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Balancing Of Interest In Sexual Harassment

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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.
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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."
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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:
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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
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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.
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