ICC report in sexual harassment cases is often biased, need not mark end of criminal case: Kerala High Court

The Kerala High Court recently flagged concern that the findings of Internal Complaints Committees (ICC) constituted under the Prevention of Sexual Harassment Act (PoSH Act) to examine sexual harassment complaints are often unilateral and biased to favour the institution in which the complaint arises.

Justice A Badharudeen, therefore, emphasised that 'clean chits' by ICCs cannot be taken at face value and need not mark the end of criminal proceedings (police case) initiated on allegations of sexual harassment.

"It is shocking to note that majority of the ICC reports, I came across, are of unilateral and biased nature, favouring the majority of the institutions, and as such the credence of the ICC report is matter subject to thorough check and scrutiny to believe and act upon. Thus it is held that the report of the ICC is not the final word in so far as the allegations otherwise made before the police from the work place and for which crime was registered and investigated leading to final report", the Court said.

The Court further observed that the PoSH Act's provisions is meant to be in addition to existing laws, as outlined in Section 28. Therefore, an ICC report cannot undermine a valid police investigation in workplace harassment cases, it explained.

"(When) the aggrieved person directly makes a complaint to the police, police registers crime, conducts investigation and files final report finding commission of the offences alleged, the ICC report or its finding against the police report has no bearing on the prosecution case", the Court said.

The Court made these observations while dismissing a college head's plea to quash a criminal case registered against him on allegations of sexual harassment.

The petitioner/ accused had been accused of repeatedly making inappropriate remarks and demanding sexual favours from a female professor (complainant), while he was given the charge of college principal and head of a department.

According to the complaint, the accused used phrases with double meanings and threatened to take actions that affected the complainant's career.

The complainant, therefore, filed a criminal case citing the offences under Sections 354-A (sexual harassment), 354-D (stalking), and 509 (insult to the modesty of a woman) of the Indian Penal Code, as well as Section 119(A) of the Kerala Police Act. A chargesheet was also eventually filed in the matter by the police.

The accused proceeded to file a petition urging the High Court to quash this criminal case.

Notably, he relied on an ICC report that had previously dismissed the sexual harassment allegations against him as unsubstantiated. He contended that the ICC’s findings were final, and cleared him of any wrongdoing.

The State countered that the ICC's report was prepared without recording the complainant's testimony. The State added that there were witness statements from teachers working in the same college that established a prima facie case against the petitioner.

After considering the rival arguments, the Court dismissed the petition and allowed the criminal proceedings to continue.

It also criticised the ICC for dismissing the sexual harassment allegations without recording the complainant’s statement and only by interviewing a few select staff.

"I do not think that ICC report, prepared without even recording the statement of the victim, could supersede the prosecution records to disbelieve the same," the Court said.

The petitioner was represented by advocates Sreekanth S Nair and Sandeep P Johnson, while the State was represented by Public Prosecutor MP Prasanth.

[Read Order]