 24, 26)
- Section 327, Code of Criminal Procedure, 1973It provides for in camera trials of specified sexual offences, illustrating the sensitive handling the legislature requires. The Court drew on it in guiding trial courts on recording the testimony of complainants in sexual harassment cases. (¶¶ 33, 35)
Held
- Following Lalita Kumari, police must register an FIR forthwith when information discloses a cognizable offence, and its truth is for investigation. If no offence is found, they may file a closure report, but they have no discretion to decline registration. The police inaction here was most unfortunate, especially as complainants of sexual offences face stigma and intimidation. (¶¶ 15, 16, 17, 18)
- Section 156(3) gives the Magistrate wide powers to ensure proper investigation, including directing registration of an FIR and monitoring the investigation. The word may confers a discretion, but it must be exercised judicially and not arbitrarily. (¶¶ 20, 21, 23)
- Where the Magistrate finds a prima facie cognizable offence and facts show the need for police investigation, Section 156(3) becomes a duty to order investigation. That is so where evidence such as CCTV recordings is allegedly held by the accused and can be retrieved only with police powers. Courts should not burden traumatised complainants of sexual offences with proving their case without such evidence. (¶¶ 23, 24, 25, 26, 27, 28)
- Courts must treat complainants of sexual harassment and assault sensitively and keep the process from becoming onerous. Trial courts should allow in camera proceedings where appropriate and use a screen or remove the accused during testimony. They should ensure respectful cross-examination without inappropriate questions on sexual history, possibly routed through the court, and complete it in one sitting where possible. (¶¶ 30, 31, 32, 33, 34, 35)
Result
Appeal allowed. The High Court's judgment and the Magistrate's direction to treat the matter as a complaint case are set aside, and police investigation under Section 156(3) is ordered, supervised by a woman officer not below Superintendent of Police nominated by the zonal DIG. No opinion is expressed on the merits.