Point of Law: Practice and Procedure - Sexual harassment at work place -There is no provision in Cr.P.C. to amend criminal complaint, but amendment can be allowed if amendment is sought before taking cognizance per S.R. Sukumar vs. S. Sunaad Raghuram, 2015 (9) SCC 609.

JUDGMENT :

YOGESH KHANNA, J.

Crl. M.A. No. 12577/2020 and 12579/2020 in Crl. M.C. No. 3492/2013

1. This petition is filed challenging the summoning order dated 20.04.2013 as well as quashing of the complaint bearing No. 584/1/10. The petitioner has also filed an application for amendment dated 08.09.2020 challenging the order dated 26.02.2020 whereby the Court directed to issue notice against the petitioner for the offences under Section 500/501/502 read with Section 120B IPC.

2. The brief facts of the case are India Today magazine in its edition dated 30.04.2007 had published a news item under the title Mission Misconduct.

3. The news item asserts allegations of soliciting sexual favour leading to a probe which revealed financial irregularities and fudging of bills. Consequently, the official is back in India and is facing disciplinary action.

4. It is argued in relation to the financial irregularities and fudging of bills, disciplinary action had taken place and vide order dated 19.02.2009, the respondent No. 2/complainant was found guilty and 20% cut in his pension was ordered. This was challenged by complainant by an OA before the Central Administrative Tribunal which had upheld the disciplinary authority’s order vide order dated 02.03.2010. The order of CAT was unsuccessfully challenged by the respondent in a Writ Petition before a Division Bench of this Court and the same was rejected vide order dated 26.07.2011.

5. It is also argued in relation to his return to India, the complainant admits in Para 2 and 19 of his complaint on 08.03.2007 he was directed to come back to India. The CAT order dated 02.03.2010 records he had come back to India on 20.03.2007. The subsequent order dated 21.03.2007 notes the complainant is now the Director, Ministry of External Affairs, New Delhi and is placed under suspension. His suspension continued till the date of his retirement on 31.01.2008.

6. In relation to the allegation of solicitation of sexual favours, the complainant admits on 10.07.2005 and 05.03.2007. A-12 (Ms. Panchali Bari) had made two complaints against the complainant alleging sexual harassment. These two complaints were admittedly made prior to the date of publication of the news item and have been placed on record by the complainant.

7. On the basis of the complaints, a Memorandum of Charge was also admittedly issued to the complainant. The memorandum of charge dated 21.05.2007 specifically, asserts sexual harassment at workplace. However, by letter dated 04.04.2008 and 20.06.2008 and finally by the note dated 20.08.2010 the complaint of sexual harassment was closed. It is argued at the time of the news item the allegation of sexual harassment was made and steps were taken for disciplinary proceedings and the news item dated 30.04.2007 only reported a fact which was in public record.

8. It is argued the Learned Trial Court vide order dated 20.04.2013 had summoned only A1 to A4, A8 and A12 without adhering to Section 196(2)/197 Cr.P.C. as A3, A4, A8 and A12 were public servants. Even section 202 Cr.P.C. was ignored on 03.09.2015. A12 was dropped from the present proceedings on the prayer of the complainant. Therefore, once the maker of the allegation of sexual harassment is not been proceeded with, the persons in alleged conspiracy cannot also be proceeded with.

9. Thus, arguments of the petitioner is threefold a) as per Section 7 of Press and Registration of Books Act, 1867, normally an editor, printer can only be prosecuted. The petitioner herein is the editor-in-chief and therefore could never be prosecuted. The news item itself shows the petitioner herein is editor-in-chief and not an editor. In support of this submission, the learned senior counsel for the petitioner has referred to various judgments viz. State of Maharashtra vs. RB Chowdhari, AIR 1968 SC 110, Haji C.H. Mohammad Koya vs. T.K.S. M.A. Muthukoya, 1979 (2) SCC 8, K.M. Mathew vs. State of Kerala, 1992 (1) SCC 217, S. Nihal Singh vs. Arjan Das, 1983 Crl. L.J. 777 and