Institution head who laughed off sexual harassment complaint not liable for abetment of offence: Gujarat HC

The Gujarat High Court has held that an organisational head cannot be held liable for abetment of sexual harassment merely because he brushed aside sexual harassment allegations made against someone else within the same organisation [Kanaiyalal Trikamlal vs X & Anr.].

Justice PM Raval made the observation while quashing criminal proceedings initiated against a former President of the Federation of Industry and Association (FIA), Kanaiyalal Trikamlal Patel, in connection with a sexual harassment case registered in 2016.

The sexual harassment allegation was made against the then-secretary of the organisation. However, the complainant alleged that when the matter was brought to the notice of Patel, he laughed it off and said that the complainant would have to succumb to such demands if she wanted to progress in her career.

For making such comments, Patel was booked for abeting the offence of sexual harassment.

The Court, however, observed that to hold someone guilty of abeting an offence under Section 107 of the Indian Penal Code (IPC), it must be shown that the accused had an active, criminal intent to facilitate or instigate the crime before or during its commission.

Making insenstive comments about a crime after it occurs will not amount to abeting it, the Court observed.

“Merely by uttering the words that [the complainant] will have to succumb to such polluted demands if she wants to grow in the business, without there being any intention, will not make the act of abetment of an offence if the petitioner did not know that the offence was being committed or contemplated... Mere negligence or carelessness on the part of the present petitioner cannot be termed as an abetment,” the Court held.

The Court, therefore, allowed Patel's plea to quash the case against him. The Court clarified that the criminal trial will continue against the then-secretary accused of sexually harassing the complainant.

The case concerned an FIR that had been lodged against several persons at in 2016, alleging the offences of sexual harassment, outraging the modesty of a woman and related offences.

The complainant had entered into a contract with the FIA, in connection with which she was owed ₹22 lakhs.

The complainant alleged that during business travel across Gujarat in December 2015, the FIA’s then-Secretary, Arvind Gajera, sexually harassed and molested her while she was attempting to recover her contractual dues.

The complainant alleged that when she brought the misconduct to Patel’s attention, he laughed it off and remarked that she had to compromise to succeed in business. The prosecution argued that Patel’s presence in the same hotel during one tour and his failure to take action constituted abetment.

The Court, however, noted that there was no evidence of any direct criminal act by Patel or any record showing his presence in the restaurant where the alleged molestation occurred.

The Court added that abetment by omission is punishable only when there is an "illegal omission" stemming from a breach of a legal obligation, accompanied by intentional aiding.

Noting that the complainant approached Patel only after the offences were already committed, the Bench held that failing to heed the complainant's grievance did not satisfy the legal ingredients of criminal abetment.

Consequently, the High Court quashed the FIR and consequential proceedings against Patel.

The Court clarified that the trial against the other accused would proceed unhindered.

Advocates Rasesh H Parikh and Hemang H Parikh appeared for Patel.

Advocates Sudhanshu A Jha and K M Antani appeared for respondents.

[Read Judgment]