1 R Reserved on :
07. 06.2024 Pronounced on :
09. 08.2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE09H DAY OF AUGUST, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.4476 OF2023C/W CRIMINAL PETITION No.662 OF2023CRIMINAL PETITION No.743 OF2023CRIMINAL PETITION No.1317 OF2023CRIMINAL PETITION No.1320 OF2023CRIMINAL PETITION No.3289 OF2023CRIMINAL PETITION No.4646 OF2023IN CRIMINAL PETITION No.4476 OF2023BETWEEN: MS. SABINE BAECHLER AGED ABOUT47YEARS D/O MR. KANIS BAECHLER R/AT BIRCHSTRASSE184 8050 ZURICH, SWITZERLAND EMPLOYED AS DIRECTOR HEAD CONTROLLING AND REPORTING P AND C EMEA SWISS REINSURANCE COMPANY LIMITED SWISS RE NEXT MYTHENQUAI5060 8022 ZURICH2SWITZERLAND ... PETITIONER (BY SRI PRABHULING K.NAVADGI, SR. ADVOCATE A/W., SRI SUSHAL TIWARI N., ADVOCATE) AND:
1. . STATE OF KARNATAKA THROUGH JEEVAN BHEEMA NAGAR POLICE STATION, HAL3D STAGE JEEVAN BHIMA NAGAR BENGALURU – 560 075 REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. 2 . MS. JAHAN AARA AGED ABOUT42YEARS D/O MR. SYED AZEEZULLA R/AT FLAT NO.G-C CALENDULA BLOCK REGENCY LA MAJADA HENNUR MAIN ROAD BENGALURU – 560 043. ... RESPONDENTS (BY SRI THEJESH P., HCGP FOR R1; SRI S.SRIVATSA, SR. ADVOCATE A/W., SMT. UDITA RAMESH, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO SET ASIDE THE
ORDERDATED1806.2022 IN P.C.R.NO.51828/2021 PENDING ON THE FILES OF THE COURT OF THE X ADDL.C.M.M., MAYO HALL, BENGALURU (ANNEXURE-A) AND PRIVATE COMPLAINT DATED1904.2021 BEARING PCR.NO.51828/2021 (ANNEXURE-B) AND QUASH THE ENTIRE3PROCEEDINGS ARISING THEREFROM AS AGAINST THE PETITIONER, INCLUDING THE FIR BEARING CR.NO.0278/2022 DATED1212.2022 OF JEEVAN BHEEMANAGAR P.S., U/S107 354A, 500, 506, 120(B) R/W34OF IPC (ANNEXURE-C). IN CRIMINAL PETITION No.662 OF2023BETWEEN: MR. AMIT KALRA S/O MR. LALIT KALRA AGED ABOUT42YEARS HAVING HIS PLACE OF WORK AT SWISS RE GLOBAL BUSINESS SOLUTIONS INIDIA PRIVATE LIMITED2D TO5H FLOOR, FAIRWINDS BUILDING, EMBASSY GOLF LINKS BUSINESS PARK CHALLAGHATTA BENGALURU – 560 071. ... PETITIONER (BY SRI DHYAN CHINNAPPA, SR. ADVOCATE A/W., SRI RAGHURAM CADAMBI, ADVOCATE) AND:
1. . STATE OF KARNATAKA REPRESENTED BY THE JEEVAN BHIMA NAGAR POLICE STATION JEEVAN BHIMA NAGAR MAIN ROAD LIC COLONY, HAL III STAGE SECTOR12 JEEVAN BHIMA NAGAR BENGALURU – 560 075. 2 . MS. JAHAN AARA4D/O MR. SYED AZEEZULLA AGED ABOUT42YEARS RESIDING AT FLAT NO.G-C ’REGENCY LA MAJADA’ -CALENDULA BLOCK NO.28/1, HENNUR MAIN ROAD BENGALURU – 560 043. ... RESPONDENTS (BY SRI THEJESH P., HCGP FOR R1; SRI S.SRIVATSA, SR. ADVOCATE A/W., SMT. UDITA RAMESH, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO A. QUASH THE COMPLAINT IN P.C.R.NO.51828/ 2021 FILED ON THE FILE OF THE X ADDL.C.M.M., MAYO HALL, BENGALURU (ANNEXURE-A) AND ALL PROCEEDINGS PURSUANT THERETO, INCLUDING THE FIR BEARING NUMBER CR.NO.0278/2022 DATED1212.2022 REGISTERED BY JEEVAN BHEEMANAGAR P.S. AND U/S354A), 107, 500, 506, 120(B) R/W34OF IPC. IN CRIMINAL PETITION No.743 OF2023BETWEEN: MR. PUNEET KUMAR S/O MR. S.L.KUMAR AGED ABOUT45YEARS HEAD GROUP FINANCE BANGALORE HUB NOW AT M/S. SWISS RE GLOBAL BUSINESS SOLUTIONS INDIA PRIVATE LIMITED EMBASSY GOLF LINK PARK, DOMLUR BENGALURU – 560 071. ... PETITIONER (BY SRI. UDAYA HOLLA, SR. ADVOCATE A/W., SRI POORNA CHANDRA B.PATTAR, ADVOCATE) 5 AND:
1. . STATE OF KARNATAKA THROUGH JEEVAN BHEEMA NAGAR POLICE STATION, HAL3D STAGE JEEVAN BHIMA NAGAR BENGALURU – 560 075 REPRESENTED BY STATE PUBLIC PROSECUTOR. 2 . MS. JAHAN AARA AGED ABOUT44YEARS D/O MR. SYED AZEEZULLA RESIDING AT FLAT NO.G-C REGENCY LA MAJADA CALENDULA BLOCK NO.28/1, HENNUR MAIN ROAD BENGALURU – 560 043. ... RESPONDENTS (BY SRI THEJESH P., HCGP FOR R1; SRI S.SRIVATSA, SR. ADVOCATE A/W., SMT. UDITA RAMESH, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO1AN
ORDERQUASHING THE FIR BEARING CR.NO.278/2022 DATED1212.2022 (ANNEXURE-B) REGISTERED BY THE RESPONDENT NO.1 PURSUANT TO AN
ORDEROF REFERENCE DATED1806.2022 (ANNEXURE-A) IN PCR.NO.51828/2021 BY THE X A.C.M.M AT BENGALURU AND ALL PROCEEDING ARISING THEREFROM. IN CRIMINAL PETITION No.1317 OF2023BETWEEN:
1. . MS. ROLI SINGH AGED ABOUT47YEARS D/O MR. RAJENDRA SINGH6SWISS RE GLOBAL BUSINESS SOLUTION PVT. LTD., HAVING ITS OFFICE AT2D TO5H FLOORS FAIRWINDS BUILDING EMBASSY GOLF LINKS BUSINESS PARK BENGALURU - 560 071. CURRENTLY RESIDING AT No.B307 SOLITAIRE RESIDENCY HENNUR BAGLUR MAIN ROAD BENGALURU - 560 077. 2 . MS. SHARDDHA MISHRA AGED ABOUT43YEARS W/O MR. PARESH MISHRA SWISS RE GLOBAL BUSINESS SOLUTION PVT. LTD., HAVING ITS OFFICE AT2D TO5H FLOORS FAIRWINDS BUILDING EMBASSY GOLF LINKS BUSINESS PARK BENGALURU - 560 071. CURRENTLY RESIDING AT FLAT No.B001 BREN PALMS, KUDLU ROAD BENGALURU - 560 068. 3 . MS. EKTA SANTUKA AGED ABOUT36YEARS W/O MR. SAURABH BANSAL SWISS RE GLOBAL BUSINESS SOLUTION PVT. LTD., HAVING ITS OFFICE AT2D TO5H FLOORS FAIRWINDS BUILDING7EMBASSY GOLF LINKS BUSINESS PARK BENGALURU - 560 071. CURRENTLY RESIDING AT NO.603B ASPEN GARDEN, SHIV SHANKAR NAGAR GOREGAON EAST, MUMBAI - 400 063. 4 . MS. FAISY SEBASTIAN AGED ABOUT40YEARS W/O MR. JOSE ANDREWS SWISS RE GLOBAL BUSINESS SOLUTION PVT. LTD., HAVING ITS OFFICE AT2D TO5H FLOORS FAIRWINDS BUILDING EMBASSY GOLF LINKS BUSINESS PARK BENGALURU - 560 071. CURRENTLY RESIDING AT NO.3/63 BETHANY LAKE VIEW LAYOUT KODATHI SULIKUNTE ROAD SARJAPURA ROAD BENGALURU - 560 035. 5 . MR. SHAJI THOMAS AGED ABOUT41YEARS S/O C.THOMAS SWISS RE GLOBAL BUSINESS SOLUTION PVT. LTD., HAVING ITS OFFICE AT2D TO5H FLOORS FAIRWINDS BUILDING EMBASSY GOLF LINKS BUSINESS PARK BENGALURU - 560 071. 8 RESIDING AT72 KONGUNAGAR NEW STREET RAMANATHAPURAM, COIMBATORE TAMIL NADU – 641 045. ... PETITIONERS (BY SRI SANDESH J.CHOUTA, SR. ADVOCATE A/W., SRI AIYAPPA K. G., ADVOCATE) AND:
1. . STATE OF KARNATAKA BY JEEVAN BHIMA NAGAR POLICE STATION, BENGALURU REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU - 560 001. 2 . MS. JAHAN AARA AGED ABOUT42YEARS DAUGHTER OF SYED AZEEZULLA RESIDING AT FLAT No.G-C, ’REGENCY LA MAJADA’ -CALENDULA BLOCK, No.28/1, HENNUR MAIN ROAD BENGALURU - 560 043. ... RESPONDENTS (BY SRI THEJESH P., HCGP FOR R1; SRI S.SRIVATSA, SR. ADVOCATE A/W., SMT. UDITA RAMESH, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASHING THE
ORDERDATED1806.2022 IN P.C.R.NO.51828/2021 PENDING ON THE FILE OF THE COURT X ADDL.C.M.M., MAYO HALL, BENGALURU (ANNEXURE-A) AND PRVIATE COMPLAINT DATED1904.2021 BEARING9PCR.NO.51828/2021 (ANNEXURE-B) AND ENTIRE PROCEEDINGS ARISING THEREFROM AS AGAINST THE PETITIONERS, INCLUDING THE FIR BEARING NUMBER CR.NO.278/2022 DATED1212.2022 U/S107 354A, 500, 506, 120(B) R/W34OF IPC (ANNEXURE-C). IN CRIMINAL PETITION No.1320 OF2023BETWEEN:
1. . MS. MARIA JANET MATHIAS AGED ABOUT43YEARS D/O MR. MARIA MARCEL MATHIAS WORKING FOR GAIN AT SWISS RE GLOBAL BUSINESS SOLUTION PVT LTD., HAVING ITS OFFICE AT2D TO5H FLOORS FAIRWINDS BUILDING EMBASSY GOLF LINKS BUSINESS PARK BENGALURU – 560 071. 2 . MS. SOWMYA BHAT AGED ABOUT46YEARS D/O LATE VENKANNA BHAT WORKING FOR GAIN AT SWISS RE GLOBAL BUSINESS SOLUTION PVT LTD., HAVING ITS OFFICE AT2D TO5H FLOORS FAIRWINDS BUILDING EMBASSY GOLF LINKS BUSINESS PARK BENGALURU – 560 071. ... PETITIONERS (BY SRI PRABHULING K.NAVADGI, SR. ADVOCATE A/W., SRI SUSHAL TIWARI N., ADVOCATE) 10 AND:
1. . STATE OF KARNATAKA BY JEEVAN BHIMA NAGAR POLICE STATION, BENGALURU REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU – 560 001. 2 . MS. JAHAN AARA AGED ABOUT42YEARS D/O SYED AZEEZULLA RESIDING AT FLAT No.G-C ’REGENCY LA MAJADA’ -CALENDULA BLOCK NO.28/1, HENNUR MAIN ROAD BENGALURU – 560 043. ... RESPONDENTS (BY SRI THEJESH P., HCGP FOR R1; SRI S.SRIVATSA, SR. ADVOCATE A/W., SMT. UDITA RAMESH, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASHING THE
ORDERDATED1806.2022 IN P.C.R.NO.51828/2021 PENDING ON THE FILE OF X ADDL.C.M.M., MAYOHALL, BENGALURU (ANNEXURE-A) AND PRIVATE COMPLAINT DATED1904.2021 BEARING PCR.NO.51828/2021 (ANNEXURE-B) AND ENTIRE PROCEEDINGS PCR.NO.51828/2021 ARISING THEREFROM AS AGAINST THE PETITIONERS, INCLUDING THE FIR BEARING NUMBER CR.NO.278/2022 DATED1212.2022 JEEVAN BHEEMANAGAR P.S., U/S107 354(A), 500, 506, 120(B) R/W34OF IPC (ANNEXURE-C). 11 IN CRIMINAL PETITION No.3289 OF2023BETWEEN: NOEL D’SOUZA AGED ABOUT37YEARS S/O DENZIL D’SOUZA SWISS RE GLOBAL BUSINESS SOLUTION PVT. LTD., HAVING ITS OFFICE AT2D TO5H FLOORS FAIRWINDS BUILDING EMBASSY GOLF LINKS BUSINESS PARK BENGALURU – 560 071. CURRENTLY RESIDING AT O5-03 1 SIMEI STREET3EAST POINT GREEN CANDO SINGAPORE – 529 890. ... PETITIONER (BY SRI GURU PRASAD C.REDDY, ADVOCATE) AND:
1. . STATE OF KARNATAKA BY JEEVAN BHIMA NAGAR POLICE STATION, BENGALURU REPRESENTED BY STATE PUBLIC PROSECTOR HIGH COURT COMPLEX BENGALURU – 560 001. 2 . MS. JAHAN AARA AGED ABOUT42YEARS DAUGHTER OF SYED AZEEZULLA RESIDING AT FLAT No.G-C12‘REGENCY LA MAJADA’ -CALENDULA BLOCK No.28/1, HENNUR MAIN ROAD BENGALURU – 560 043. ... RESPONDENTS (BY SRI THEJESH P., HCGP FOR R1; SRI S.SRIVATSA, SR. ADVOCATE A/W., SMT. UDITA RAMESH, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO SET ASIDE THE
ORDERDATED1806.2022 IN P.C.R.NO.51828/2021 PENDING ON THE FILE OF THE COURT X ADDL. C.M.M., MAYO HALL, BENGALURU (ANNEXURE-A) AND PRIVATE COMPLAINT DATED1904.2021 BEARING PCR.NO.51828/2021 (ANNEXURE-B) AND ENTIRE PROCEEDINGS ARISING THEREFROM AS AGAINST THE PETITIONER, INCLUDING THE FIR BEARING CR.NO.278/2022 DATED1212.2022 OF JEEVAN BHEEMANAGAR P.S., U/S107 354A, 500, 506, 120(B) R/W34OF IPC (ANNEXURE-C). IN CRIMINAL PETITION No.4646 OF2023BETWEEN: CAPTAIN MR. ARUN P.NAYAR S/O MR. V.P.NAYAR AGED ABOUT50YEARS HAVING LOCAL RESIDENCE AT FIB, KLASSIK NEST APARTMENTS19H MAIN, 27TH CROSS SECTOR2 HSR LAYOUT BENGALURU – 560 102. ... PETITIONER (BY SRI ABHILASH VAIDYANATHAN, ADVOCATE) 13 AND:
1. . STATE BY JEEVAN BHEEMANAGAR POLICE STATION, LIC COLONY HAL3D STAGE, SECTOR12JEEVAN BIMANAGAR BENGALURU – 560 075 REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. 2 . MS. JAHAN AARA D/O MR. SYED AZEEZULLA AGED ABOUT42YEARS RESIDING AT FLAT No.G-C ’REGENCY LA MAJADA’ -CALENDULA BLOCK NO.28/1, HENNUR MAIN ROAD BENGALURU – 560 043. ... RESPONDENTS (BY SRI THEJESH P., HCGP FOR R1; SRI S.SRIVATSA, SR. ADVOCATE A/W., SMT. UDITA RAMESH, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO A. SET ASIDE THE IMPUGNED
ORDERDATED1806.2022 (ANNEXURE A) PASSED BY THE LEARNED X ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, MAYO HALL BENGALURU REFERRING THE MATTER FOR INVESTIGATION. THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON0706.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 14 CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV
ORDERThe petitioners in all these cases are accused 1 to 12 in Crime No.278 of 2022 registered pursuant to a private complaint filed by the complainant/2nd respondent, for offences punishable under Sections 354(A), 107, 500, 506, 120B and 34 of the IPC. The complainant is the same. Therefore, all these petitions are taken up together and considered by this common order.
2. Shorn of unnecessary details, facts in brief germane, are as follows:- Before embarking upon noticing the facts, I deem it appropriate to notice respective petitions filed by the accused. Criminal Petition No.4476 of 2023 is preferred by accused No.4; Criminal Petition No.662 of 2023 by accused No.1; Criminal Petition No.743 of 2023 by accused No.3; Criminal Petition No.1317 of 2023 by accused Nos.5, 6, 8, 9 and 12; Criminal Petition No.1320 of 2023 by accused Nos. 10 and 11; Criminal Petition No.3289 of 2023 by accused No.7; Criminal Petition No.4646 of 2023 by accused 15 No.2, The conglomeration of these cases are by all the accused in a particular crime viz., Crime No.278 of 2022.
3. The backdrop of registration of crime, is that the petitioner in Criminal Petition No.4476 of 2023 is the Director and Head of Controlling and Reporting P & C EMEA at Swiss Reinsurance Company Limited, Zurich (‘the Company’ for short) having its office at Zurich Switzerland. The petitioner has been associated with the said Company for over 18 years now. It is averred that it is one of the world’s leading provider of insurance, re-insurance or insurance based risk transfer and has its presence across the world and headquartered at Zurich. The complainant is an employee in one of the units of the Company i.e., ‘Transition Accounting Services team’. She was its Vice-President having entered the team on 18-05-2017. In the course of normal functioning of the complainant, accused Nos.7 and 10 raised certain complaints against the style of functioning of the complainant, alleging violations of code of conduct and quoting instances of such violations which reached up to the powers that be in the Company. This results in a show cause notice being issued to the complainant 16 for allegations of fraud, forging of documents and un-professional conduct in the discharge of her duties. On 01-04-2019 the complainant replies to the show cause notice. The reply not being acceptable, results in termination of the services of the complainant on 24-04-2019 on the afore-quoted allegations. Again a reply was submitted by the complainant on 26-04-2019 to the termination letter, though it was a letter of termination and not a notice of termination, alleging that the committee failed to provide specific details of allegations against the complainant, which was in violation of the principles of natural justice, it was also contended that she was not accepting the termination letter and sought copies of several documents. On 08-05-2019 a senior Vice-president replied to the allegation of the complainant rejecting the reply and indicating that they had followed all the Rules and procedures and the termination was not in violation of law. She was given the entire settlement package by certain e-mail communications. 17
4. On 30-05-2019 the complainant files a civil suit in O.S.No.3834 of 2019 seeking damages and compensation for the illegal termination. During the subsistence of O.S.No.3834 of 2019, about 4 months later, she seeks to file a complaint alleging that she was sexually harassed by accused No.7 and accused No.8. The Police issued notice to the Managing Director to respond to the allegations as to whether there was a sexual harassment committee in the Company and what was the status of the complaint given by the complainant against accused Nos. 7 and 8. The reply was submitted that in terms of the law laid down by the Apex Court in VISHAKA V. STATE OF RAJASTHAN – (1997)6 SCC241 a committee is in place to investigate any complaint of sexual harassment. It was clarified that the complainant did not register any complaint of sexual harassment against accused Nos. 7 and 8 and her only grievance was with regard to termination. A non-cognizable report was drawn pursuant to the notice and the reply.
5. After waiting for 15 months, the complainant registers the impugned private complaint on 19-04-2021 arraigning several persons of Indian entities in the Company on the allegation that she 18 was sexually harassed by accused No.7 and all the accused conspired with accused No.7 to terminate her from the Company. There were 12 officers of the Company arrayed as accused. The learned Magistrate, refers the matter to the jurisdictional police for investigation, which becomes a crime in Crime No.278 of 2022 for the afore-noted offences.
6. Heard Sri Prabhuling K. Navadgi and Dhyan Chinnappa learned senior counsel appearing for the petitioners; Sri P.Thejesh, learned High Court Government Pleader appearing for respondent No.1 and Sri S.Srivatsa, learned counsel appearing for the 2nd respondent/complainant.
7. The learned senior counsel Sri Prabhuling K.Navadgi and Sri Dhyan Chinnappa representing the petitioners would in one voice contend that the very registration of the complaint is an abuse of the process of law. The reason that they contend so is that the complainant initially seeks to institute suit in O.S.No.3834 of 2019 against several of these accused seeking damages for the alleged illegal termination. The said suit comes to be dismissed on 19 18-04-2023 for want of cause of action and barred by law. The senior counsel would submit that this finding has become final. They would contend that, if there were sexual harassments of the complainant, she ought to have complained in the Company before the committee constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘the Act’ for short) when she was in employment. No such complaint was ever registered. After filing of the suit, criminal law is set in motion by lodging a complaint on 21-09-2019 against which a non-cognizable report is issued to the complainant. 15 months later comes the impugned complaint. On a perusal at the complaint the learned senior counsel would submit that it demonstrates clear abuse of the process of law. None of the instances that are narrated have even happened while the complainant was in employment with the Company. In all they would seek dismissal of the petition.
8. Per contra, the learned senior counsel representing the complainant would refute the submissions to contend that it is only a complaint now registered and the matter referred for investigation. This Court, in exercise of its jurisdiction under Section 20 482 of the CrPC, should not interfere at this stage. Complaint of this sort must at least be investigated, as ingredients of Section 354A of the IPC, according to the learned senior counsel, are completely met in the case at hand, in view of accused No.7 touching the complainant inappropriately and accused No.4 had failed to take any action and, therefore, there is complete violation of ingredients of Section 354A and other provisions invoked. He would submit that filing a complaint before the Internal Complaints Committee constituted under the Act is not a pre-condition to maintain a complaint before the learned Magistrate. He would further contend that accused No.7 is clearly alleged of offences, as there is clear allegation that he has touched her inappropriately, though there is delay in registering the complaint. The respective learned senior counsel have relied on several judgments of the Apex Court and that of other High Courts, all of which would bear consideration in the course of the order qua their relevance.
9. I have given my anxious consideration to the submissions made by the respective learned senior counsel and have perused the material on record. 21
10. The employment of the complainant with the Company is not in dispute. The termination of the services of the complainant from the Company is also not in dispute. The termination happens on 24-04-2019. It becomes germane to notice the letter of termination and the reason as obtaining in the letter of termination: “Ms. Jahan Aara, Emp No:1745 (hereinafter referred to as 'you') joined Swiss Re Global Business Solutions India Private Limited (hereafter referred to as the 'Company') on 18th May 2017 and as on this date designated as Head Transition Accounting Services Bangalore. Further to the show cause notice letter issued to you dated 27th March 2019, a detailed investigation was carried out to ascertain the charges reported against you. As an outcome of this investigation, the charges proven against you are with respect to breach of integrity with your CoYou2 claim and display of unprofessional behaviour, building a sense of fear / retaliation, display of favouritism hence compromising Swiss Re Values and Imperatives. Your Employment Agreement with the Company therefore, is hereby terminated with immediate effect, i.e. with effect from 24th April 2019 The Company will forward you the full and final settlement in due course of time. It is the policy of the Company to protect its trade secrets, customer lists and other confidential or proprietary information as vigorously as possible. We remind you that we consider our clients, our business procedures and our business plans to be proprietary. You are required to immediately surrender to the Company, all property and confidential or proprietary information belonging or relating to the Company or its affiliates. Please ensure that you take back with you all your personal belongings prior to leaving 22 office premises. The Company shall not be responsible or any property that you may have left behind. Please be reminded of your continuing obligations towards the Company and its affiliates, including but not limited to non- disclosure of confidential information, non-solicitation of Company personnel and protection of intellectual property and rights thereto, and as provided in your employment agreement. You must refrain from making or causing to be made, any disparaging, denigrating, derogatory or other negative, misleading and/or false statement about the Company or its business, either orally or in writing. For Swiss Re Global Business Solutions India Private Limited.” The termination comes about on 24-04-2019. The complainant then replies to the letter of termination. The reply dated 26-04-2019 reads as follows: “To, Swiss Re Global Business Solutions India Private Limited 2nd to 5th Floor, Fairwinds, Embassy Golf Links Business Park, Challaghatta Village, VarthurHobli, Bangalore East Taluk, Bangalore-560071 By registered post/email Kind Attention: Amit Kalra, Managing Director and Arun Nayar, HR Lead Re: Termination of Employment Ref: Letter of Termination of Employment dated 24th April, 2019 Show Cause Notice dated 27th March, 2019 Dear Mr. Kalra and Mr Nayar, 23 This is in reference to my employment as Head Transition Accounting Services Bangalore with Swiss Re Global Business Solutions India Private Limited ("Company") since 18th May, 2017 and the subsequent termination of my employment effective 24th April, 2019 on stigmatic grounds. I was issued a Show Cause Notice on 27th March, 2019 alleging various breach of policies and misconduct, including favouritism towards certain team members, power plays in internal selections, retaliation against employees, unprofessional conduct, aggressive behaviour, soliciting personal information, workplace harassment, etc. I was asked to come before the Shashakath Committee on 1st April, 2019 to provide my reply on the allegations made. I had orally denied all the allegations and had provided explanations on my end. However, despite my requests, the committee failed to provide me specific details of the allegations against me Including any evidence available to the Company on the basis of which the allegations were made. Per law and the principles of natural justice, where any investigation or disciplinary inquiry is held against an employee, the employee has a right to all the evidence that is found against him/her in order to comment on and provide explanations on the evidence. The allegations against me were vague and I was not provided the necessary information / specifics on the complaints/allegations/incidents which is a violation of law. For all the allegations made, there had to have been specific examples or incidents which I was not made aware of and therefore, my ability to provide a detailed and reasoned representation has been impaired which is a travesty of the principles of natural justice. I was not ailowed to comment on the evidence since it was not provided to me, examine any Company witnesses or even produce my own witnesses since I was not aware of exactly what allegations I was to counter. This is a gross violation of the principles of natural justice as well as the procedural requirements for conduct of an inquiry against an employee. Further I was required to sign a record of my oral submissions, however I was not provided a copy of the said document as is my legal right despite my repeated requests. 24 I was suddenly issued a Letter of Termination on 24th April, 2019 stating that the investigation by the Shashakath Committee was concluded and that the allegations against me were found to be true. I was not informed of the outcome of the investigation or provided a copy of the inquiry report in order to provide representations on the same, which once again is a violation of the procedural requirements for conduct of an inquiry. Also, I was asked to surrender all my Company issued assets including my laptop which contains data that is pertinent to the instant matter and that I am apprehensive that the same will be erased by the Company as is policy. In view of the above, I hereby refuse to acknowledge the inquiry conducted nor the termination letter issued to me on the grounds that my termination from employment is illegal and without merit. In order to terminate an employee on stigmatic grounds, it is mandatory for an employer to conduct a full disciplinary inquiry in accordance with law and principles of natural justice both of which have been blatantly violated in the present instance. The non-disclosure agreement I was asked to sign with Shashakath Committee now stands revoked from my end. I call upon the Company to comply with the following within three (3) days of receipt of this letter:
1. Provide me specific details and copies of all evidences which the Company has relied on to prove the allegations against me.
2. A copy of my signed written statement and the written record of the discussion had on 1st April, 2019 and 8th April, 2019.
3. A copy of the Inquiry Report submitted by the Shashakath Committee.
4. A copy of the supporting documents, if any, obtained by the Company to prove that my COYOU2 claim was against integrity.
5. Cancel the Termination Letter issued to me since the same is illegal and without merit. 25
6. Retain all the data that was available on my Company issued laptop since the same has all the documents/evidences needed to disprove the allegations against me. Please send me the soft copies of the above requested evidences to my email id [email protected], along with the hard copies via post to my residential address: Regency La-Majada, Calendula Block, Flat No: G-C, 28/1 Hennur Main Road, Bangalore-560043. In the event that you fail to comply with my requests, then I will be constrained to initiate legal action against you. Yours sincerely, Sd/- Jahan Aara” It is again replied to by the Company to the complainant. It reads as follows: “Swiss Re Swiss Re Global Business Solutions India Private Limited CIN: U74140KA2000PTC027640 Regd. Office:
2. d to 5th Floor, Fairwinds Building, Embassy Golf Links Business Park, Challaghatta Village, Varthur Hobli, Bangalore- 560071, India Email: Reach [email protected] Phone +91 80 4616 7000 www.swissre.com. Jahan Aara Regency La-Majada, 26 Calendula Block, Flat. No G-C281, Hennur Main Road, Bangalore-560043 8th May 2019 Ref.: Your letter dated 26th April 2019 Sub.: Letter of termination of employment dated 24th April 2019 as a result of the internal Investigation Coordination Process (ICP) Swiss Re as an organisation always stands for Integrity and strong moral and ethical standards. We as an organisation always demonstrate highest standards of integrity and our values mean being open, honest and transparent in everything we do, treating everyone with respect -both inside and outside the company, taking the long-term view, and playing our part in enabling sustainable progress - for stakeholders and society in general and creating an inclusive culture that encourages diversity of thought and opinion. Swiss Re as an organisation has a Code of Conduct and internal guidelines and policies, which every employee is obligated to adhere to. Swiss Re has zero tolerance for breach of Code of Conduct or Integrity and Company strongly condemns such breaches. The Company strongly denies the averments and allegations made by you in your letter dated 26th April 2019 and the same are baseless, frivolous and required to put to strict proof. The facts of the matter are, a formal complaint was raised against you by few of your team members citing workplace harassment and behavioural issues. As the allegations made in the formal complaint related to workplace harassment, the matter was handled in accordance with Swiss Re group's Investigation Coordination Process (ICP). An independent Internal Committee (IC) of unbiased and independent members comprising of the Head of Legal Bangalore, Head of Compliance Bangalore and senior HR resource from Bangalore was constituted and a detailed investigation was conducted by the IC to ascertain if the allegations made against you had any validity. 27 During investigation, the IC noticed few more irregularities concerning your CoYou2 subsidy claim. Basis the formal complaint, interviews were conducted, supported documents/evidences collated and statements recorded, most of the allegations including unprofessional conduct of unreasonable aggressive behavior, retaliatory behavior soliciting personal information, making insensitive personal comments, not playing the role of an inspiring leader by not creating a conducive work environment for team to work productively against you have been substantiated and therefore, as mandated by the ICP process Termination Letter dated 24th April 2019 has been issued. Please be informed, that the entire investigation has been conducted in accordance with law and all legal procedures/requirements have been adhered to. There has been no violation of natural justice at any step. If required, the same will be proved before relevant Court of law with necessary documentary evidences/proofs. Please note our pointwise responses to the documents/details requested: Point No 1- Please note that the documents/evidences which part of the ICP are legally privileged documents and in order to maintain confidentiality and protect interests of all concerned, the Internal Committee (IC) has the discretion not to share them with other Parties. However, if required, these will be produced before the relevant Court of law as admissible evidence. Point No 2- The signed copies of your statements were provided to the IC by you only vide your mail dated 15th April 2019. However, as desired by you, the same are being shared with you again. Point No 3- The Enquiry Report is a legally privileged document and as you are aware, the investigation was conducted under internal Investigation Coordination Process (ICP). We are not obligated to share the detailed report with you. However, if required, the 28 same will be produced as an admissible evidence before the relevant Court of law. Point No 4- As clearly highlighted during your discussion with IC on 8th April 2019, the documentary proofs submitted by yourself to claim COYou2 subsidy were forged/lake, as the details and specifications of the Product mentioned in the Invoice for payment and the proof of performance did not match. That specific product does not come with a performance proof sticker in entire India market, it clearly substantiates that you have submitted forged/fake proof for the same. This is a clear violation of Swiss Re Code of Conduct and breach of integrity. Since these documents have been submitted by yourself, the Company is under no obligation to share them again with you. However, if required, these will be produced before the relevant Court of law as admissible evidences. Point No 5- The Termination Letter dated 24th April 2019, has been issued as a result of formal and detailed investigation conducted on the allegations which have been substantiated, wherein your have clearly violated Company's Code of Conduct and internal Policies. As an organsation we have zero tolerance for breach of Integrity and Code of conduct and compromising Values and Imperatives. Your Employment Agreement was therefore terminated in accordance with "Clause 9a - termination for breach of code of conduct" and thus, our stand on the Termination Letter remains unchanged. Point No 6- Laptop issued by the Company to its employees to enable them to perform their duties during the course of their employment and any data/documents/details stored there at all times remains property of the Company and the Company has a sole discretion to manage these. Please note that actions initiated by the Company are in accordance with law and therefore any action initiated by you shall be at your own risk. In the event you initiate any further action against the Company, the same will be defended fervently by us at your sole risk as to cost and consequences. We may also consider approaching Institute of Chartered 29 Accountants of India (ICAI) to take necessary actions under code of ethics for their members. You are also advised to refrain from making or causing to be made, any disparaging, denigrating, derogatory or other negative, misleading and/or false statement about the Company or its business, either orally or in writing falling which, the Company will be forced to initiate strong legal action for defamation against you at your sole risk as to cost and consequences. For: Swiss Re Global Business Solutions India Private Limited Sd/- Sd/- Shraddha Mishra Arun Nayar Legal Counsel Sr. Vice President-Human Resources” Based upon this communication the complainant institutes a suit in O.S.No.3834 of 2019 before the civil Court for damages against several of the accused arraigning them as defendants. During the pendency of the said suit comes a complaint on 21-09-2019. On the said complaint, the Police issue a notice to the Managing Director on 11-12-2019. It reads as follows: “To, Managing Director Swiss Re Global Business Solutions India Private Limited Office at 2nd to 5th Floor, Embassy Golf Links Business Park Challaghatta Village, Varthur Bengaluru-560 071 30 This is to Inform you that one. Ms. Jahan Aara, who worked in your Company has lodged a complaint against Mr. Noel D'Souza and Ms. Ekta Santuka who are working in your Company stating that she has been sexually harassed by them while she was working in your Company on:
21. 09-2019 at East Zone. Women Police Station Shivajingar. Bangalore cily In NCR NO.579/2019. You are directed to respond on whether there is a Sexual Harassment Committee in your Company, if so what is the status of the Complaint given by Ms. Jahan Aara against Mr. Noel D'Souza and Ms. Ekta Santuka and you are required to provide any document or correspondence with respect to the said Complaint if any. Therefore you are hereby instructed to appear before the Women Police station East Zone. Bengaluru along with your employees Mr.Noel D'Souza and Ms. Ekta Santuka and with the above mentioned details on 14/11/2019 at 11:00 a.m. before the undersigned without fail. Sd/- POLICE SUB-INSPECTOR Women Police Station East Range, Bengaluru City Ph:
080. 22942585” The notice is replied to by the Company clarifying that a Committee to consider the cases of sexual harassment is in place and on the complaints against the complainant investigation was conducted and statement of all the persons involved were recorded and findings recorded thereto were communicated to the complainant. It was clarified that there was no complaint registered by the complainant in the Company leading to sexual harassment by co- employees. Noticing the fact that there was satisfactory explanation, the complaint was closed by recording a non- 31 cognizable report. The non-cognizable report was communicated to the complainant on 23-12-2019. 15 months later comes the impugned complaint. Since the complaint is very tactfully worded, I deem it appropriate to notice certain paragraphs of the complaint, as noticing them is germane for considering the issue in lis. They read as follows: “…. …. ….
5. Accused Nos 2, 3 and 4 are superior officers to whom the Complainant was reporting and have been in charge of and responsible for all matters connected with the employment of the Complainant.
6. Accused Nos 2 to 12 are persons who were working at the relevant time either as superiors of the Complainant or as her colleague of equal ranking or as her subordinate, under the control or /supervision of the Complainant, subject to the overall control of Accused 1 to 4.
7. Accused No:
3. who was a colleague of the 1st Accused in Gurgaon joined as Head of FinRe Unit on 01-11-2018 and from day one was abusive to the Complainant. He regularly made sexist and unwelcome remarks against the Complainant and inspite of the Complainant making oral complaints no action was taken against him.
8. Accused No:
3. was aware of the career vision of the Complainant of becoming a Chief Financial Officer and he did everything to destroy that ambition of the Complainant. Any complaint made by the Complainant that there was inefficiency in the HR Department used to be brushed aside by the Accused No:
3. who said that the Complainant was always finding fault with others. He used to then tell the concerned people of what was said by the Complainant and incite them against the Complainant. He realized that only 32 when he could get complaints against the Complainant from others could he launch his plan to remove the Complainant from the company in disgrace.
9. The 5th Accused was a close confidante of the 3rd Accused and aided and abetted him in his endeavours to defame and malign the Complainant. She and the 3rd Accused aided and abetted by Accused Nos 4, 6, 7, 8, 9 and 10 ensured that complaints were lodged by various staff members against the Complainant all to ensure that the Complainant was falsely defamed and terminated from the Company.
10. The 6th Accused is a designated Vice President and is the legal counsel of the Company. She reports to Accused 1 to 4 and is beholden to them. She follows all instructions given by Accused 1 to 4. She has at all times been aware of the sexual harassment of the Complainant and the threats held out to her and is part of the conspiracy between the Accused to terminate the services of the Complainant and worked with a common intention along with other accused and has aided and abetted them in the execution. She provides the veneer of legality to everything that is done in the matter of the Complainant.
11. The Accused No:
7. between early 2018 and till the Complainant left the Company used to subject her to unacceptable and inappropriate behavior/ conduct including but not limited to physical contact and advances involving unwelcome and explicit sexual overtures, of which all the Accused were aware but did nothing. Accused Nos 1 to 6 being in a superior position, though aware of the behavior of Accused No:
7. did nothing to protect the Complainant. Her complaints against Accused No:
7. both oral and written were just ignored.
12. The 7th Accused with the active assistance and connivance and approval of other Accused has inappropriately touched the Complainant and made lewd comments and sexually abused her verbally and non verbally and also intimated the Complainant whilst making such sexually inappropriate comments threatening her employment with the Company. 33
13. The Accused 1 to 5 being in a superior position failed to initiate action against the 7th Accused under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.
2013. They are complicit in the offences committed against the Complainant.
14. The Accused No:
7. committed acts of outraging the modesty of the Complainant and committed offences punishable under Section 354A(i) of the Indian Penal Code.
15. The Accused No:
7. also used to make death threats against the Complainant from time to time between early 2018 and the day when the Complainant left the services of the Company, threatened to ruin her reputation and see that she was removed from the Company, which at that time caused alarm in the Complainant and which were also within the knowledge of the other Accused. Accused Nos 1 to 5 being in a superior position, though aware of the behavior of Accused No:
7. did nothing to protect the Complainant. In fact they tacitly allowed the 7th Accused to continue with his inappropriate behavior and conduct and abusive behavior. Her complaints against Accused No:
7. both oral and written were just ignored. Accused No:
4. has committed the offence of criminal intimidation punishable under Section 506 of the Indian Penal Code.
16. The 8th Accused is close to the 7th Accused and have holidayed together in Europe. The 8th Accused has always been at loggerheads with the Complainant as the latter used to enforce rules. The 8th Accused therefore joined hands with the 7th Accused and others and became part of the conspiracy to defame and have the Complainant's employment terminated. She acted with common intention and aided and abetted the other Accused.
17. Accused No.9 is a lazy person who does not like to work long hours. She was in the habit of making unnecessary claims relatable to travel. She wanted the complainant to permit her to take time off without applying for leave. The complainant had repeatedly refused to permit the 9th Accused of doing what she wanted and taking advantage of this, the 3rd Accused included her in the conspiracy. The 9th Accused wanted to take revenge against the Complainant 34 and became involved in the conspiracy and worked with common intention and aided and abetted the other accused. She readily agreed and joined hands with the other accused knowing that what she was saying and doing was false and the harmful repercussions it would have on the Complainant.
18. Accused No.10 was jealous of the performance of the others and was constantly complaining. She had applied for a Team Leader position in the Asia Team but was rejected. She blamed the complainant for this. Accused No.3. the master mind used this dissatisfaction to recruit the 10th Accused in his team to carry out the common intention and conspiracy and defame the complainant and have her services terminated. The 10th Accused joined hands with Accused 7, 8 and 9 to carry out the directions of Accused 1,2,3,4,5, 11 and 12.
19. The Accused 1 to 12 defamed the Complainant in furtherance of their common intention to ensure that they could bring false charges against her and have her services terminated. The Accused persons were all trying to use the Company to further their careers, make money or take benefits by breaking or bending the rules and generally doing what they wanted. This was not possible with the Complainant monitoring them. The Accused therefore plotted and planned and executed a common intention to have the services of the complainant terminated. The Accused have committed an offence under Section 34 of the IPC.
20. Accused No.3 and 4 instigated the other accused to file complaints and give false evidence against the complainant and Accused No.1,2,3, 4 and 5 used their authority to prevent the complainant from having a fair hearing and finally getting accused No.6, 11 and 12 to give an investigation report recommending the termination of the Complainant. The Accused have aided and abetted each other and facilitated the commission of offences against the complainant within the meaning of Section 107 of The Indian Penal Code. 35
21. The Accused 4.7, 8, 9, and 10 are alleged to have given statement against the complainant as is evidenced by the report of the investigation committee dated 24.04.2019. The complainant states that the investigating committee gave its report on 24.04.2019 and on the same day she was terminated. There was apparently no discussion or decision on the recommendation on the investigation report clearly showing that Al to A12 had all along conspired and lost no time in terminating the employment of the Complainant.
22. The Accused persons agreed with each other to make allegations against her, all of which are criminal offences and are illegal and they were done knowing that the same would harm the character, reputation and career of the complainant and intending the said result should happen. The accused have committed an offence punishable under Section 120-B of the Indian Penal Code.
23. The Accused 4 to 11 under the guidance of Accused 1, 2 3 joined hands together to tarnish the reputation of the Complainant, accuse her falsely and then concocted a story and terminated her services from the company.
24. Accused 1 to 12 have conspired together to tarnish the reputation of the Complainant, defame her and falsely accuse her of forgery. Accused 1 to 12 have aided and abetted each other in the commission of the aforesaid offences. The Accused are punishable under Sections 34 and 1208 of the Indian Penal Code.
25. The offences committed by the Accused are all punishable with imprisonment for two years and hence the present complaint is within time prescribed by Section 468 of the Indian Penal Code.
26. The Accused are employed at Swiss Re Global Business Solutions Pvt Ltd which comes within the jurisdiction of the Jeevan Bhima Nagar Police Station and this Hon'ble Court has territorial jurisdiction over this matter.
27. The jurisdictional Police not having taken action, the Complainant has addressed the complaint to the 36 Commissioner of Police and sent it to him by RPAD. A copy of the complaint and postal acknowledgement are attached.
28. The complainant has with this complaint affidavit as required in Priyanka Srivastava Case. WHEREFORE the Complainant prays that this Hon'ble Court may be pleased to take cognizance and issue summonses to the Accused for offences punishable under Section, 354-A, 506 read with Section 34, 107 and 120-B of the Indian Penal Code and under the Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, in the interest of justice. BENGALURU sd/- DATED1904-2021 Jahan Aara”
(Emphasis added)The crux of the complaint is that accused No.1 is the Managing Director and is in-charge and responsible for day-to-day affairs of the Company. Accused 2, 3 and 4 are superior officers, against whom she was reporting. Accused No.3 is said to be aware of career vision of the complainant. Accused No.5 is said to be the close confidante of accused No.3 and has aided and defamed the complainant. The 6th accused is the Vice-President of legal cell of the Company and has nothing to do with the complainant. Accused No.7 is alleged of certain acts of sexual harassment. 37
11. It is the allegation that accused Nos.1 to 6 failed to initiate any action against accused No.7, on the allegation of sexual harassment, while it is admitted that no complaint was even registered under the Act. Accused No.9 is said to be a lazy person who does not like to work long hours and she has made the life of the complainant miserable. Accused Nos. 3 and 4 are said to have instigated other accused to file a complaint against her. In effect, all the accused have conspired, aided and abetted each other for commission of the offences. The learned Magistrate, as is done day-in and day-out, without even looking into the contents of the complaint, refers the matter for investigation, as even Section 500 of the IPC has been roped in, at the time of registration of the crime, which deals with defamation and the Police have admittedly no jurisdiction to enquire into the complaints of defamation. The reference becomes a crime in Crime No.278 of 2022. Immediately, thereafter, the petitioners are before this Court. There are 12 accused. The positions that each of the accused held in the Company is necessary to be noticed. Accused No.1 is the Managing Director; Accused No.2 is the Senior Vice-President and HR; Accused Nos. 3 and 4 are Directors; Accused No.5 is the Vice- 38 president-HR; Accused No.6 is the Company Secretary and Vice- President (Legal Cell); Accused Nos. 7, 8, 9 and 10 are the Assistant Vice-Presidents; Accused No.11 is the HR Business Partner and Accused No.12 is the Compliance Officer. The offences alleged are now necessary to be noticed.
12. The offences alleged are under Sections 354A and 506 of the IPC. Section 354A reads as follows: “354-A. Sexual harassment and punishment for sexual harassment.—(1) A man committing any of the following acts— (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.” 39 The section deals with sexual harassment and punishment for sexual harassment. Physical contact and advances involving unwelcome and explicit sexual overtures is the one that would fit into the complaint. This requires foundational allegation of physical contact. Physical contact is alleged only against accused No.7, one Mr. Noel D’Souza to whom the complainant is said to have been reporting in the Company. It is ununderstandable as to how every person is roped into the web of crime, despite the allegation being only against accused No.7.
13. The complaint quoted hereinabove is tactfully worded, but no where it indicates that there is any allegation against any other accused. Whoever comes to the mind of the complainant is drawn into the umbrella of crime and the complainant is now wanting to hold the shaft of the umbrella of crime to get the investigation done against these petitioners. In the considered view of this court, the action of the complainant in registering the complaint cannot but be held to be counter-blast to all the actions the complainant was meted out by the Company, for her own acts. The charges were laid, they were said to be proved and she is terminated from the 40 services of the Company. For having terminated, the officers of the Company who are not even involved in any of the allegations are brought under the web of crime.
14. The learned Magistrate, though does not require to give elaborate reasons at the time of reference under Section 156(3) CrPC, nonetheless, it should bear atleast a semblance of application of mind. He ought to have noticed the frivolousness shrouded to the facts of the complaint except qua accused No.7. If at all the complainant was sexually assaulted or harassed, at the outset she should have complained in the organization for it to be placed before the Committee constituted under the Act. Though for an offence under Section 354A of the IPC, this is not a pre-requisite, the facts obtaining in the case at hand would clearly indicate that in an action which points at accused No.7 only, all sundry are dragged into the web of crime in a very well drafted complaint. Reading the complaint between the lines would clearly indicate that the complaint itself is registered to wreck vengeance against all of them, who did not have any role to play for the ingredients in the complaint. It is in such circumstances, the Apex Court directs this 41 Court to read between the lines and analyse the complaint to see whether it is a cloak to settling personal scores. The subject case forms a classic illustration as what the Apex Court has elucidated in the case of MAHMOOD ALI v. STATE OF U.P.1, wherein the Apex Court has held as follows: “…. …. … 13. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of 1 2023 SCC OnLine SC95042 the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.” (Emphasis supplied) The Apex Court holds that the High Court exercising jurisdiction under Section 482 of the Cr.P.C. is required to read between the lines, look into the attendant circumstances and then arrive at a conclusion as to whether further investigation should be permitted or not. The Apex Court observes several instances where crimes are registered either to wreck vengeance as a counterblast or civil cases being projected as a crime inter alia. One such instance is in the case at hand which can be termed as a counterblast to wreck vengeance. Therefore, this Court has undertaken the exercise of reading between the lines and the attendant circumstances which have led to registration of private complaint and on reading between the lines, what is discernible is an unmistakable conclusion that blatant abuse of the process of law by the complainant in 43 registering the private complaint itself, as none of the ingredients of Section 354A of the IPC are even met qua all the accused, except accused No.7. The complaint narrates that accused No.7 had indulged in sprinkling ingredients of Section 354A of IPC.
15. The other offence alleged is Section 506 of the IPC. Section 506 has its ingredients in Section 503 of the IPC. It deals with criminal intimidation. What is criminal intimidation is self- explanatory as is found in Section 503. None of the ingredients of Section 503 of the IPC are even present in the case at hand. The other offences are under Sections 120B and 107 of the IPC. There is not even a titter of ingredient necessary even proved of abetment or criminal conspiracy. As observed hereinabove, the specific allegations against accused No.7 are found at paragraphs 11, 12 and 15 of the complaint of the complainant. Whether they require investigation or not, as it is an offence punishable under Section 354A IPC which could touch upon outraging the modesty of a woman, needs to be investigated. It becomes apposite to notice the judgment of the Apex Court in the case of RUPAN DEOL44BAJAJ v. KANWAR PAL SINGH GILL2 wherein the Apex Court has held as follows: “… … … 12. Sequentially summarised the statements and allegations as contained in the earlier quoted three paragraphs of the FIR would read thus: (i) Around 10 p.m. Dr Chutani and Shri Gill walked across to and sat in the ladies' circle; (ii) Mrs Bajaj, who was then talking to Mrs Bijlani and Mrs Bhandari, was requested by Mr Gill to come and sit near him as he wanted to talk to her about something; (iii) Responding to his such request when Mrs Bajaj went to sit in a chair next to him Mr Gill suddenly pulled that chair close to his chair; (iv) Feeling a bit surprised, when she put that chair at its original place and was about to sit down, Mr Gill again pulled his chair closer; (v) Realising something was wrong she immediately left the place and went back to sit with the ladies; (vi) After about 10 minutes Shri Gill came and stood in front of her so close that his legs were about 4″ from her knees; (vii) He then by an action with the crook of his finger asked her to “get up immediately” and come along with him; (viii) When she strongly objected to his behaviour and asked him to go away from there he repeated his earlier command which shocked the ladies present there; (ix) Being apprehensive and frightened she tried to leave the place but could not as he had blocked her way; (x) Finding no other alternative when she drew her chair back and turned backwards, he slapped her on the posterior in the full presence of the ladies and guests.
13. Coming now to the moot point as to whether the above allegations constitute any or all of the 2 (1995) 6 SCC19445 offences for which the case was registered, we first turn to Sections 354 and 509 IPC, both of which relate to modesty of woman. These sections read as under: “354. 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. *** 509. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
14. Since the word ‘modesty’ has not been defined in the Penal Code, 1860 we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct”. The word ‘modest’ in relation to woman is defined in the above dictionary as “decorous in manner and conduct; not forward or lewd; shamefast”. Webster's Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.) the meaning of the word ‘modesty’ is given as “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”. 46
15. In State of Punjab v. Major Singh [AIR1967SC63:
1967. Cri LJ1:
1966. Supp SCR286 a question arose whether a female child of seven and a half months could be said to be possessed of ‘modesty’ which could be outraged. In answering the above question Mudholkar, J., who along with Bachawat, J.
spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat, J.) observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this Court in Major Singh case [AIR1967SC63:
1967. Cri LJ1:
1966. Supp SCR286 it appears to us that the ultimate test for ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr Gill in slapping Mrs Bajaj on her posterior amounted to “outraging of her modesty” for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady — “sexual overtones” or not, notwithstanding.
16. It was however strenuously urged by Mr Tulsi, that even if it was assumed that Mr Gill had outraged the modesty of Mrs Bajaj still no offence under Section 354 IPC could be said to have been committed by him for the other ingredient of the offence, namely, that he intended to do so was totally lacking. He urged that the culpable intention of the offender in committing the act is the crux of the matter and not the consequences thereof. To buttress his contention he invited our attention to the following passage from the judgment of 47 this Court in Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC602:
1994. SCC (Cri) 1087]. (one of us, namely Anand, J.
was a party): (SCC pp. 623-24, para
15) “Thus the true ambit and scope of Section 3(1) is that no conviction under Section 3(1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by Section 3(1) by means of the weapons etc. as enumerated in the section and was committed with the motive as postulated by the said section. Even at the cost of repetition, we may say that where it is only the consequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was not committed with the intention as envisaged by Section 3(1) to achieve the objective as envisaged by the section, an accused should not be convicted for an offence under Section 3(1) of TADA. To bring home a charge under Section 3(1) of the Act, the terror or panic etc. must be actually intended with a view to achieve the result as envisaged by the said section and not be merely an incidental fall-out or a consequence of the criminal activity. Every crime, being a revolt against the society, involves some violent activity which results in some degree of panic or creates some fear or terror in the people or a section thereof, but unless the panic, fear or terror was intended and was sought to achieve either of the objectives as envisaged in Section 3(1), the offence would not fall stricto sensu under TADA.
17. It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally true that those ingredients being states of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. Since, however, in the instant case we are only at the incipient stage we have to ascertain, only prima facie, whether Mr Gill by slapping Mrs Bajaj on her posterior, in the background detailed by her in the FIR, intended to outrage or knew it to be likely that he would thereby outrage her modesty, which is one of the essential 48 ingredients of Section 354 IPC. The sequence of events which we have detailed earlier indicates that the slapping was the finale to the earlier overtures of Mr Gill, which considered together, persuade us to hold that he had the requisite culpable intention. Even if we had presumed he had no such intention he must be attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the society — as the names and designations of the people given in the FIR indicate. While on this point we may also mention that there is nothing in the FIR to indicate, even remotely, that the indecent act was committed by Mr Gill, accidentally or by mistake or it was a slip. For the reasons aforesaid, it must also be said that — apart from the offence under Section 354 IPC — an offence under Section 509 IPC has been made out on the allegations contained in the FIR as the words used and gestures made by Mr Gill were intended to insult the modesty of Mrs Bajaj.” (Emphasis supplied) Several submissions are made by the learned senior counsel for the petitioners contending that without filing a complaint before the Internal Complaints Committee, the impugned complaint cannot be maintained. This submission is sans substance, as it does not detain this Court for long or delve deep into the matter. The High Court of Madras in Dr. S.MURUGAN v. STATE OF TAMIL NADU3 has held as follows:
3. 2019 SCC OnLine Mad. 519 49 “…. …. ….
26. The learned counsel for Smt. H. Jayalakshmi reiterated that under Section 19(g) of the Act, it is the duty of the employer and therefore, they have no option except to register an First Information Report and proceed with the investigation as per the Code of Criminal Procedure. Thus, the writ petition filed by Dr. S. Murugan is liable to be dismissed. … … ..
76. Straight reading of the provisions of the Sexual Harassment Act, Section 19(g) is unambiguous in respect of the assistance to be provided by the employer. It stipulates that it is the duty of the employer to provide assistance to the woman, if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force. The very object of incorporating such a provision as a duty to the employer by the Legislators are that there may be some circumstances for a woman to realise that the offence of sexual harassment committed by a person is of such a nature warranting a criminal action. A woman, who is inside the official chamber of a higher level official alone may have the knowledge about the nature of the offence committed by the person against whom the complaint is made. That is the reason why the Courts have consistently held that the statement of a woman under those circumstances in a private place must be taken as it is as a first information and appropriate actions and investigations must be set in motion. … … … 102. The learned counsel, appearing on behalf of Smt. H. Jayalakshmi, further solicited the attention of this Court with reference to Section 28 of the Women Harassment Act, which stipulates “Act not in derogation of any other law”. Accordingly, the 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. Therefore, it is unambiguous that the action under the Sexual Harassment Act by the employer is independent and the complaint registered under the Indian Penal Code 50 is also independent. In other words, two fold actions are permissible with reference to the sexual harassment complaint. The employer is empowered to constitute the Internal Complaints Committee under Section 4 of the Act and proceed with the enquiry and based on the report, initiate all further actions under the provisions of the Act as well as under the Service Rules in force, more specifically, under the Conduct and Discipline Rules.” (Emphasis supplied) I am in complete agreement with what the High Court of Madras has held that, to maintain a complaint under Section 354A of the IPC, it is not a pre-condition that a complaint should be registered before the appropriate Internal Complaints Committee, as nothing in the Act depicts that any complaint can be registered only after a proceeding under the Act. Setting the criminal law into motion is not controlled by the provisions of the Act. Therefore, the said ground is noted only to be rejected. In the light of the preceding analysis, permitting further investigation / proceedings qua accused Nos.1 to 6 and 8 to 12 would on the face of it become an abuse of the process of the law and result in patent injustice. While the same cannot be said about accused No.7, who appears to have indulged in certain ingredients which would become an offence under Section 354A of the IPC. Therefore, investigation should 51 necessarily be permitted qua accused No.7. Criminal Petition preferred by accused No.7 at this juncture is sans entertainment.
16. For all the aforesaid reasons, the following:
ORDER(i) Criminal petitions preferred by accused Nos. 1 to 6 and 8 to 12 in Criminal Petition Nos. 4476, 662, 743, 1317, 1320, and 4646 of 2023 are allowed and the crime registered in Crime No.278 of 2022 stands quashed qua these accused. (ii) Criminal Petition preferred by accused No.7 in Criminal Petition No.3289 of 2023 is rejected. Interim order, if any operating, shall stand dissolved. Further investigation shall continue against accused No.7. 52 (iii) It is open to accused no.7 to knock at the doors of the appropriate fora, once investigation gets concluded for appropriate relief. (iv) It is made clear that the observations made in the course of the order are only for the purpose of consideration of cases of petitioners under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings pending before 10th Additional Chief Metropolitan Magistrate, Bengaluru against accused No.7. Sd/- (M. NAGAPRASANNA) JUDGE bkp CT:SS