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2003 DIGILAW 224 (PNJ)

Kiran Lata v. State of Haryana

2003-02-05

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity "Code") seeks quashing of F.I.R. No. 581 dated 9.12.1995, under sections 420, 379, 170, 171 of the Indian Penal Code registered at Police Station Sadar, Karnal, and the subsequent proceedings taken by the learned Additional Sessions Judge, Karnal. 2. The facts unfolded in the petition reveal a sad state of affairs in the State Crime Record Bureau (for brevity "SCRB") Madhuban because of disrespectful and mischievous attitude towards female employees. The petitioner lost for her husband who was working as Head Constable in the Haryana Police. She was given compassionate appointment as a Clerk in the office of SCRB, Madhuban on 24.4.1991. On 2.3.1993, a commendation certificate was awarded to her by the Director of the SCRB, Madhuban. In September, 1994, one Dharam Pal Yadav, Superintendent of Police (Computer) took charge and started making indecent advances towards the petitioner. The petitioner resisted and repelled those advances which resulted in his annoyance. On 23.1.1995, the petitioner was issued the first warning by the said SP on the allegations that she was late by ten minutes from the office without any permission. On 5.5.1995, another warning was issued to her for tampering with the office record. Still further, on 12.5.1995 the same SP issued her a show notice alleging shady moral character and also as to why the Government residential quarter allotted to her be not got vacated. The petitioner filed Civil Writ Petition No. 7138 of 1995 challenging the aforesaid show cause notice imputing mala fide against the SP Shri Dharam Pal Yadav. On issuance of notice of motion by this Court, the show cause notice alleging shady moral character and threatening to evict the petitioner from the official residential quarter was withdrawn. Thereafter the writ petition was disposed of as having become infructuous. The aforementioned Superintendent of Police recorded annual confidential report of the petitioner on 20.9.1995 and made some defamatory allegations against her moral character. The petitioner made a representation seeking permission of the department to launch prosecution against the aforementioned Superintendent of Police. 3. Thereafter the writ petition was disposed of as having become infructuous. The aforementioned Superintendent of Police recorded annual confidential report of the petitioner on 20.9.1995 and made some defamatory allegations against her moral character. The petitioner made a representation seeking permission of the department to launch prosecution against the aforementioned Superintendent of Police. 3. Further allegations levelled against the Superintendent of Police, Shri Dharam Pal Yadav are that he prompted Kartar Singh, Deputy Superintendent of Police (DSP), who is the complainant in the instant F.I.R., to enter a report in the diary register of Police Station City, Rohtak against the petitioner alleging her presence at Rohtak after office hours, without any permission to leave the station and without leave. Shri Kartar Singh. DSP also reported recording of the entry in the daily diary register, to Shri Dharam Pal Yadav, SP (Annexure P-2) as he was a subordinate of the Superintendent of Police, being Deputy Superintendent of Police (Research), SCRB Madhuban. The next morning i.e. on 9.12.1995, Shri Kartar Singh DSP lodged the present FIR by sending a written complaint, which is said to have been forwarded by the aforementioned Superintendent of Police. The complaint was accompanied by a recovery memo of forged identity card from the hand-bag of the petitioner. A copy of the recovery memo has also been placed on the record as Annexure P-4. The allegations in the F.I.R. as well as in the recovery memo are that the petitioner has stolen the identity card of a lady constable Smt. Shashi Sharma, who was earlier posted in the SCRB Madhuban and who has reported the loss of her identity card. It is further alleged that the petitioner pasted her photograph on that identity card and was using the name of Smt. Shashi Sharma whenever she travelled in the Roadways buses, as travelling by the police employees is free of costs in the Roadways buses. However, for Clerks, this concession is not available. A raiding party consisting of various officers searched the hand-bag of the petitioner and one identity card No. 188 dated 23.1.1992 belonging to Kiran Lata Clerk (petitioner) was found on which her photograph was pasted and the same was laminated. They also found in the bag two different photostat identity cards which were alleged to be in the name of Smt. Shashi Sharma, Lady Constable pasted with photograph of Kiran Lata Clerk. They also found in the bag two different photostat identity cards which were alleged to be in the name of Smt. Shashi Sharma, Lady Constable pasted with photograph of Kiran Lata Clerk. The number, height and date were erased, but these cards were also laminated. The allegations against the petitioner, therefore, were that she has stolen the identity card of Smt. Shashi Sharma, pasted her own photograph on it and has been misusing the same by posing herself as a Lady Constable, as against the Clerk. The original identity card was alleged to be in the possession of the petitioner. 4. The petitioner filed Criminal Miscellaneous No. 913-M of 1996 before this Court and the same was disposed of on 7.7.1997 directing transfer of investigation of the case from District Karnal to District Ambala. It was further directed that investigation be conducted by an IPS officer, as is evident from the order Annexure P-5. Thereafter, the investigation was transferred to Smt. Kala Ram Chandran, Additional Superintendent of Police, Ambala. After investigation, she submitted the challan under Sections 379, 170 and 171 of Indian Penal Code on 2.1.1998. 5. The petitioner has claimed that statement recorded under Section 161 of the Code during the investigation, did not support the recovery of the forged identity card from the possession of the petitioner. Lady Head Constable Sudarshan Kumari who conducted the personal search of the petitioner has stated in her statement that no identity card was recovered from the possession of the petitioner on 8.12.1995. Sub Inspector Rash Pal and Prem Chand Hooda, Deputy Superintendent of Police, Finger Print Bureau, Madhuban had stated that photo copies of identity card were recovered from the drawer of a table adjoining to that of the petitioner. However, on the basis of the statements made before Judicial Magistrate Ist Class, Karnal, charge was framed against the petitioner for the offences under Sections 379/171 of the Indian Penal Code by order dated 9.3.1998. However, on the basis of the statements made before Judicial Magistrate Ist Class, Karnal, charge was framed against the petitioner for the offences under Sections 379/171 of the Indian Penal Code by order dated 9.3.1998. The petitioner challenged the order framing charge against her, by filing a Revision Petition before the Sessions Judge, Karnal which came to be heard by the Additional Sessions Judge, Karnal, who dismissed revision petition by order dated 1.12.2000 primarily on the grounds that once the identity card belonging to Lady Constable Smt. Shashi Sharma had been found in petitioners possession with her own photograph pasted on it and the same being laminated, it could not be said that offence under sections 379/171 of Indian Penal Code was not made out. But the allegations of mala fide which are at the root of the whole controversy, were neither touched nor discussed by the Additional Sessions Judge. 6. I have heard Shri Rakesh Kharb, learned counsel for the petitioner who has argued that narration of facts in the instant case would show that the petitioner appears to have been subjected to sexual harassment which has resulted in her prosecution by lodging of the FIR. He has further submitted that under section 165 of the Code, neither Shri Kartar Singh DSP (Research), Madhuban nor Panna Lal Sub Inspector had any authority to conduct search of the petitioner because the search pre-supposes registration of a case and that no independent witness to the alleged recovery of the forged identity card has been associated. According to the learned counsel, these lacunas are required to be examined in the light of the allegations made against the Superintendent of Police Shri Dharam Pal Yadav and that the complaint was lodged by the Deputy Superintendent of Police Kartar Singh at the instance of Shri Dharam Pal Yadav. The counsel still further argued that even the recovery has not been supported by the Sub Inspector Panna Lal and Lady Head Constable Sudarshan Kumari. 7. When the instant petition came up for hearing on 15.1.2003, learned State counsel requested for time to get instructions as to whether the department is prepared to withdraw the FIR lodged against the petitioner. On 22.1.2003, the State counsel sought further time. 7. When the instant petition came up for hearing on 15.1.2003, learned State counsel requested for time to get instructions as to whether the department is prepared to withdraw the FIR lodged against the petitioner. On 22.1.2003, the State counsel sought further time. However, at the hearing today, learned State counsel has argued that there is no room for withdrawing the FIR because when the petitioner filed Criminal Miscellaneous 913-M of 1996, and investigation was transferred to the Additional Superintendent of Police, Ambala Smt. Kala Ram Chandran, therefore, no allegations of mala fide would be sustainable. However, the State counsel said nothing on the questions, whether Shri Kartar Singh DSP and Panna Lal Sub Inspector were authorised to conduct the search under Section 165 of the Code or why any independent witness was not associated at the time of search. 8. Having heard learned counsel for the parties, I am of the considered view that the instant petition deserves to be allowed because the basis of the FIR is the search conducted and recovery effected by Shri Kartar Singh DSP, SCRB Madhuban and Panna Lal Sub Inspector, who had no authority to investigate or conduct the search of the petitioner. Section 165 of the Code has restricted and imposed limits on the power of the police in order to prevent the abuse of these powers and the same read as under :- "165. Search by police officer. - (1) Whenever an officer of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause to be made, for such thing in any place within the limits of such station. (2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person. (2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person. (3) If he is unable to conduct the search in person, and there is no other person competent to make the search at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place. (4) The provisions of this Code as to search-warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section. (5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate." 9. A perusal of section 165 shows (a) that power to search can be exercised by a police officer in charge of the police station or by the police officer authorised to investigate into any offence. Such officer instead of conducting search himself require any subordinate officer to conduct search in the circumstances mentioned in sub-section (3); (b) no general search is permissible and the search under this section must be for a particular thing or document or specified material necessary for the purposes of investigation; (c) there must be a reasonable ground for believing that incriminating articles necessary for the purposes of investigation may be found in the places situated within the limits of the police station and that incriminating articles cannot brook any delay; (d) a good procedural safeguard against roving searches is that he must record grounds of his belief as to the necessity of conducting such search and must also specify in writing incriminating articles for which the search is being conducted. Recording of reasons constitute an important step in the procedure for searches as has been laid down by the Supreme Court in State of Rajasthan v. Rehman, AIR 1960 Supreme Court 210. 10. Recording of reasons constitute an important step in the procedure for searches as has been laid down by the Supreme Court in State of Rajasthan v. Rehman, AIR 1960 Supreme Court 210. 10. Section 165 of the Code presupposes registration of a case against an accused and entrustment of the same to an investigating officer. These basic limits are found to be missing in the instant case. Moreover, there is no independent witness associated either at the stage of search or at any stage, to conclude that the petitioner was carrying a forged identity card and was using the same for illegal purposes of enjoying free travelling. The Additional Sessions Judge, therefore, failed to appreciate the legal requirement concerning recovery of the material on search which might constitute the basis for substantive offence like 379 and 171 the Indian Penal Code. 11. The question as to whether a search already made in contravention of the provisions of Section 165 of the Code has been considered by a Constitution Bench of the Supreme Court in the case of State of Punjab v. Baldev Singh, (1999)6 SCC 172. Holding that section 165 of the Code is not inconsistent with the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity the NDPS Act), the Supreme Court has held that those provisions would apply for effecting search, seizure or arrest under the NDPS Act also. It has further been held that when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code comes across a person in possession of Narcotic drug then he must follow from that stage onwards the provisions of the NDPS Act and continue investigation as provided under the Act. If the Investigating Officer is not an authorised officer then he must inform the authorised officer under the NDPS Act. It has been repeatedly held that failure to associate independent witnesses as required by Section 100(4) of the Code may in the facts and circumstances of the case vitiate the trial. Reference in this regard may be made to the judgment of the Supreme court in the case of Sahib Singh v. State of Punjab, (1996)11 SCC 685. It has been repeatedly held that failure to associate independent witnesses as required by Section 100(4) of the Code may in the facts and circumstances of the case vitiate the trial. Reference in this regard may be made to the judgment of the Supreme court in the case of Sahib Singh v. State of Punjab, (1996)11 SCC 685. Therefore, no search in the instant case could be made and once it is held that material discovered on search in such a case is not relevant then no case for the prosecution would survive for proof. 12. It is significant to note that sexual harassment of working women at their work places is on the increase. The Supreme Court in Vishaka and others v. State of Rajasthan and others, (1997)6 Supreme Court Cases 241 has held that sexual harassment of women at work places results in violation of fundamental rights to gender equality and the right to life and liberty enshrined in our Constitution under Articles 14, 15 and 21. The views of their Lordship on this aspect read as under :- "In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 16, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(e) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till Parliament enacts legislation to expressly provide measures needed to curb the evil. Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The executive power of the Union is, therefore, available till Parliament enacts legislation to expressly provide measures needed to curb the evil. Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. The international conventions and norms are, therefore, of great significance in the formulation of the guide-lines to achieve this purpose." 13. The aforesaid view has also been followed again by the Supreme Court in Apparel Export Promotion Council v. A.K. Chopra, (1999)1 Supreme Court 759. Criticising the growing tendency of sexual harassment of women at the workplaces, their Lordship reminded the State of its obligation to make some provisions in law against gender discrimination and observed as under :- "There is no gainsaying that each incident of sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the rights to life and liberty - the two most precious fundamental rights guaranteed by the Constitution of India. As early as in 1993, at the ILO Seminar held at Manila, it was recognised that sexual harassment of women at the workplace was a form of "gender discrimination against women". In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate. The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 ("CEDAW") and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is sound and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate the working environment. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate the working environment. These international instruments cast an obligation on the Indian State to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned." 14. The aforementioned observations made by the Supreme Court would sufficiently show that no sexual harassment of women at workplaces could be tolerated. In the instant case, the allegations levelled against the petitioner in the FIR in question could have been examined in the light of the allegations levelled by the petitioner against Shri Dharam Pal Yadav, Superintendent of Police (Computer), SCRB Madhuban. However, necessity to undertake such an exercise is obviated because Shri Dharam Pal Yadav, SP is not impleaded as respondent in the instant petition and he has no opportunity to controvert those allegations. Therefore, I do not wish to proceed any further and leave it to the petitioner to pursue her allegations if she is so advised. The petition is liable to succeed on the first ground. 15. For the reasons stated above, this petition succeeds and is allowed with costs. Accordingly, F.I.R. No. 581 dated 9.12.1995, under sections 420, 379, 170, and 171 of Indian Penal Code registered at Police Station Sadar, Karnal and the order of the Judicial Magistrate Ist Class, Karnal dated 9.3.1998 framing charge against the petitioner and the order of the Additional Sessions Judge, Karnal dated 1.12.2000 are quashed. Petition allowed.