BINOY JACOB v. STATE OF KERALA & MERIN MATHEW

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944** **CRL.MC NO. 847 OF 2022** **(CRIME NO.1411/2016 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM DISTRICT PENDING AS CC 131/2017 ON THE FILE OF JFMC III, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** BINOY JACOB, AGED 49 YEARS SON OF CHACKO JACOB, RESIDING AT 5-B, JUPITER, TRINITY WORLD, CHITTETUKARA, THRIKKAKARA, TALUK, KAKKANAD, ERNAKULAM, PIN - 682037 BY ADV SASTHAMANGALAM S. AJITHKUMAR ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 MERIN MATHEW, AGED 37 YEARS DAUGHTER OF. SHEEBA MATHEW, TC19/1973, THEKKE KAITHAVANAM VEEDU, DECENT JUNCTION, POOJAPPURA WARD, THIRUMALA VILLAGE MUSEUM, THIRUVANTHAPURAM CITY,PIN - 695012 BY ADVS. PUBLIC PROSECUTOR SRI.SANGEETHA RAJ SMT.MAITREYI SACHIDANANDA HEGDE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON 01.11.2022 PASSED THE FOLLOWING: Crl.M.C.No.847/2022 ## -:2:- O R D E R Dated this the 1[st ] day of November, 2022 This Crl.M.C has been filed to quash all further proceedings in CC No.131/2017 on the file of JFCM-III, Thiruvananthapuram (for short, the court below). 2. The petitioner is the sole accused. The 2[nd] respondent is the de facto complainant. The offences alleged are punishable u/s 354A and 354D of IPC. 3. The petitioner was the Vice President of Air India Sats, a company incorporated under the Indian Companies Act. The 2[nd] respondent was working as an Administrative Officer with the above said company. The crime was registered by the Museum Police Station, Thiruvananthapuram as Crime No.1411/2016 on the complaint given by the 2[rd] respondent alleging that she was subjected to sexual harassment at the work place by the petitioner. After investigation, Annexure 1 final report was filed. 4. The allegation in Annexure 1 final report is that some day during October, 2015 the petitioner and the 2[nd] respondent Crl.M.C.No.847/2022 -:3:- went for a dinner at Taj Hotel and during the dinner, the petitioner asked her whether her breast size was 38 and also said that she should accompany him to Delhi or to his flat at Kakkanad if she wanted career growth. It was further alleged that the petitioner sent WhatsApp messages to seduce her. Thereafter, during April, 2016 some day, the petitioner attempted to touch her back. Since the 2[nd] respondent was uncooperative to the sexual overtures, the petitioner stopped her probation also. 5. The 2[nd] respondent filed a complaint on 2/7/2016 before the Internal Complaints Committee (for short, ICC) constituted under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013) (for short, Act of 2013). The said complaint was enquired into and it was found that there was no sexual harassment as alleged. Annexure 3 is the report. The above Crl.M.C has been filed to quash the proceedings on the ground that since the very same complaint raised by the 2[nd] respondent in Annexure 1 police charge was considered by the ICC and found to be not proved, the criminal prosecution on same set of facts before a court will not stand. 6. I have heard Sri.Sasthamangalam S.Ajith Kumar, the Crl.M.C.No.847/2022 -:4:- learned counsel for the petitioner, Smt.Maitreyi Sachidananda Hegde, the learned counsel for the 2[nd] respondent as well as Sri.Sangeetha Raj, the learned Public Prosecutor. 7. Annexure 6 order passed by the court below would show that the petitioner filed an application for discharge invoking S.239 of Cr.P.C before the court below and it was dismissed. The discharge was sought on the ground that there was an unexplained delay of 6 months in lodging the FI statement by the de facto complainant, that the statements of the 2[nd] respondent recorded u/s 154 Cr.P.C and 164 of Cr.P.C were contradictory to each other and that except the interested testimony of the 2[nd] respondent, there was no other eyewitness to the alleged incident. It was also alleged that the prosecution records did not reveal the ingredients to constitute the offence alleged. The point now raised by the petitioner in this Crl.M.C. has not been raised by the petitioner in the application for discharge. Even though Annexure 6 was challenged before the appellate court as well as before this court, the petitioner could not succeed. Thereafter, the petitioner filed an application before the court below as CMP No. 474/2020 u/s 173(8) of Cr.P.C. for further Crl.M.C.No.847/2022 -:5:- investigation mainly on the ground that ICC enquired into the matter and found that the complaint of the 2[nd] respondent was false. However, the said application was dismissed as per Annexure 9 order which was confirmed by this court as per Annexure 10 judgment. It was thereafter this Crl.M.C. has been preferred. 8. Annexure 2 is the complaint preferred by the 2[nd] respondent before the CMD of Air India Sats alleging sexual harassment. The said complaint was enquired by the ICC consisting of four members and Annexure 3 report was submitted on 5/10/2016. As per the report, the Committee has observed that no kind of sexual harassment was made out in the enquiry and the allegation raised against the petitioner were not sufficient to conclude that there was sexual harassment. The learned counsel for the petitioner Sri.Sasthamangalam Ajith Kumar vehemently argued that the enquiry was conducted by the Committee formed under Act of 2013 and the said report has become final. When such a statutory committee exonerated the petitioner on merits on the ground that allegations were not proved, the criminal prosecution on the same set of facts and Crl.M.C.No.847/2022 -:6:- circumstances cannot be allowed to continue, submitted the counsel. In support of his submission, the learned counsel relied on the decision of the Apex Court in _**Radheshyam Kejriwal v. State of West Bengal and Another**_ (2011 KHC 4144) and another decision of the Karnataka High Court in _**Usha Padmini v. State of Karnataka**_ (Crl.Petition Nos.7492 and 7493/2016 dated 28/1/2019) 9. In _**Radheshyam Kejriwal**_ (supra), the Apex Court found that in a case of exoneration on merits in adjudication proceedings u/s 51 of the Foreign Exchange Regulation Act, 1973 (for short, FERA), where the allegations are found to be not sustainable at all, and person concerned is held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, underlying principle being higher standard of proof in criminal cases. In _**Usha Padmini**_ (supra), the Karnataka High Court held that when ICC after enquiry found that there is no truth or substance in the allegations of sexual harassment, the prosecution of the accused on the same set of allegations would be unjust and abuse of the process of the court. 10. _**Radheshyam Kejriwal**_ (supra) was a case relating to Crl.M.C.No.847/2022 -:7:- the contravention of the provisions of S.8(2) and S.9(1)(f)(i) of the FERA. In the said case, the Investigating Agency (ED) found that since the accused had contravened the provisions of S.9(1)(f)(i) of FERA, he rendered himself liable to be imposed with penalty u/s 50. Accordingly, adjudication proceedings as contemplated u/s 51 of the Act was initiated. In the said adjudication proceedings it was found that the allegation made against the accused of contravention of S.8(2) and S.9(1)(f)(i) of FERA cannot be sustained. As per FERA, any person contravening the provisions of Ss.8 and 9 of the Act besides other provisions is also liable to be prosecuted u/s 56 of the Act. Hence, criminal prosecution was launched against the accused u/s 56 as well. The said prosecution was challenged by the accused before the trial court by filing an application for dropping the proceedings contending that on the same allegation the adjudication proceedings having been dropped, his continued prosecution is an abuse of the process of the court. The Magistrate Court rejected his prayer. Aggrieved by the same, he preferred Crl.Revision Application before the Calcutta High Court unsuccessfully. Being aggrieved, he approached the Apex Court. Crl.M.C.No.847/2022 ## -:8:- The Apex Court found that in a case of exoneration on merits in the adjudication proceedings u/s 51 of FERA, criminal prosecution on the same set of facts cannot be allowed to be continued. 11. A plain reading of S.51 of the FERA would show that _sine qua non_ for imposition of penalty u/s 51 of the Act is that the adjudicating officer has to record its satisfaction that the person concerned has committed the contravention of any of the provisions of the Act or of any Rule, direction or order made thereunder. It was in these circumstances, the Apex Court held that in case it is found on merit that there is no contravention of the provisions of FERA in the adjudication proceeding, the trial of the person concerned shall be abuse of the process of court. Here in this case, the petitioner was prosecuted under the provisions of the Indian Penal Code. Hence, the dictum laid down in _**Radheshyam Kejriwal**_ (supra) cannot be applied to the facts of the case. 12. In _**Usha Padmini**_ (supra), the de facto complainant raised allegation of sexual harassment at the work place against the accused. The Internal Complaints Committee constituted found the allegation to be baseless. There, in the course of Crl.M.C.No.847/2022 -:9:- enquiry by the ICC, the de facto complainant virtually conceded that no occurrence of sexual harassment as alleged by her had taken place. It was specifically found that the de facto complainant maintained all throughout in her complaint as well as before the ICC that there was no physical contact whatsoever by the accused. It was in these circumstances the High Court found that there was no basis whatsoever for the investigating agency to lay charge sheet against the accused. Here, the 2[nd] respondent from the very inception has maintained a consistent stand that she was subjected to sexual harassment at the work place by the petitioner. That apart, it was without any discussion and reasoning ICC found in Annexure 3 that case of sexual harassment was not made out. Hence, the dictum laid down in _**Usha Padmini**_ (supra) also will not apply to the facts of the case. 13. S.28 of the Act of 2013 stipulates that provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, it is clear that the action under the Act of 2013 by the employer and a complaint registered at the instance of the employee for the offence under the Indian Penal Code is independent to each Crl.M.C.No.847/2022 -:10:- other. Two fold actions are permissible for the sexual harassment complaint. Hence, both actions are independent and permissible under law. There is absolutely no bar in proceeding with the criminal prosecution initiated against the petitioner. The FI statement of the 2[nd] respondent and the materials collected during investigation _prima facie_ disclose the ingredients of the offences alleged against the petitioner. When _prima facie_ case is made out, jurisdiction vested with this court u/s 482 of Cr.P.C cannot be invoked. For the reasons stated above, the petitioner is not entitled to the relief sought for. Crl.M.C fails and it is accordingly dismissed. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** **Rp** Crl.M.C.No.847/2022 ## -:11:- ## **APPENDIX OF CRL.MC 847/2022** PETITIONER ANNEXURES |Annexure1|THE CERTIFIED COPY OF THE FINAL REPORT| |---|---| ||IN CRIME NO. 1411/2016 OF MUSEUM POLICE| ||STATION, THIRUVANANTHAPURAM DISTRICT| ||PENDING AS C.C. 131/2017 ON THE FILE OF| ||JFMC III, THIRUVANANTHAPURAM| |Annexure2|THE TRUE COPY OF THE COMPLAINT BEFORE| ||THE COMMITTEE CONSTITUTED UNDER SEXUAL| ||HARASSMENT OF WOMEN AT WORK PLACE| ||(PREVENTION, PROHIBITION & REDRESSAL)| ||ACT, 2013| |Annexure3|THE TRUE COPY OF THE REPORT DT.| ||05/10/2016| |Annexure4|THE TRUE COPY OF THE ORDER DATED| ||23.10.2019 IN W.P.C NO. 20939/2017 OF| ||THIS HON'BLE COURT| |Annexure5|THE TRUE COPY OF THE APPEAL ORDER DT.| ||29.05.2019 OF THE APPEAL AUTHORITY| |Annexure6|THE TRUE COPY OF THE ORDER DATED.| ||04.05.2019 IN C.M.P NO. 832/2019 OF| ||JFMC-III, THIRUVANANTHAPURAM| |Annexure7|THE TRUE COPY OF ORDER IN CRL. R.P.| ||NO.20/2020 THE ADDITIONAL DISTRICT AND| ||SESSIONS JUDGE-V, THIRUVANANTHAPURAM| |Annexure8|THE TRUE COPY OF ORDER IN O.P. (CRL) NO.| ||317/2020 BEFORE THIS HON'BLE COURT| |Annexure9|THE TRUE COPY OF ORDER IN CMP| ||NO.474/202O<br>OF<br>JFMC-III,| ## Crl.M.C.No.847/2022 ## -:12:- THIRUVANANTHAPURAM DATED 25/3/2021 Annexure10 THE TRUE COPY OF THE ORDER IN CRL.M.C. NO. 2092/21 BEFORE THIS HON'BLE COURT Annexure A11 THE TRUE COPY OF THE COUNTER FILED BY THE AIR INDIA SATS Annexure A12 THE TRUE COPY OF THE ORDER IN G2415/2019 OF REGIONAL LABOUR COMMISSIONER AT KOLLAM Annexure 13 THE TRUE COPY OF THE FIR IN CRIME NO.1411/2016 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM DISTRICT PENDING AS CC 131/2017 ON THE FILE OF JFMC III, THIRUVANANTHAPURAM Annexure 14 THE TRUE COPY OF THE COUNTER FILED BY THE AI SATS