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Bombay High Court · body

2009 DIGILAW 1452 (BOM)

Baba s/o Bhagwanji Dongre v. State of Maharashtra

2009-11-05

S.S.SHINDE

body2009
Judgment : 1. This application is filed praying for quashing and setting aside the judgment and order passed by Additional Sessions Judge, Gadchiroli in Criminal Revision Application No.9/2005 dated 27.02.2006 thereby rejecting revision application preferred against judgment and order passed by Chief Judicial Magistrate, Gadchiroli dated 07.06.2005 below Exh.-9 in Summary Criminal Case No. 1018/2005. 2. Background facts of the case are as under:- The applicant herein is Police Inspector working in Police Department since 1986. It is the case of the applicant that his initial appointment was as Police Sub Inspector. On 11.05.2003, the he came to be posted at Gadchiroli district and on 17.05.1993, the applicant was posted and joined as Police Inspector, Gadchiroli city. The applicant was posted as Police Inspector Crime Branch (Financial Cases), Gadchiroli. It is the case of the applicant that there is a Woman Cell in the Police Station, Gadchiroli and there are near about 7-8 members of the said Woman Cell inclining complainant. It is further case of the applicant that relations of the Police staff and the members of the Woman Cell were cordial and also relation of the applicant’s family and complainant-Nalanda Deshpande’s family were good. It is further case of the applicant that there was family friendship between both the families. It is further case of the applicant that wife of the applicant was instigated by the complainant to lodge complaint against the applicant since there was some minor family dispute. 3. On 26.01.2005 on the parade ground, after flag hoisting ceremony was over, the applicant found that the complainant, who is also Journalist and member of the Woman Cell, one Rohidas Raut (Journalist) and Anil Barsagade (Journalist) were coming out of the parade ground and the applicant greeted all the three persons about Republic Day and enquired with the complaint why she has instigated his wife when she is ready to reside with him. It is further case that, the complainant contacted the wife of the applicant on her mobile phone and again asked her to lodge a report against the applicant and also to attend the press conference. Wife of the applicant turn down this suggestion and hence the complainant has lodged report that the applicant had caught hold of her hand and threatened her. Wife of the applicant turn down this suggestion and hence the complainant has lodged report that the applicant had caught hold of her hand and threatened her. In pursuance to the filing of complaint, statements of Rohidas Raut and Anil Barsagade were recorded and according to the applicant, in their statements, they have stated that no untoward incident took place. 4. On 27.01.2005, the complainant approached the superior officer of the applicant and on 27.01.2005, First Information Report came to be registered against the applicant for the offence punishable under Section 354, 506 (2) and 509 of the Indian Penal Code being Crime No. 16/2005 at Police Station, Gadchiroli. After investigation was over, charge-sheet came to be filed before the Court. The applicant filed application for discharge under Section 239 of the Code of Criminal Procedure in Criminal Case No. 1018/2005 at Exh.-9. The said application came to be rejected by the trial Court. Being aggrieved by that, the present applicant filed Criminal Revision Application No. 9/2005 before the District and Sessions Judge, Gadchiroli. The District and Sessions Judge, Gadchiroli by judgment and order dated 27.02.2006 dismissed the revision filed by the applicant, aggrieved by that this Criminal Application is filed by the applicant under Section 482 of the Code of Criminal Procedure. 5. Learned counsel for the applicant submitted that after flag hoisting ceremony in the routine manner, the applicant, who is Police Officer went for shaking hands with other persons namely Rohidas Raut and Anil Barsagade and also tried to greet the complainant by doing the same thing and, therefore, the act of the applicant cannot be said to be an offence so far as Section 354 of the Indian Penal Code is concerned. The learned counsel further submitted that the Courts below have committed error in holding that the offence punishable under Section 354 of outraging modesty is attracted in spite of the fact that the witnesses have not supported the case of the complainant and furthermore shaking of the hands will not amount to be outraging modesty of a woman and specifically a woman who belongs to Woman Cell attached to the Police Department since long. The learned counsel further submitted that to attract provisions of Section 354 or Section 506 (2) and 509 of the Indian Penal Code, there should be criminal intimidation and in the absence of that no provision of Section 506 of the Indian Penal Code are attracted. The learned counsel further submitted that though the alleged incident took place on 26.01.2005, offence was registered on 27.01.2005. It is further submitted that no case is made out for holding trial and, therefore, any further proceeding based upon Crime No. 16/2005 would be the abuse of process of law and the Court. It is further submitted that the applicant was performing his duty and no sanction as required under Section 197 of the Code of Criminal Procedure was obtained by non applicant to prosecute the applicant. The learned counsel further submitted that the applicant and the complainant have attended various social awareness programs and, therefore, merely because the applicant tried to shake hands with the complainant after flag hoisting ceremony on 26.01.2005, shall not attract any of the offence. It is further submitted that the Courts below failed to appreciate evidence of the complainant who is member of Woman Cell was instigating the wife of applicant to lodge report against the applicant. When she found that wife of the applicant is not taking any steps, she has lodged false complaint with wrongful attitude. The learned counsel further invited my attention to the contents of application, grounds therein and annexures thereto and submitted that this application deserves to be allowed by setting aside impugned judgment and order passed by Courts below. 6. Learned A.P.P. invited my attention to the evidence recorded by the Courts below and submitted that both the Courts, after appreciation of the contentions of the rival parties and after taking into consideration statements of witnesses, have rightly rejected the application for discharge and, therefore, this Court may not invoke the provisions of Section 482 of the Code of Criminal Procedure in the instant case. 7. I have heard learned counsel appearing for the applicant at length and learned A.P.P. for the State. Perused the judgment and order passed by Judicial Magistrate First Class. In para (6) of the judgment the learned Magistrate has taken into consideration the contents of complaint, statement of witnesses and came to the conclusion that the prosecution has made prima facie triable case. Perused the judgment and order passed by Judicial Magistrate First Class. In para (6) of the judgment the learned Magistrate has taken into consideration the contents of complaint, statement of witnesses and came to the conclusion that the prosecution has made prima facie triable case. The Court further observed that whether there was evidence to outrage modesty or not is to be inferred from the act of the accused and depends upon the reaction of the complainant. At this stage, the presumption is positive in favour of the prosecution. Whether the allegations are true or false still can be decided on merits and prima facie the case is a triable case. The learned Magistrate has also appreciated the points raised by applicant about the sanction under Section 197 of the Code of Criminal Procedure for prosecuting the applicant and came to the conclusion that only when the act is done in official capacity, it is necessary to seek sanction as required under Section 197 of the Code of Criminal Procedure. The alleged act has no connection with the discharge of official duty, therefore, no such sanction is necessary. 8. The Additional Sessions Judge, Gadchiroli, while entertaining the Criminal Revision Application filed by the applicant, in para (10) has recorded that if the statement of the complainant is appreciated in the light of two witnesses then version of the complainant so stated in the First Information Report inspires confidence. The learned Judge has further referred to the statement of complainant and observed that her statement at this stage has to be accepted as true. The statement of the complainant that the applicant caught hold of her with an intention to outrage her modesty cannot be kept out of consideration simply for the reason that probative value of her statement cannot be gone into. The learned Judge has further observed that if the report lodged by the complainant, her submissions are considered as whole then it gives sufficient material against the present applicant for framing charge for the offence punishable under Section 354 and 506 of the Indian Penal Code. Therefore, the revisional Court declined to disturb the order passed by the learned Judicial Magistrate First Class. 9. Therefore, the revisional Court declined to disturb the order passed by the learned Judicial Magistrate First Class. 9. After hearing learned counsel for the applicant at length and on perusal of the statements of witnesses and statements of the complainant which are placed on record by the applicant, I am of the considered view that prima facie case has been made out by the prosecution to proceed against the present applicant. It would not be in the interest of the applicant to go into the details of the submissions of other witnesses and complainant since the applicant will have to face charges and further trial. However, it would be suffice to say that on careful perusal of the statements of witnesses namely Rohidas Raut and Anil Barsagade, it appears to me that this is not a simple case of shaking hands but there appears vengeance attributed towards complainant. The applicant uttered some words to the complainant in respect of instigating the complainant to his wife. The conversation between the applicant and complainant about instigating wife of the applicant has been referred by the witness. On plain reading of the statement of witnesses, it appears to me that prima facie case is made out by prosecution to frame charge and proceed with the complaint. 10. As concluded by the Judicial Magistrate First Class that the act done by the applicant was not in due discharge of his official capacity and, therefore, sanction as required under Section 197 of the Code of Criminal Procedure is not necessary, is required to be confirmed. 11. Both the Courts have, on appreciation of the statements of witnesses as well as contents of the complaint, concurrently held that the prosecution has made prima facie case to frame charge and proceed further against the applicant. No case is made out for interference in the present matter. Present application is, therefore, dismissed. Rule discharged. It is, however, made clear that the observations made in this order are made purely to decide the controversy involved in the present matter and shall not be read as part of evidence in any proceeding.