Respondent speech

The counsel seeks permission to approach the dias. Much obliged.

Greetings to the hon’ble bench.
May it please thee court, this is counsel 2 on behalf of respondents who rises to continue
submissions on issue 3 and 4.
Your lordship, for the third issue which is Whether the hotel Majorca D was under an
obligation to initiate a police complaint, the respondent humbly submits that the hotel was
not under any obligation to initiate police complaint against Rajneesh. The respondent submits
two-pronged arguments in this regard- firstly, Section 11(1) of the POSH act is not applicable
as no prima facie case is established to refer the complaint to the police. Secondly, as per
the literal interpretation of Section 19(h) of the POSH act, it is the duty of the employer
to refer the case of sexual harassment to the police when the victim makes the request.
In relation to the first submission, the counsel humbly submits that it is not the duty of the icc
to initiate police action under sec 11(1) of posh act. (If the bench may refer to page 99) Sec
11(1) states that “Subject to the provisions of section 10 (page 98), the Internal Committee or
the Local Committee, as the case may be, shall, where the respondent is an employee, proceed
to make inquiry into the complaint in accordance with the provisions of the service rules
applicable to the respondent and where no such rules exist, in such manner as may be prescribed
or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward
the complaint to the police, within a period of seven days for registering the case under section
509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code
where applicable.” It is clearly stated that the internal complaints committee may only refer
the case to police itself when a prima facie case exists against the respondent.
it is submitted that in the case of S. Murugan V. State of Tamil Nadu (page 46 of
compendium, para 65 and 69) held that a police complaint can only be forwarded if a prima
facie case is constituted against the accused and the accused is found guilty after the enquiry
has been conducted by the icc. In the instant case, a prima facie case of sexual harassment does
not exist. The case against Rajneesh for sexual harassment did not establish a prima facie
instance of guilt, as he was found not guilty after due process and examination of evidence and
witnesses by the icc. Petitioner's decision to continue with the trip to Pokhra with Rajneesh and
her failure to raise objections or deny going to outings with him indicates clear consent to
spending time with him even after the alleged incidents of sexual harassment. Any woman
would never choose to stay close to her perpetrators and avoid it at all cost. the subsequent
actions taken by Apsara, such as filing a complaint against Rajneesh for sexual harassment and
willful humiliation, seem to stem more from personal grievances (refer to moot problem para
7) rather than a genuine case of sexual harassment.
Furthermore, in Shri Debdulal Maity vs National Insurance Co. Ltd. & Ors, page 49 cmp,
the Calcutta High Court specified that the IC should apply its mind to determine whether the
complaint relates to sexual harassment and whether the incident has happened at workplace.
Thereafter, any such action may be taken. acc to moot para 3, she was authorised to only a end
conferences, team dinners and other official events frequently, in India as well as abroad also. she was
not authorised to go to pokhra nor to disco and casino. They do not fall within workplace. The
interactions between petitioner and Rajneesh, including their outings to places like Pokhara
and the discotheque, do not fall within the scope of the workplace environment as defined by
petitioner's duties and responsibilities at 'Majorca D'. Therefore, based on the evidence
presented, it can be concluded that there is no sufficient basis to establish a prima facie case of
sexual harassment at workplace in this scenario, hence no onus lies against the Hotel to file the
complaint to police.
Moving forward with the second submission, the counsel humbly pleads that according to the
literal interpretation of section 19(h) of POSH Act it is not the duty of icc to initiate police
action against the perpetrator. (refer to pg ) Section 19(g) states that, ‘Every Employer shall
provide assistance to the woman if she chooses to file a complaint and 19(h) states that
employer must cause to initiate action, under the Indian Penal Code or any other law for the
time being in force, against the perpetrator, or if the aggrieved woman so desires, where the
perpetrator is not an employee, in the workplace at which the incident of sexual harassment
took place’. In the case of Municipal Corporation, Greater Bombay v. Nagpal Printing
Mills, the court admitted the literal interpretation and therefore, ordinary rules of English
grammar & usage were inarticulately called to aid in construing its provisions. In Gwalior
Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, reported in AIR 1990 SC
1747, the Supreme Court reminisced: "It is said, indeed rightly, that in seeking legislative
intention, judges not only listen to the voice of the legislature but also listen attentively to what
the legislature does not say.". When the legislative intent behind enacting a particular provision
is clear on a literal interpretation of the statute and the result is not absurd, it would be
inadvisable to substitute by judicial-wisdom of what the law should have been and how it
should be applied. The intent behind the statute is to provide every woman with a safe, secure
and dignified working environment free from harassment. The social and cultural background
prevailing in our Great Nation is that, any woman in normal circumstances would not prefer
such a complaint of sexual harassment against any person because of what it brings along with
it. It is a grave accusation. In India, women already experiencing gender-based discrimination
and are hesitant to contact the police for fear of societal retaliation, social stigma if their
identities are revealed, and even low conviction rates. Also, it is basic general rule of law that
consent or the authority of victim is necessary to file a police complaint. The hotel by taking
such an action themselves could have caused a graver injustice to the woman.
(petitioner ki ego hurt hui as he was a contractual employee, cursed her, no explicit objection
before but complaint after this.)
Applying this rule, it becomes evident that the liability of the employer, Juan Botto, to initiate
a police complaint under the Act is contingent upon the aggrieved woman's explicit request to
do so. In light of the absence of any such request, it follows that the employer bears no liability
under Section 19(h) of the POSH Act. Therefore, it is imperative for this moot court to uphold
the sanctity of statutory interpretation and legal precedent in affirming the non-liability of the
employer in the instant matter.
(keep on asking “is the bench following?”, “is the bench on the same page as the
counsel?”)
Indeed, your lordship/ certainly not your lordship.
If the bench is satisfied with the submissions regarding the third issue, the counsel seeks
permission to move on to the fourth issue.
Your lordship, for the fourth issue which is whether the statements made by respondent that is
rajneesh during the hearing in front of the committee constitute criminal defamation under
section 499 of ipc, the petitioner humbly submits that the respondent is not liable under section
499 of ipc. The petitioner submits the following arguments in this regard- 1) There was no
intention to harm the reputation of Petitioner.; 2) The statement falls under the ninth exception
under s.499.; 3) there is lack of evidence on part of Petitioner.

Criminal defamation typically involves false statements made to the public or a larger
audience. The false statement may have a broader impact on society and public trust.
Civil defamation can arise from false statements made in private settings as well.
Uncodified- compensa on
In relation to the first submission, the respondent submits that there was no actual malice on
part of respondent. one of the essential ingredients to constitute the offence of criminal
defamation is that the imputation must have been made with the intent, knowledge or belief
that it will harm the reputation of the person concerned. In the landmark judgement of R
Rajagopal v. State of Madras (page 53), the Supreme Court applied the doctrine of ‘actual
malice’ that was originally laid down by the Supreme Court of the United States in its 1964
ruling of New York Times v. Sullivan (pg 56 para 34). The rule of actual malice states that
liability will be attracted only when it can be shown that the statement was made with the
knowledge that it was false or with reckless disregard for whether it was false or not. It is
humbly submitted that respondent's statement to the committee was based on his perception of
the events and interactions between him and petitioner.
The petitioner did not explicitly object to rajneesh’s outing plans. She did go to dinners with
him as well as the disco and casino which does not fall under her professional obligation or
course of employment. He did not harbour any ill will or malice towards her, and his intention
was to defend himself against the allegations while providing his honest account of the events.
there was no deliberate intent to spread falsehood or misinformation. It's crucial to consider the
subjective nature of human interactions and interpretations of events. There is no evidence to
suggest that he acted recklessly or with disregard for the truthfulness of his statement either.
His belief in the authenticity of their interactions was sincere, and he had no reason to doubt
its accuracy.
Intimate means being close. A small restaurant is called intimate because you're sitting close to
the other people, and your best friends are considered your intimate friends. This adjective can
mean very friendly, or very personal or private. It can mean emotional initimacy as well and
cannot be construed as meaning something negative.
Moreover, the respondent humbly pleads that there was no actual harm to the reputation of
petitioner. (page 108) Explanation 4 given under sec. 499 says that the reputation of a person
is harmed when the act injures the moral or intellectual character of the person or lowers his
credit or character in the respect of his cast or his calling. In Anandrao Balkrishna Rangnekar
v. Emperor (page 60), it was held that, “It is not, therefore, sufficient for a complainant merely
to say that the allegations he complains of have harmed or are likely to harm or were intended
to harm his reputation in the estimation of others. He must prove this before he can obtain a
conviction. It is not sufficient for a complainant merely to assort that the allegations against
him have caused him annoyance, harassment or mental worry. It is not sufficient for him merely
to raise a presumption that such imputations may lower him or may lower his moral or
intellectual character in the estimation of others, or that they may in the estimation of others,
lower his character in respect of his calling or may lower his credit. These are matters that must
be proved.” It is submitted that there is a lack of tangible impact on Apsara's reputation. Her
devastation without any genuine harm to her character cannot be the criteria to convict the
Respondent. Nothing in the statement made by respondent could have created a negative
impact on Petitioner’s reputation as it was only the narration of true events. Implying intimate
nature of something … Petitioner's professional standing within the hotel industry remained
largely unaffected, with no widespread rumours or negative perceptions emerging as a result
of Respondent's statement. The interactions throughout their time together in Kathmandu and
Pokhara support Respondent's claim that Petitioner willingly spent time with him. There is no
indication in the scenario that she explicitly objected to spending time with Respondent or
participating in the activities he proposed. Furthermore, the absence of formal objections to
spending time with Respondent suggests a level of tacit acceptance or willingness on
Petitioner's part. It is plausible that Respondent genuinely believed his statement to be true.
Therefore, the respondent concludes that there was a lack of intent to harm the petitioner’s
reputation and the respondent stands innocent.
Your honble bench, Although the case is not made out against the respondent as the ingredients
of defamation have not been fulfilled, nevertheless, the respondent would be moving forward
with the second submission, that the statement still falls under the ninth exception (page ). The
ninth exception under section 499 states it is not defamation to make an imputation on the
character of another provided that the imputation be made, firstly, in good faith and secondly,
for the protection of the interests of the person making it, or of any other person, or for the
public good.”
Firstly, it is submitted that in Harbhajan Singh v. State of Punjab (page 63 para 21), it was
held that “In deciding whether an accused person acted in good faith under the Ninth Exception,
it is not possible to lay down any rigid rule or test. It would be a question to be considered on
the facts and circumstances of each case.” In Sewakram Sobhani v. R.K Karanjia (page 66
para 17), it was held “Good faith requires care and caution and prudence in the background of
context and circumstances. The position of the persons making the imputation will regulate the
standard of care and caution.” It is submitted that the Respondent presented his account of the
events based on his genuine belief in its accuracy, without disregarding the potential
consequences of his words. While the petitioner may have perceived their interactions
differently, Respondent genuinely believed that his account accurately represented the nature
of their relationship i.e private, closer compared to other colleagues in the hotel. Intimate-
subjective, emotional intimacy, professional. He provided his perspective in good faith with
utmost care and caution, aiming to offer a comprehensive understanding of the events while
defending himself against the accusations. As it has been earlier established that there was no
malice or intention to harm the petitioner in the statement made by the respondent, it can be
concluded that the respondent acted in good faith.
Intimate means being close. A small restaurant is called intimate because you're sitting close to
the other people, and your best friends are considered your intimate friends. This adjective can
mean very friendly, or very personal or private.
Secondly, it is submitted that in the case of Kanwar Lal v. State of Punjab (page 69 para 4),
it was held, “Even if good faith be taken to have been established, the imputation has to be
made for the protection of the interest of the person making it.” Rajneesh made the statement
in response to serious allegations of sexual harassment and humiliation levelled against him to
defend himself against these allegations and safeguard his professional reputation and integrity.
the allegations made by petitioner posed a significant threat to his reputation and career
prospects. In the absence of a robust defence, his reputation and career could suffer irreparable
harm. Therefore, his statement can be viewed as a legitimate exercise of his right to protect his
own interests within the bounds of the law.
Moving forward to the third and last submission, the respondent humbly pleads that the onus
to prove guilt in a criminal case lies on the Petitioner. The burden of proof rests with the
prosecution to establish beyond a reasonable doubt that the accused committed the offense of
defamation. Until such proof is provided, the accused is presumed innocent.
It is humbly submitted that in Puran V. st of Punjab (pg 72 para 10), it was held, “..the High
Court has full power to review the evidence upon which an order of acquittal is founded, yet
the presumption of innocence of the accused being further reinforced by his acquittal by the
trial court, the findings of that court which had the advantage of seeing the witnesses and
hearing their evidence can be reversed only for very substantial and compelling reasons.”
In Sheo Swarup v. King Emperor (pg 74), their Lordships of the Privy Council observed that
no limitation should be placed upon the power of the High Court to review at large the evidence
upon which the order of acquittal is founded but that in exercising the power conferred by the
Code and before reaching its conclusions upon fact, the High Court should, and will, always
give proper weight and consideration to such matters as (1) the views of the trial judge as to
the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, à
presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the
right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in
disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the
witnesses.”
It is therefore submitted that the respondent's previous acquittal (refer to PG 21) implies that
he was found not guilty of the charges brought against him in that particular case. This
establishes a legal presumption of innocence in the current matter as well until proven
otherwise. The circumstances surrounding the case were thoroughly examined, and the
evidence presented did not establish his guilt beyond a reasonable doubt. It prompts questions
about whether the allegations are based on substantive evidence or if there are other motives
driving the accusations. The acquittal underscores the principle that the burden of proof lies
with the party making the allegations, and mere accusations without substantial and compelling
evidence may not be sufficient to establish guilt.
If the bench is satisfied with the arguments presented by the counsel, may the counsel proceed
with the prayer.
THEREFORE, in the light of the questions presented, arguments advanced, and authorities
cited, Respondent request this Hon'ble Court to find, adjudge and declare that:
• The writ petition/ appeal is not maintainable under Article 226 of the Constitution of India.
• The Internal Complaint Committee was constituted in accordance with the law.
• Hotel Majorca D was not under an obligation to report the incident to initiate the police action.
• The statements made by Respondent during hearing in front of the committee does not
constitute criminal defamation under Section 499 of IPC.
And may pass any other order in favour of the Respondent that it may deem fit in the interest
of justice, equity and good conscience.
For this Act of kindness, the appellant shall duty bound forever pray.
All of which is most humbly and respec ully submi ed. May it please the court.
Justice, equity and good conscience have generally been interpreted as English laws and rules
that are applied when any written law is not applicable to a legal matter. Justice and equity in
this principle surmises the equal, unbiased distribution of justice in a society, but also it may
express a sense of ideal, an ultimate goal, or at least a direction that law must follow. Good
conscience means fairness as applied to each individual case after considering the totality of
the circumstances. The general principle of equity and justice offers a better cohesion to other
principles of law.