Wednesday, September 27, 2023

Wrestling with FIRs

It has become a regular front page feature in almost every newspaper—the photograph of some of the country’s top medal-winning wrestlers staging a protest at Jantar Mantar in Delhi against BJP MP and Wrestling Federation of India president Brij Bhushan Sharan Singh for sexual offenses. The matter has  now reached the Supreme Court and the question of who wins the legal bout hangs in the balance.

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While the media focus has been on the protest site, the real match is taking place in the Supreme Court. On April 25, the top court issued a notice on a petition filed by the top women wrestlers of the country, including Vinesh Phogat and Sakshi Malik, seeking registration of an FIR against BJP MP and Wrestling Federation of India (WFI) president Brij Bhushan Sharan Singh over alleged sexual harassment of women wrestlers. The matter was mentioned by Senior Advocate Kapil Sibal, appearing for the protesting wrestlers, before the bench headed by Chief Justice of India (CJI) DY Chandrachud. 

The bench pointed out that normally a remedy to approach the police superintendent was available under Section 156 CrPC. Sibal contended that seven women wrestlers, including a minor, had filed a complaint of sexual harassment by Singh. He alleged that the FIRs were not being registered, adding that the law of this Court had been violated. Sibal further said that the young girl was 16 at the time, and had also won a gold medal for the country. He requested the apex court to protect the identity of the petitioners in the case. 

A total of seven wrestlers, including gold medallist Phogat, have filed the application in the apex court. The petition alleged that repeated requests to the Delhi Police regarding registration of FIR against Singh fell on deaf ears, after which the athletes were forced to stage a protest in New Delhi. 

Several wrestlers, including Phogat and Olympians Malik and Bajrang Punia, have been sitting on a dharna at Jantar Mantar in New Delhi for several days, alleging that despite filing a complaint with the Connaught Place police station, nothing had been done. They alleged in the complaint that seven female wrestlers, including a minor, were “molested, tortured and exploited” by Singh, when he is president of WFI.

The petition alleged that there has been an inordinate delay in registering an FIR, especially when charges under the Protection of Children from Sexual Offences (POCSO) Act were pressed against the wrestling body’s president. After the intervention of the top court, the Delhi Police registered two FIRs against Singh on April 28, 2023. One of the FIRs was registered under the POCSO Act and the second FIR was registered on similar grounds on the complaint of a few adult female wrestlers.

The Delhi Police had assured the Supreme Court on April 28 that it will register an FIR against Singh over allegations of sexual harassment levelled against him by top women wrestlers of the country. This information was given to the bench of the CJI and Justice PS Narasimha by Solicitor General Tushar Mehta, representing Delhi Police. The Court directed the Delhi Police to make an adequate assessment of threat perception and provide security to the minor.

Earlier, on April 26, the Supreme Court was apprised about the need for a preliminary inquiry before registering an FIR over sexual harassment allegations made by women wrestlers against Singh. The bench comprising the CJI and Justice S Ravindra Bhat and Justice PS Narasimha were informed by Mehta on the need for a preliminary inquiry. The mention was made in a plea filed by the wrestlers seeking registration of an FIR against Singh. Mehta submitted that there should be some preliminary enquiry on which an FIR can be registered. The CJI, however, told Mehta that the bench cannot do anything unless they are furnished with some material and asked that this be done by April 28.

Sibal then said that they have an additional affidavit detailing what happened thereafter. He said even the police personnel could now be prosecuted for not registering an offence of this nature. He mentioned the amendment to Section 166A of CrPC, which allowed the police also to be prosecuted if a case was not registered. He claimed that there was a committee report, which has not been made public yet.

Taking note of the “serious allegations” of sexual harassment made by the wrestlers against Singh, the bench said that the matter required serious consideration of the Court and directed that the complaints which were given in a sealed cover, shall again be re­sealed and placed again with the petition under Article 32. 

The agitating wrestlers said they would mobilise nationwide support by appealing to the khap panchayats and several other organisations to back their cause. Regarding the sports ministry stalling the Wrestling Federation of India’s elections on May 7 and directing the Indian Olympic Association to form an ad-hoc committee to run the day-to-day affairs of the federation, the wrestlers said they had nothing to do with the polls and would continue to press for a proper investigation into the allegations against Singh.

The law with regard to registration of FIR is well settled by the Supreme Court in its Constitutional bench judgment in Lalita Kumari vs Govt of UP. In this case, the apex court held that the registration of FIR is mandatory under Section 154 of CrPC, if the information discloses commission of a cognizable offense and no preliminary inquiry is permissible in such a situation. The police officials must take all complaints of sexual harassment seriously and register FIRs promptly and not create yet another obstacle by delaying the registration of FIR.

This aspect has also recently been dealt with by the top court in XYZ vs State of Madhya Pradesh & Ors. Criminal Appeal No.1184 of 2022 wherein the top court has opined: “We cannot help but note that the police’s inaction in this case is most unfortunate. It is every police officer’s bounden duty to carry out his or her functions in a public-spirited manner. The police must be cognizant of the fact that they are usually the first point of contact for a victim of a crime or a complainant. They must abide by the law and enable the smooth registration of an FIR. Needless to say, they must treat all members of the public in a fair and impartial manner. This is all the more essential in cases of sexual harassment or violence, where victims (who are usually women) face great societal stigma when they attempt to file a complaint. It is no secret that women’s families often do not approve of initiating criminal proceedings in cases of sexual harassment. Various quarters of society attempt to persuade the survivor not to register a complaint or initiate other formal proceedings, and they often succeed. Finally, visiting the police station and interacting with police officers can be an intimidating experience for many. This discomfort is often compounded if the reason for visiting the police station is to complain of a sexual offence.”

The following steps can be taken in case the police refuses to lodge an FIR:

* If a police officer declines to register an FIR, the complainant can report it to the concerned higher authority by submitting a complaint in writing and by post.

* If the higher authority declines to take note of the complaint, the aggrieved person can file a criminal complaint before the judicial magistrate under Section 156(3) of CrPC.

Section 156 of CrPC deals with a police officer’s power to investigate cognizable cases. It says:

“(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.”

* Zero FIR: If a person is unable to file an FIR in the police station of its territorial jurisdiction for a particular offence, he may file the same in any other police station within his/her reach, and such police station would later transfer the report to the police station which actually has the jurisdiction for that particular offence.

Whether that applies to the wrestlers sleeping on mats in the streets of Delhi is the moot question. 

—By Shivam Sharma and India Legal Bureau

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