Karnataka High Court
Noel D Souza vs State Of Karnataka on 9 August, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 07.06.2024
Pronounced on : 09.08.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No. 4476 OF 2023
C/W
CRIMINAL PETITION No. 662 OF 2023
CRIMINAL PETITION No. 743 OF 2023
CRIMINAL PETITION No. 1317 OF 2023
CRIMINAL PETITION No. 1320 OF 2023
CRIMINAL PETITION No. 3289 OF 2023
CRIMINAL PETITION No.4646 OF 2023
IN CRIMINAL PETITION No. 4476 OF 2023
BETWEEN:
MS. SABINE BAECHLER
AGED ABOUT 47 YEARS
D/O MR. KANIS BAECHLER
R/AT BIRCHSTRASSE 184, 8050
ZURICH, SWITZERLAND
EMPLOYED AS DIRECTOR
HEAD CONTROLLING AND
REPORTING P AND C EMEA
SWISS REINSURANCE COMPANY LIMITED
SWISS RE NEXT
MYTHENQUAI 50/60
8022 ZURICH
2
SWITZERLAND
... 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, HAL 3RD STAGE
JEEVAN BHIMA NAGAR
BENGALURU - 560 075
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. MS. JAHAN AARA
AGED ABOUT 42 YEARS
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 SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 18.06.2022 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 DATED 19.04.2021 BEARING
PCR.NO.51828/2021 (ANNEXURE-B) AND QUASH THE ENTIRE
3
PROCEEDINGS ARISING THEREFROM AS AGAINST THE
PETITIONER, INCLUDING THE FIR BEARING CR.NO.0278/2022
DATED 12.12.2022 OF JEEVAN BHEEMANAGAR P.S., U/S 107,
354A, 500, 506, 120(B) R/W 34 OF IPC (ANNEXURE-C).
IN CRIMINAL PETITION No. 662 OF 2023
BETWEEN:
MR. AMIT KALRA
S/O MR. LALIT KALRA
AGED ABOUT 42 YEARS
HAVING HIS PLACE OF WORK AT
SWISS RE GLOBAL BUSINESS SOLUTIONS
INIDIA PRIVATE LIMITED
2ND TO 5TH 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
SECTOR 12, JEEVAN BHIMA NAGAR
BENGALURU - 560 075.
2. MS. JAHAN AARA
4
D/O MR. SYED AZEEZULLA
AGED ABOUT 42 YEARS
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 SECTION 482 OF
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 DATED 12.12.2022 REGISTERED BY JEEVAN
BHEEMANAGAR P.S. AND U/S 354(A), 107, 500, 506, 120(B) R/W
34 OF IPC.
IN CRIMINAL PETITION No. 743 OF 2023
BETWEEN:
MR. PUNEET KUMAR
S/O MR. S.L.KUMAR
AGED ABOUT 45 YEARS
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, HAL 3RD STAGE
JEEVAN BHIMA NAGAR
BENGALURU - 560 075
REPRESENTED BY
STATE PUBLIC PROSECUTOR.
2. MS. JAHAN AARA
AGED ABOUT 44 YEARS
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 SECTION 482 OF
CR.P.C., PRAYING TO 1.AN ORDER QUASHING THE FIR BEARING
CR.NO.278/2022 DATED 12.12.2022 (ANNEXURE-B) REGISTERED
BY THE RESPONDENT NO.1 PURSUANT TO AN ORDER OF
REFERENCE DATED 18.06.2022 (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 OF 2023
BETWEEN:
1. MS. ROLI SINGH
AGED ABOUT 47 YEARS
D/O MR. RAJENDRA SINGH
6
SWISS RE GLOBAL BUSINESS
SOLUTION PVT. LTD.,
HAVING ITS OFFICE AT
2ND TO 5TH 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 ABOUT 43 YEARS
W/O MR. PARESH MISHRA
SWISS RE GLOBAL BUSINESS
SOLUTION PVT. LTD.,
HAVING ITS OFFICE AT
2ND TO 5TH 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 ABOUT 36 YEARS
W/O MR. SAURABH BANSAL
SWISS RE GLOBAL BUSINESS
SOLUTION PVT. LTD.,
HAVING ITS OFFICE AT
2ND TO 5TH FLOORS
FAIRWINDS BUILDING
7
EMBASSY 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 ABOUT 40 YEARS
W/O MR. JOSE ANDREWS
SWISS RE GLOBAL BUSINESS
SOLUTION PVT. LTD.,
HAVING ITS OFFICE AT
2ND TO 5TH 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 ABOUT 41 YEARS
S/O C.THOMAS
SWISS RE GLOBAL BUSINESS
SOLUTION PVT. LTD.,
HAVING ITS OFFICE AT
2ND TO 5TH FLOORS
FAIRWINDS BUILDING
EMBASSY GOLF LINKS
BUSINESS PARK
BENGALURU - 560 071.
8
RESIDING AT 7/2
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 ABOUT 42 YEARS
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 SECTION 482 OF
CR.P.C., PRAYING TO QUASHING THE ORDER DATED 18.06.2022
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 DATED 19.04.2021 BEARING
9
PCR.NO.51828/2021 (ANNEXURE-B) AND ENTIRE PROCEEDINGS
ARISING THEREFROM AS AGAINST THE PETITIONERS, INCLUDING
THE FIR BEARING NUMBER CR.NO.278/2022 DATED 12.12.2022
U/S 107, 354A, 500, 506, 120(B) R/W 34 OF IPC (ANNEXURE-C).
IN CRIMINAL PETITION No. 1320 OF 2023
BETWEEN:
1. MS. MARIA JANET MATHIAS
AGED ABOUT 43 YEARS
D/O MR. MARIA MARCEL MATHIAS
WORKING FOR GAIN AT
SWISS RE GLOBAL BUSINESS
SOLUTION PVT LTD.,
HAVING ITS OFFICE AT
2ND TO 5TH FLOORS
FAIRWINDS BUILDING
EMBASSY GOLF LINKS BUSINESS PARK
BENGALURU - 560 071.
2. MS. SOWMYA BHAT
AGED ABOUT 46 YEARS
D/O LATE VENKANNA BHAT
WORKING FOR GAIN AT
SWISS RE GLOBAL BUSINESS
SOLUTION PVT LTD.,
HAVING ITS OFFICE AT
2ND TO 5TH 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 ABOUT 42 YEARS
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 SECTION 482 OF
CR.P.C., PRAYING TO QUASHING THE ORDER DATED 18.06.2022
IN P.C.R.NO.51828/2021 PENDING ON THE FILE OF X
ADDL.C.M.M., MAYOHALL, BENGALURU (ANNEXURE-A) AND
PRIVATE COMPLAINT DATED 19.04.2021 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 DATED 12.12.2022 JEEVAN BHEEMANAGAR P.S.,
U/S 107, 354(A), 500, 506, 120(B) R/W 34 OF IPC (ANNEXURE-C).
11
IN CRIMINAL PETITION No. 3289 OF 2023
BETWEEN:
NOEL D'SOUZA
AGED ABOUT 37 YEARS
S/O DENZIL D'SOUZA
SWISS RE GLOBAL BUSINESS
SOLUTION PVT. LTD.,
HAVING ITS OFFICE AT
2ND TO 5TH FLOORS
FAIRWINDS BUILDING
EMBASSY GOLF LINKS BUSINESS PARK
BENGALURU - 560 071.
CURRENTLY RESIDING AT O5-03
1 SIMEI STREET 3
EAST 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 ABOUT 42 YEARS
DAUGHTER OF SYED AZEEZULLA
RESIDING AT FLAT NO. G-C
12
'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 SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 18.06.2022 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 DATED 19.04.2021 BEARING
PCR.NO.51828/2021 (ANNEXURE-B) AND ENTIRE PROCEEDINGS
ARISING THEREFROM AS AGAINST THE PETITIONER, INCLUDING
THE FIR BEARING CR.NO.278/2022 DATED 12.12.2022 OF JEEVAN
BHEEMANAGAR P.S., U/S 107, 354A, 500, 506, 120(B) R/W 34 OF
IPC (ANNEXURE-C).
IN CRIMINAL PETITION No.4646 OF 2023
BETWEEN:
CAPTAIN MR. ARUN P.NAYAR
S/O MR. V.P.NAYAR
AGED ABOUT 50 YEARS
HAVING LOCAL RESIDENCE AT
FIB, KLASSIK NEST APARTMENTS
19TH MAIN, 27TH CROSS
SECTOR 2, HSR LAYOUT
BENGALURU - 560 102.
... PETITIONER
(BY SRI ABHILASH VAIDYANATHAN, ADVOCATE)
13
AND:
1. STATE BY JEEVAN BHEEMANAGAR
POLICE STATION, LIC COLONY
HAL 3RD STAGE, SECTOR 12
JEEVAN 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 ABOUT 42 YEARS
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 SECTION 482 OF
CR.P.C., PRAYING TO A. SET ASIDE THE IMPUGNED ORDER DATED
18.06.2022 (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 ON 07.06.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The 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 SCC 241, 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: 2nd 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-C
28/1, 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/-
DATED 19-04-2021 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 SC 950
42
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 DEOL
44
BAJAJ 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 SCC 194
45
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 [AIR 1967
SC 63 : 1967 Cri LJ 1 : 1966 Supp SCR 286] 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 [AIR 1967 SC 63 : 1967 Cri LJ 1 : 1966 Supp
SCR 286] 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 SCC 602 : 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