Case name: State v Commandant, Air Force Administrative College (Crl.O.P.No.23403 of 2021 and Crl.M.P.No.13845 of 2021)
A woman officer (Complainant) holding the post of a Lieutenant in the Indian Air force was allegedly raped by a fellow male Flight Lieutenant while she was in an unconscious state after an evening party at the Air Force Administration College. Both the officers were undergoing a Professional Knowledge Course at the Air Force Administration College (hereinafter referred to as AFAC). After the day of the incident, the accused came to the room of the woman officer and confessed the offence in front of her friend and another person. This confession was duly recorded by the Complainant’s friend. Aggrieved by the incident, the Complainant filed a written complaint to the AFAC authorities who advised her to undergo medical examination. A fact-finding Inquiry Committee was constituted to inquire into the complaint, however she was compelled and pressurized to withdraw her complaint twice.
After being unsatisfied with the manner and handling of inquiry at the AFAC, the Complainant was forced to lodge an FIR with the police against the Accused for the offence stipulated under Section 376(1) of the Indian Penal Code, 1860.
The procedural battle between the Police and the Air Force authorities:
The Police (Petitioner) witnessed many hurdles and lack of cooperation from the AFAC but were able to arrest the accused after a long delay to produced him before the Magistrate. While the accused was in judicial custody, the Air Force authorities (Respondent) requested the Magistrate for seeking the custody of the Accused as per the Court Martial Rules. Accordingly, the Court obliged and handed over his custody to the Air Force authorities.
However, the Police filed a revision petition in the Sessions Court challenging the said order. As a result, the court ordered to allow both the police and Air Force authorities to investigate the matter. The present case is filed by the Police challenging the order of allowing Accused’s custody to the Air Force authorities.
The contentions of the parties:
The Police (Petitioner) contended that the order directing the transfer of custody of accused was premature. The settled position of law through various judgments holds the view that the transfer of custody cannot occur when the investigation is at a preliminary stage, it can happen only after filing of the police report. By allowing the transfer of custody, the Air Force is interfering with the proper investigation of the Police.
On the other hand, the Air Force authorities (Respondent) argued that the arrest of the Accused did not follow a proper legal process and the Accused was taken away from the premises of AFAC on the pretext of medical examination. The Respondent contended that the Police misrepresented the facts to seek the custody of the Accused.
Observations of the Court:
The Court observed that there existed no mechanism for redressal of such cases in the Air Force Department that would not lead to re-victimisation of the aggrieved woman. The Court noticed that there was a significant lacuna with respect to the application and compliance of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 in the armed forces. The Court further asserted that filing complaints against superior officers to the Central Government or the provision of a re-trial under Section 126 of the Air Force Act, 1950 were also ineffective measures considering the practical realities of victims of sexual offences.
The Court also observed:
“In this era of awareness and sensitivity, it is difficult to comprehend that a victim of a sexual offence in the Armed Forces was not comfortable enough to take up her grievance and she was looked down and pressured for having got the courage to report. If the women of the armed forces should not have courage to fight such violence, who else can have?”
The Court added that this issue could only be addressed by addressing the gap in such special legislation and by ensuring the compliance of the mandate of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 in the armed forces.
Decision of the Court: Finally, while disposing the criminal petition, the Court directed the Central Government to constitute an Internal Complaints Committee in the Armed Forces in compliance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. The Court also directed the Government to ensure proper sensitization and awareness trainings are conducted for the armed personnel to achieve the objective of the special law.
– Tusharika Vig