This article has been written by Sonali Khatri and Karan Singh Sohal. Sonali is an advocate based in Jaipur. Karan graduated in BBA.LLB(Hons) and is currently practicing.
A lady goes to the police station and lodge a false FIR under Section 354A of the Indian Penal Code [hereinafter, “IPC”] stating that you have sexually harassed her. On the basis of the FIR and subsequent criminal proceedings, if you get convicted by the court, then you can be punished with imprisonment which can extend upto three years and fine.
Despite knowing that it’s a false case, what would you do? Would you wait for things to move at their own pace or take the responsibility of this situation and do whatever it takes to ensure that you get out of this mess? If you are in the second category, then continue reading. This article is to help you get out of this mess.
In this article, we have discussed the possible legal ways via which you can save yourself. All of them may not be applicable in your situation. Choose the one which is the most appropriate in your situation.
First of all, let’s see how you can defend yourself when charged under Section 354A of the IPC.
1. How to defend against the accusation itself leveled under Section 354A of the IPC?
Following are the ways by which the accused man can defend himself against such an accusation:
- Character Witnesses– A man can find witnesses who can justify that he is innocent. If a witness testifies that the defendant is of a nature which will never harm any women in any physical or mental capacity, then the court is likely to give due consideration to such witnesses. It is relevant to note that such witnesses should maintain their stance throughout the trial and subsequent to the trial. Change of stance by such witnesses (known as, ‘retraction of witnesses’ in legal language) can prove to be extremely detrimental to the case of accused if the whole case is dependent upon such witnesses.
- False evidence given by the complainant woman– Cross Examination can be an effective method to find out the real facts of the given case. If such a fact is raised in court or through deposition, then the man can sue the woman for defamation and the concerned lawyer for perjury.
- Location– If it can be proved that the concerned accused wasn’t present at the alleged location and was actually present at some other place, it would be easier to prove that the accused is of innocent nature.
- Position of the man– If a man is at a position of power then he is more prone to such an accusation. For example, the accused man did not promote the complainant woman. In that situation, it is possible that the woman has accused the man of sexual harassment just to take revenge. Therefore, it would be prudent to note nature of relationship between the accused and the complainant.
- History– If the complainant woman has a history of wrongly accusing or blackmailing innocent men (the same can be proved through the testimony of peers, past relationships and cross examination), then it would be easier to prove the innocence of the accused.
- Juvenile– If the accused man was a juvenile at the time of the commission of the offence, then he is likely to be treated leniently in light of his future.
- Extortion– If the complainant woman is trying to extort money from the man (which can be proved by scanning her social media with the assistance of forensics expert), then also the accused is likely to get relief from the court. Bank account statements can also be used as evidence for the same.
- Mobile phone records, specifically, the call history of the woman and accused can help a lot.
- That the woman had an affair with the man beforehand can also be a relevant fact.
2. Why is cross examination critical?
Cross examination is an art which can help in getting the real story out and save the accused from a punishment which he does not deserve. The same is possible if the criminal lawyer is good enough to use the skill of cross examination for protection the interest of his client. Cross Examination is critical for the following reasons:
- To get familiar with the relevant facts given by the Prosecution and Accused.
- To be aware of the prosecution’s strategy and use it to the advantage of the accused.
- To ensure that the accused does not fall in the trap of the prosecution and is ready to answer the questions likely to be posed by the prosecution.
- Try to rattle the accused as much as possible so that he is ready for any surprises thrown by prosecution.
- For making the accused familiar with the procedures of the court.
- To ensure that the accused understands how he has to behave in the court.
3. What kind of inconsistencies in prosecution story will lead to acquittal?
Following are the inconsistencies that can lead to acquittal of the accused:
- The location of the act.
- Date, time and nature of the act.
- The situation that lead to the act.
- Any prior history with the accused.
- Details about the events which occurred prior to and post the alleged act.
4. What kind of witnesses should be presented by defense?
Following witnesses can be presented by the defense:
- Family and Friends.
- Peers and Superiors at workplace.
- Any prior victims that were/ had been falsely accused by the woman.
- People that can testify if the accused and complainant had a relationship.
- Males who were in a relationship with the woman and can testify about her bad character of falsely accusing men.
5. Is there anything under “the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” (hereinafter the Act of 2013) which can save those persons who are accused of false sexual harassment allegation?
Yes, there is specifically Section 14 in the Act of 2013 which can help people who are accused of false sexual harassment allegation.
A. What does Section 14 provide?
It provides for punishment for those women who file false or malicious complaint against a person.
Please note one very crucial thing about this Section. You can get relief under this Section only if the Internal Committee (i.e. Inquiry Committee) comes to the conclusion that the complaint against you was false or malicious. In the absence of any such conclusion you are not likely to get any benefit under Section 14.
Therefore, my advice would be that if the Internal Committee has taken an action against you on the basis of a complaint, then cooperate with the Committee, defend yourself to the fullest of your abilities and provide all the necessary evidence to it to prove why the complaint against you is false and malicious. The opportunity to present your case before the Committee is the best way to prove that you have been falsely accused of the allegations of sexual harassment.
B. What if the Internal Committee does not come to the conclusion that the complaint against you was false or malicious? What remedy would you be having in that situation?
Against the decision of the Internal Committee, you can consider filing an appeal to the court or tribunal in accordance with Section 18 of the Act of 2013.
6. Can the Act of 2013 benefit every such person who is charged with false allegation of sexual harassment?
No, that is not the case. This Act is applicable only on those cases where sexual harassment has occurred at the workplace.
A. What is the meaning of the word workplace?
The word workplace has been defined in great detail under Section 2(o) of the Act of 2013.
B. What all areas are covered in the definition of workplace?
In a nutshell, following areas are covered in the definition of workplace:
- Any department or unit which is established, owned, controlled and substantially financed by the Government.
- Any private sector organization, whether profit or not-for-profit organization.
- Hospital or nursing homes.
- Any venue used for activities relating to sports.
- Any place visited by the employee during the course of employment including transportation provided by the employer for undertaking the journey.
- Any dwelling place or a house.
It is advisable to read the definition of the “workplace” from the Act itself.
C. How do I find out if this Act (Act of 2013) is applicable on me?
In order to answer this question, you need to look at the complaint. After reading the contents of the complaint, you would get to know the PLACE where the sexual harassment happened (as per the version of the woman). If that place falls within the definition of “workplace” as given under the Act of 2013, then the Act of 2013 would be applicable on you.
7. What do I do in case this Act is not applicable on me? Is there any other remedy which can save people who are accused with false allegation of sexual harassment?
In case this Act is not applicable to your situation, then defend yourself under Section 354A of the IPC itself (which has been explained in the earlier part). Additionally, you can take the help of Sections 499, 500 and 211 of the Indian Penal Code.
8. Can you explain in detail about these provisions?
a. Sections 499 and 500
1. What are these Sections about?
These sections aim to protect a person’s reputation. If you believe that the woman has injured your reputation by her false allegations, then you can take use of these Sections.
Despite being acquitted in the case of sexual harassment, the reputation and career of the man is ruined by that time. Therefore, in those circumstances, these sections can help substantially.
2. Why should I file a complaint under this Section?
The complaint under these Sections is filed for the offence of defamation. If you are able to successfully establish that defamation has been committed by the woman, then the woman can be punished with imprisonment extending to two years and fine (maximum punishment provided for this offence).
3. What essential elements must be there in the complaint filed under Section 499?
- The first condition is to prove that the statement must be published. The matter should be published in either written or oral form so as to establish that someone knows or have heard about it.
- The next condition is to prove that the statement made has lowered the reputation or goodwill of the person and this is often the basic ground that is needed to be proven for a case for defamation.
- The last condition is that the incident must have happened before the right thinking members of the society. This in essence means that defamatory statements must be before a section of people whose knowledge about the incident can hamper you present reputation.
4. Which court would try this offence?
Magistrate First Class would try this offence.
5. Is it a bailable offence?
Yes, it is a baliable offence.
Note: There are two ways to deal with the offence of defamation. One is criminal defamation (as discussed above) and another is civil defamation. In the later, you can file a civil suit claiming damages from the woman.
b. Section 211
1. What is this Section about?
If a person makes false charges against another person, then the person making such false charges would have committed an offence under Section 211 of the IPC.
2. Why should I file a complaint under this Section?
If your lawyer is able to prove that the woman had falsely charged you with the offence of sexual harassment, then the woman can be punished with imprisonment extending to seven years along with the fine.
3. What essential elements must be there in the complaint filed under Section 211?
- A criminal proceeding or charge was instituted against you by the woman.
- The woman instituted proceedings against on the grounds that you sexually harassed her.
- The aforementioned allegation against you was false and malicious.
- Despite knowing this, the woman has made these allegations against you.
4. Which court would try this offence?
Magistrate First Class would try this offence. However, if you are accused of a crime whose punishment is death or life imprisonment, then the Court of Sessions would try this offence.
5. Is it (Section 211) a bailable offence?
Yes, it is a baliable offence.
9. What is the right time for making a complaint under Sections 499 and 500 of the IPC?
It is not necessary that you need to wait for the main case to be decided before filing a case for defamation. In fact, a case or a false charge is not even necessary for making a complaint under these Sections. The right time to take use of these sections is when your reputation in the minds of the right thinking members (as explained earlier) is lowered. In essence, this section has more to do with your reputation irrespective of whether the false FIR has been lodged against you or not.
10. What is the right time for making a complaint under Section 211 of the IPC?
The answer to this question depends upon the stage at which the main case against you is pending.
If the Magistrate has taken cognizance of that offence (“offence of sexual harassment”), then you won’t be able to file a complaint under Section 211 against that woman. (It is because of the Section 195(1)(b) of the Code of Criminal Procedure, 1973.)
If the Magistrate (or any other court) has not taken cognizance of that offence (“offence of sexual harassment”), then you need not wait. In other words, even though the main case is pending at the level of the police officer, still you would be able to file a complaint under Section 211. The best thing is this: although the investigating officer has not found the woman’s complaint to be false (as the matter is still pending), nothing, under the law, stops you from filing a complaint under Section 211. (To know more on this, you can read paragraphs 18 to 24 of R.K.Selvarajan Chettiar @ VS S.Murugavel at https://www.casemine.com/judgement/in/560900f3e4b0149711155839#p_23)
11. Would the proceedings under above mentioned Sections help me defend the main case instituted against me? What would be the impact of filing complaint under above provisions upon the main case?
No, not much.
The main case (main case means the case filed by the woman under Section 354A of the IPC alleging the offence of sexual harassment being committed by you) is about whether you have sexually harassed the woman. Now, when you file a case under Section 211, you basically say this: that the allegation of woman is false. Just because you believe this, it does not mean that the woman’s version is false. Therefore, it is ultimately the main case which would decide your fate. In case you are acquitted in the main case or the FIR lodged by the woman has been quashed, thereafter if you initiate the proceedings under Section 211 it would be better. In that situation, it may be a bit easier for you to prove that you have been victim of false sexual harassment allegations.
As sections 499 and 500 relate to protecting your reputation, they are not likely to affect the main case.
12. If the woman has not lodged any FIR, but she is spreading false rumors on facebook/ whatsapp or any other social media platform, then could you still file a case under these Sections?
In that situation you cannot file a case under Section 211. You can think about invoking Section 211 only if the woman has lodged a false FIR against you (this is the bare minimum requirement for invoking Section 211). However, you can take use of Sections 499 and 500 relating to defamation.
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