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Sudhanshu Chandra and Akshay Kumar
In the context of the Me Too movement, nobody can prevent any person from making accusations of sexual harassment, irrespective of the lapse of time since the alleged incident. However, in most of the Me Too accusations appearing in the media, police complaints would not be legally tenable, generally speaking.
This is so because, insofar as filing of criminal complaints is concerned, there is a period of limitation prescribed under law. This limitation varies for different kinds of offences.
As per Section 468(2) of the Code of Criminal Procedure, the limitation periods for taking cognizance of complaints under provisions of the Indian Penal Code are as follows:
(a) six months, if the offence is punishable with fine only
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.
A series of sexual harassment allegations have been made against celebrities, and in very few of such accusations, criminal complaints have actually been filed. These accusations are generally for old incidents, that took place 10 years or even 20 years ago.
Usually, in such cases, criminal complaints under one or more of Sections 354 (Assault or criminal force to woman with intent to outrage her modesty), 354A (Sexual harassment), 354B (Assault or use of criminal force to woman with intent to disrobe), 354C (Voyeurism), 354D (Stalking) or 509 (Word, gesture or act intended to insult the modesty of a woman) of the Indian Penal Code are filed.
Sections 354A, 354B, 354C, 354D were inserted in the IPC in the year 2013. Therefore, complaints under these sections cannot be filed for an incident that took place prior to 2013. This is in view of the fundamental right guaranteed under Article 20(1) of the Constitution. Many of the Me Too accusations relate to a period prior to 2013. Therefore, such complaints cannot be filed under these sections.
With regard to Section 354 IPC, before the 2013 Amendment, the maximum punishment for this offence was 2 years. Due to this, the limitation period for filing a complaint under Section 354 IPC was only 3 years. Thus, here again, if the accusation relates to an incident that took place prior to 2013, no such complaint would be legally tenable, normally speaking.
However, there is a provision in law to the effect that the court may take cognizance even beyond such limitation period if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. But, the chances of the court exercising such extraordinary power would be limited if the incident is too old and there is no satisfactory explanation for the delay in filing of complaint.
Likewise, for an offence under Section 509 IPC, prior to 2013, the maximum punishment was only 1 year (after 2013 Amendment, the maximum punishment for this offence is now 3 years), due to which the limitation period for taking cognizance of such offence was only 1 year. Therefore, a complaint for an offence under this section would also not be tenable if the accusation relates to a period prior to 2013. This would again be subject to court’s power to condone the delay.
For example, in the case of Tanushree Dutta’s accusations against Nana Patekar, the alleged incident is of 2008. As per media reports, she has now filed a police complaint under Section 354 and 509 IPC. But, as explained above, this complaint may already be legally barred unless the court permits condonation of delay.
Likewise, accusations made against former Union Minister of State MJ Akbar by journalist Ghazala Wahab relate to the year 1997, i.e., about 21 years back. It appears that she has not filed a police complaint against Akbar so far. But, if she decides to file a complaint against him, then it would be under Sections 354 and 509 IPC, going by the nature of her. Here again, her police complaint, as and when filed, would be barred by limitation; of course, this would be subject to condonation of delay, if any, by court.
The above mentioned relates to accusations prior to 2013. But what happens in respect of any incident that took place after 2013?
Now, the limitation period for an offence under any of Sections 354A, 354C, 354D or 509 IPC, is 3 years if the offence was committed on or after February 3, 2013 (i.e., the date of coming into force of the Amendment in law).
However, there is no limitation period for an offence under Section 354 or Section 354B IPC on or after the said date in 2013. Hence, such an offence can be registered even after a considerable lapse of time, say, 20 years. Of course, the credibility of such badly-delayed FIR would be affected by the time lapse.
Thus, the Me Too accusations will be subject to the above limitation periods if a police or court case is to be filed by the concerned ladies against the persons concerned.
However, as mentioned at the outset, there can be no limitation period for making an accusation if you do not want to file a police/court complaint. You can make the allegations at any time. This will basically result into naming, shaming, defaming or exposing of the alleged perpertrator (but, this may also expose the accuser to defamation in appropriate cases).
The Me Too movement may result in a change of environment. People would be more cautious in future while dealing with women. There may be more respect for women in work places.
However, it may not completely end the predatory practices of some celebrities. Law has not deterred rapists and murderers even though punishment may be life imprisonment or even the death penalty. Every criminal (or celebrity, here) thinks that he is smart enough and would not be caught.
Only time will tell how long the adverse impact of these accusations of sexual harassment made against celebrities will last.
Sudhanshu Chandra and Akshay Kumar are advocates of the Supreme Court of India and the Punjab & Haryana High Court respectively.