Balancing Of Interest In Sexual Harassment
“There is no absence of cases in which fake allegations are leveled against men for guilty mind
or ill motive. Presently “Several number of such complaints in which the real victims are men,”,
who cares for the rights of men.
In a number of cases, laws meant to protect women are misused. “You can find long list of
cases in which girls get into relationships with boys and if there is any brawl, she find the
simplest and easiest way to level allegations of​ sexual harassment​ on the boy. Since the Law of
the land ensures immediate arrest of boys/men in cases of sexual abuse, the latter find
themselves in troubled waters due to the fake allegations,”
The applicability of section 354 varies from case to case as the courts are cognizant of the fact
that such allegations are simple to make and it is very crucial for a male to disprove the same.
Independent witness may not be available at all times as there can be adduce where a person
has done such conduct in private. So, the courts have been persistent with the consideration
that the same may be examined by the surrounding facts and circumstances and the evidence
of the victim must inspire the confidence of the Court, It should be cogent and trustworthy.
Most of the false and malicious complaints, that complaints are also mostly distorted versions of
the sudden controversy or are bubble of fantasy. The deviation in the FIR and during trial in
cases under section 354 is one of the facts leading to acquittal of the accused. Some episode
mentioned in the FIR is so curious that no man of ordinary mind set would understand it.
Presently it is often seen that crafty women cry sexual abuse.
Hon’ble Bombay High Court held that "The test will be whether a reasonable man will think that
the act of the accused was intended to or was known to be likely to outrage the modesty of the
woman, if a quarrel takes place suddenly, for which both parties are more or less to be blamed,
then, by no stretch of imagination can it be held that in the resultant scuffle between the
quarrelling parties, the accused persons either intended or knew it to be likely that they will
thereby outrage the modesty of woman."
In respect of this, the Hon’ble Supreme Court has stated that the approach that ordinarily a lady
would not put her character at stake may not be wrong but the same cannot be applied
universally. Each case has to be determined on the touchstone of the facts and circumstances
surrounding it as the law reports are replete with decisions where charges under sections 376
(rape) and 354 (outrage the modesty of a woman) have been found to be falsely advanced.
“Some Legal Provision, Aspects and Bail”
Sexual harassment is objectionable sexual action that’s offensive, humiliating or intimidating. It
can be written, oral or physical, and can happen in person or through online. Both Male and
Female can be the victims of sexual harassment. When it happens at work Premises or
educational Premises etc.
Sexual assault is an act in which a person intentionally sexually touches another person without
that person's free consent, or coerces or use physically forces a person to engage in a sexual
act against their will and consent. It is a mode of Sexual Assault, which includes rape (forced
vaginal, anal or oral penetration or drug facilitated sexual assault), groping, child sexual abuse
or the torture of the person in a sexual manner.
Hon’ble Supreme Court of India set Guideline in the Land Mark Judgment:Vishaka and others v State of Rajasthan was a 1997 Indian Supreme Court case where Vishaka
and other women's groups filed Public Interest Litigation (PIL) against the state of Rajasthan
and the central government of India to enforce the fundamental rights of working women under
Articles 14, 19 and 21 of the Constitution of India.
As Highlighted below:Sexual harassment should be affirmatively discussed at workers' meetings, employer-employee
meetings, etc.
Guidelines should be prominently displayed to create awareness about the rights of female
employees.
The employer should assist persons affected in cases of sexual harassment by outsiders.
Central and state governments must adopt measures, including legislation, to ensure that
private employers also observe the guidelines.
Names and contact numbers of members of the complaints committee must be prominently
displayed.
What act of the person called Sexual Harassment:The Sexual Harassment at the Workplace (Prevention, Prohibition and Redressal) Act, 2013:
Under the Act, sexual harassment includes:
a) Physical contact and advances
b) A demand or request for sexual favors
c) Making sexually colored remarks
d) Showing pornography
e) Any other objectionable physical, oral or non-oral act of sexual nature.
Under the Act, the below five also added as sexual harassment:
a) Indirect or direct promise of preferential treatment in her employment.
b) Indirect or direct threat of detrimental treatment in her employment
c) Indirect or direct threat about her present or future employment status
d) Interference with her work or creating an intimidating or offensive work environment for her.
e) Humiliating treatment likely to affect her health or safety.
Provision of Indian Penal Code:Section 354 IPC: Assault or criminal force to woman with intent to outrage her
modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or
knowing it to be likely that he will thereby outrage her modesty, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or with
both.
Section 354 (A) IPC : A man committing any physical contact, advances involving unwelcome
and explicit sexual overtures; or demanding or requesting sexual favors; or showing
pornography against the will of a woman; or making sexually colored remarks, shall be guilty of
the offence of sexual harassment. (Punishment: Rigorous imprisonment for a term which may
extend to three years) Cognizable and Non Bailable Offence
Section 354 (B) IPC : For acting with intent to disrobe a woman: A man who assaults or uses
criminal force to any woman or abets such act with the intention of disrobing or compelling her
to be naked shall be punished with imprisonment for a minimum term of 3 years (but which may
extend to 7 years), and shall also be liable to a monetary fine. Cognizable and Non Bailable
Offence
Section 354(C) IPC : For voyeurism : A man is guilty of voyeurism
if he watches, or captures the image of a woman engaging in a private act in circumstances
where she would usually have the expectation of not being observed, or
if he disseminates such image. "Private act" includes an act carried out in a place which would
reasonably be expected to provide privacy and where the survivor's genitals, posterior or
breasts are exposed or covered only in underwear; or the survivor is using a lavatory; or the
survivor is doing a sexual act that is not of a kind ordinarily done in public. Further,
in case where the survivor consents to the capture of the images or any act - but not to their
distribution to third persons and where such image or act is disseminated, such dissemination is
considered an offence under this section. On the first conviction, the punishment is
imprisonment for a minimum term of 1 year (but which may extend to 3 years), and also a
monetary fine. For second or subsequent conviction, the punishment is imprisonment for a
minimum term of 3 year (but which may extend to 7 years), and also a monetary fine.
Cognizable and Non Bailable Offence
Section 209 IPC: Obscene acts in any public place, singing obscene songs to the annoyance of
others (Punishment: Imprisonment for a term of up to 3 months or fine, or both). Non
Cognizable and Bailable Offence
Section 509 IPC: Uttering any word or making any gesture intended to insult the modesty of a
woman. (You cannot call her “mast".) Punishment: Imprisonment for 1 year, or fine, or both.)
Cognizable and Bailable Offence
Facts, Circumstances, Evidence consideration at the time of granting Bail:
Bail to Sexual Harassment accused on grounds of No Prima Facie offence made out and
accused suffered detention. No essential ingredients of the offence made out.
During granting of bail, a detailed examination of evidence and elaborate documentation of
merit of the case is not required to be undertaken. Another principle is that enlargement on bail
is the rule and committal to jail is an exception. The Court moved on to hold that even when
there is a serious charge leveled against the appellant, it by itself cannot be the reason to deny
anticipatory bail. Also, the inherent powers of the Court under Section 482, under which the bail
could be quashed, has to be exercised with caution and prudence, Shivali Sharma v. State,
2017 SCC
The Hon’ble Kerala High Court directed the below court to find and examine complaint. It is well
settled that mere assault on woman will not come under the ambit of Section 354 IPC. For
Section 354 Sexual intension is required , use of criminal force against any with the object of
dishonouring that person come under section 355 IPC which is bailable offence. If the case is
related to simple assault if the essential ingredients of section 354 are not there bail can be
granted Abdul Vahab vs State of Kerala.
Hon’ble Madhya Pradesh High Court held that the date of incident and the report was lodged
after four month of the incident. No plausible explanation given for such delay in case diary.
Subsequently new offence made out under section 354 B IPC in case diary, there is possibility
to arrest of accused by police official or Court so the anticipatory bail granted to applicant with
condition the applicant join the investigation, Rajeev Nema vs State of M.P.
Contacus