Women Wrestlers' Case: Police Wants To Probe Before FIR, but What Does Law Say?

As Delhi swelters in April, only about 18 months from the next Olympic games, a large group of award-winning women wrestlers huddle at Jantar Mantar.

This time, however, their opponent isn't another wrestler from another country. Instead, they are faced with the mighty Delhi Police, which has so far refused to register an FIR on their sexual harassment complaint.

The strength of these women perhaps lies in their resilient spirit and the support they have received from other wrestlers – female and male. However, it may also be noted that their complaint is against Brij Bhushan Sharan Singh, a deeply powerful figure of authority.

Singh is the President of the Wrestling Federation of India (WFI), and a BJP MP.

In their petition filed at the Supreme Court of India, over three days after the Delhi Police refused to register their FIR despite their complaint, these women have said:

"Petitioners are the women wrestlers of this country who have dedicated their lives to bringing great pride to this nation through their constant hard work and dedication. The petitioners are victims of sexual exploitation and harassment at the behest of Shri Brij Bhushan Sharan Singh, President of the Wrestling Federation of India, who is also a sitting member of parliament from the Bharatiya Janata Party.”

Meanwhile, PTI quoted Solicitor General Tushar Mehta (representing the Delhi Police) as having told the apex court on Wednesday:

"We (the Delhi Police), prima facie feel, that there was a need to conduct a preliminary investigation before the registration of the FIR."

The SG did say, though, that they may lodge the FIR straightaway if the Supreme Court deemed it necessary.

The court, on its part, will further hear the Delhi Police's view, along with the plea filed by the women wrestlers on the next date of hearing. It had noted in its order on Tuesday:

"There are serious allegations of sexual harassment in the petition, which is instituted by professional international wrestlers who have represented India. The matter requires the consideration of this Court in exercise of its jurisdiction under Article 32 of the Constitution."

What Does the Law Say?

Sexual Harassment is a cognizable offence, defined under Section 354 A of the Indian Penal Code (IPC). 

A cognizable offence is any offence in which a police officer may (if the need arises and in accordance with the applicable law, of course) arrest the accused without a warrant.

Barring specific circumstances, the law makes it mandatory for the police to register an FIR on receiving information about commission of a cognizable offence.

A constitution bench of the Supreme Court in Lalita Kumari vs Government of Uttar Pradesh held:

"Registration of FIR is mandatory under Section 154 of the (Criminal Procedure) Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation."

Further, it says that “the police officer cannot avoid his duty of registering (the) offence if cognizable offence is disclosed” and that “action must be taken against erring officers who do not register the FIR if information received by them discloses a cognizable offence.”

The judgment does mention a category of cases in which a preliminary inquiry may be allowed prior to filing of FIR. These include:

(a) Matrimonial disputes/ family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is an abnormal delay/laches in initiating criminal prosecution...

It also goes on to say that these “are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”

However, it is hard to imagine how a sexual harassment complaint by so many women - no less those who have brought glory to the nation - against a government functionary of such tremendous authority would fall into any such category.

Additionally, a letter dated 9 October 2020, issued to chief secretaries of all states and union territories, by the the deputy secretary to the government of India, advises compulsory registration of an FIR in case of a cognizable offence under Section 154(1) of CrPC.

What's more, it notes that "the law also enables the police to register an FIR or a 'Zero FIR' in the event of receipt of information...of a cognizable offence, which includes cases of sexual assault on women."

But Why Is an FIR Necessary?

In conversation with The Quint, a senior advocate of the Supreme Court said: "Sexual harassment is a cognizable offence, so police is duty bound to take cognizance. Where is the question of preliminary investigation in matters of sexual harassment?"

He added that even if the police did not want to arrest the accused at this stage, "not registering an FIR is unthinkable."

Arrest is in no way a prerequisite of an FIR.

In fact in Arnesh Kumar vs State of Bihar (2014), the Supreme Court had emphasised that arrests should be an exception, in cases where maximum punishment is less than seven years of imprisonment. In several of our other pieces, when reporting about arbitrary arrest of activists and journalists, we have found the need to remind our readers that these Arnesh Kumar guidelines exist, and arrests should ideally and legally be carried out with more hesitation.

Thus, the police could have lodged the FIR in this sexual harassment case, and gone on to probe the matter without impinging upon the accused person's right to liberty. And if during their probe, the police stumbled upon findings that indicated otherwise, they could have easily been factored in at a later stage.

"Also these women are putting themselves at such risk, by going against such a powerful figure. This is all the more reason for police to act fast and register an FIR," the senior advocate said.

Meanwhile, the petition adds:

If this is indeed the case, what message lies within for the rest of us?

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) notes:

But how will there be maximum participation if women cannot feel safe; if they have seen even those with gilded, gleaming honours "run from pillar to post" to get a mere FIR registered?

India is a signatory to the CEDAW.