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2011 DIGILAW 564 (GAU)

Promothesh Ranjan Das v. State of Assam

2011-06-30

I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. With the help of this application, made under Section 482 Cr.P.C, the petitioner, who holds the rank of Inspector General of Police, and who is presently under suspension, has sought for quashing of the First Information Report (in short, 'FIR'), which gave rise to Khatkhati Police Station Case No. 09/2011 (corresponding to GR Case No. 93/2011) under Section 354 IPC and which has, eventually, led to the submission of charge-sheet, against the petitioner, under Section354 IPC and is pending for trial in the Court of Magistrate, 1st Class, Diphu. 2. I have heard Mr. B. Choudhury, learned counsel, for the accused petitioner, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. 3. The FIR, which has, on completion of investigation, given rise to the charge-sheet, was lodged, with Khatkhati Police Station, Karbi Anglong, on 04.02.2011, by Dr. (Ms.) R. Chetry, Medical & Health Officer, M.I. Room, Second Assam ASRF Battalion, Karbi Anglong, alleging, as under: To, The Officer-in-Charge, Khatkhati Police Station, Karbi Anglong, Assam. Sub : FIR against Dr. P.R. Das, IPS, I.G., Civil Defence & Commandant General of Home Guards, Assam, Guwahati of physical abuse on 03.02.2011 on duty. Sir, With reference to the cited example subject, I would like to state that following for your kind intervention and investigation into the matter to award exemplary punishment to Dr. P.R. Das, IPS, IG That Sir, on the fateful day of 3rd Feb., 2011, Dr. P.R. Das, IPS, IG visited our MI room, 2nd ASRF Bn., Karagaon, Karbi Anglong, Assam, at around 11.00 a.m. for inspection. In the MI room, he was telling about measurement of his blood pressure and blood sugar. So, I told him, I will do the necessary testing in the MI room itself, but he insisted to me to come to Guest House for medical check-up and testing at 1.00 p.m. So, accordingly, after completing my OPD duty at MI room, I went to Guest House of our battalion to meet him for his testing. I went along with Mr. Dipankar Sarma, Pharmacist, MI room, to Guest House. So, we were sitting at drawing/sitting room at our Battalion Commandant Mr. Taramol Deka was also there in the Guest House. Our IG, Dr. I went along with Mr. Dipankar Sarma, Pharmacist, MI room, to Guest House. So, we were sitting at drawing/sitting room at our Battalion Commandant Mr. Taramol Deka was also there in the Guest House. Our IG, Dr. P.R. Das, IPS, came to the sitting room and I asked him to check the blood pressure in the sitting room itself, but he insisted me to come inside the room and do necessary checking. So, myself and Commandant went inside the room, but our IG asked Commandant to go to office and he will come after sometime. So, I was alone in the room. I checked the blood pressure and after that, I called our pharmacist to come inside and do blood sugar testing. I was sitting in the chair inside the room. After, blood sugar test, pharmacist went outside. The IG asked me to check the pulse. I told him that I have already noted the pulse, but he said without touching how you could measure the pulse. So I did pulse checking. In the process pulse checking, he was telling me that he likes me so much and he touch my left hand and left cheek and give flying kiss. His intention was bad, so I forced his hand out and left the Guest House. If, I have surrendered during his first move, he would have advance further to destroy my modesty. The following points may be noted about the ill intention of Dr. P.R. Das, IG 1. He refused to do blood pressure checking at MI room as there were other staff also, so he called to Guest House with bad intention. 2. In the Guest House I insisted to do checking at common sitting room, but also he refused and asked me to come inside the room and do checking on the bed with lying position. It shows his bad intention. 3. He insisted to do pulse checking which was not very necessary. His intention was not good as I have noticed his way of saying and talking with me. He asked me to do second time pulse checking with watching clock. 4. In the room, our Commandant was there with me, but he asked Commandant to go to office and come at 2.30 p.m. for lunch. His intention was very bad. So he asked him to go to make to alone for his ill motive. He asked me to do second time pulse checking with watching clock. 4. In the room, our Commandant was there with me, but he asked Commandant to go to office and come at 2.30 p.m. for lunch. His intention was very bad. So he asked him to go to make to alone for his ill motive. As a doctor, our duty is to serve and save the human being not thinking of day or night, either male or female. I have been discharging my duties with all my abilities for the benefit of people not but due to his incident, my moral and enthusiasm to work has been degraded. So, I request your esteemed authority to look into the matter and investigate the incident to award severe punishment to Dr. P.R. Das, IPS, IG to set example to those people who try to destroy the modesty of women and give courage to women folk. Matter may be kindly taken up on top priority. Thanking you Sir, Yours faithfully, Sd/- (illegible), 04.02.2011 [Dr. (Mrs.) Ranjana Chetry] Medical & Health Officer-I MI room, 2nd ASRF Bn. Karagaon, Bokajan, Karbi Anglong (Assam). Copy to: 1. The Commandant, 2nd ASRF Bn., Karagaon, Bokajan, Karbi Anglong, Assam, for information & necessary action. Sd/- (illegible), 04.022011 [Dr. (Mrs.) Ranjana Chetry] Medical & Health Officer-I MI room, 2nd ASRF Bn. Karagaon, Bokajan, Karbi Anglong (Assam). Received and registered Khatkhati PS Case No. 09/2011 U/S354 IPC. Sd/ Illegible (SEAL) 04.02.2011 Certified to be true copy Sd/- Advocate (Emphasis added) 4. The petitioner seeks quashing of the FIR and, consequently, the charge-sheet on the ground that whole case against him is a result of conspiracy hatched by Shri Rajendra Kumar, Additional Director General (Home Guard), Assam Police, in league with Taramol Deka, Commandant, 2nd ASRF Battalion, Shri H.K. Chakraborty, Senior Staff Officer (G), Office of D.G. Civil Defence and Commandant General, Home Guard, Assam Police, and Dr. (Ms) Ranjana Chetri, Medical & Health Officer-I, M.I. Room, 2nd ASRF Bn., Karagaon, Bokajan, Karbi Anglong, inasmuch as the petitioner had submitted a report of misappropriation of money and various other dereliction of duty on the part of the Commandant and others of the said battalion. (Ms) Ranjana Chetri, Medical & Health Officer-I, M.I. Room, 2nd ASRF Bn., Karagaon, Bokajan, Karbi Anglong, inasmuch as the petitioner had submitted a report of misappropriation of money and various other dereliction of duty on the part of the Commandant and others of the said battalion. In short, the petitioner seeks quashing of the FIR as well as the charge-sheet on the ground that the FIR, lodged against him, is based on false and concocted allegations, it is a result of conspiracy and manipulation in order to suppress the truth. 5. In effect, thus, the petitioner has approached this Court to get the FIR and the charge-sheet quashed on the ground that this Court shall hold the contents of the FIR as false and concocted and this, in turn, would mean that one has to not only hold the informant unreliable, but also unworthy of trust. Is this possible in law ? 6. Before entering into the merit of the petitioner's case, it is necessary to point out that the law, with regard to the quashing of criminal complaint or FIR, is no longer res integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. I may refer to the case of R.P. Kapoor v. State of Punjab : AIR 1960 SC 866 , wherein the question, which arose for consideration, was whether a first information report can be quashed under Section 561A of the Code of Criminal Procedure, 1898. The Court held, on the facts before it, that no case for quashing of the proceeding was made out; Gajendragadkar, J. speaking for the Court, however, observed that though, ordinarily, criminal proceedings, instituted against an accused, must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, consists of cases, where the allegations in complaint or the FIR, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the complaint or the FIR in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. 7. From the case of R.P. Kapoor (supra), it becomes abundantly clear that when a mere look into the contents of a complaint or FIR shows that the contents thereof, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint or the FIR, as the case may be, shall be quashed. 8. As a corollary to what has been discussed above, it is also clear that if the contents of a complaint or an FIR constitute offence, such a complaint or FIR cannot be quashed except where the complaint or the FIR is, otherwise also, not sustainable in law. 9. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Supreme Court, in the leading case of State of Haryana and Ors. v. Bhajanlal and Ors. reported in 1992 Supp (1) SCC 335, observed as follows: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under Section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of the any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised:- (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegation in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal private grudge. (Emphasis is added). 10. In the case of Bhajanlal (supra), the Supreme Court gave a note of caution on the powers of quashing of criminal proceeding in the following words: 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. (Emphasis is added). 11. (Emphasis is added). 11. It is clear from a close reading of the principles laid down in the case of R.P. Kapoor (supra) and Bhajanlal (supra) that broadly speaking, quashing of a First Information Report or a complaint is possible (a) when the allegations made in the First Information Report or the complaint, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR. or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 12. It is, thus, apparent that in a quashing proceeding, it is, ordinarily, not, within the ambit of the powers of the High Court, under Section 482 Cr.P.C., to determine the truth, veracity, correctness or otherwise of the accusations made in the FIR or a complaint. In the case at hand, too, therefore, this Court has to proceed on the assumption that the allegations, made in the complaint, are true and, then, determine whether the contents of the complaint, if assumed to be true, disclose commission of any offence under the Indian Penal Code or whether the allegations, made in the FIR, are so absurd or inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 13. In the light of the position of law, as discussed above, namely, that an FIR cannot be quashed if the allegations made therein, when assumed to be true, make out a cognizable offence or when the allegations made therein are so absurd or inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 14. 14. In the present case, when the FIR is read, as a whole, it becomes clear that according to what the informant alleges, the petitioner had told her that he likes her very much, he touched her hand, her left cheek and gave her a flying kiss. In this regard, the informant also alleges that the petitioner refused to get his blood pressure checked at the M.I. Room and wanted that his blood pressure be checked in the Guest House and, at the Guest House, while the informant insisted on checking the blood pressure in the sitting room, the petitioner refused and asked the informant to come inside the room and check the blood pressure, while he was lying on the bed. The petitioner also insisted that his pulse be checked. In the room, Commandant was also with the informant,, but the petitioner asked the Commandant to leave and come, at 2.30 p.m. for lunch. If these allegations are true, whether these allegations would constitute an offence under Section 354 IPC ? 15. My query for an answer to the above question brings me to Section 354 IPC, which reads: 354. Assault or criminal force to woman with intent to outrage her modesty. 354. Assault or criminal force to woman with intent to outrage her modesty - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 16. A careful reading of Section 354 IPC shows that whoever 'assaults' or uses 'criminal force' to any women, intending to outrage her modesty or knowing it to be likely that he will thereby outrage her modesty, commits an offence under Section 354 IPC. 17. The question, therefore, is what 'assault' is and what 'criminal force' means ? These questions bring me to the definition of 'force' as contained in Section 349 IPC, which reads: 349. Force. 17. The question, therefore, is what 'assault' is and what 'criminal force' means ? These questions bring me to the definition of 'force' as contained in Section 349 IPC, which reads: 349. Force. A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling: Provided that the person causing the motion, or change or motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described : First - By his own bodily power. Secondly - By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person. Thirdly - By inducing any animal to move, to change its motion, or to cease to move. 18. From a bare reading of Section 349 IPC, it becomes" clear that anyone, who causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling, shall be treated to have used 'force' :provided that the person, causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion, in one of the three ways, one of such ways being 'by his own bodily power'. 19. The definition of 'assault', as given in Section 351 IPC, reads: 351. Assault - Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. 20. Assault - Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. 20. A careful reading of Section 351 IPC shows that whoever makes any gesture, or any preparation, intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he, who makes that gesture or preparation, is about to use 'criminal force' to that person, is said to commit an 'assault'. Thus, whoever makes even a gesture intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he, who makes that gesture or preparation, is about to use 'criminal force' to that person, is said to commit an 'assault'. 21. What, therefore, is a 'criminal force'? 'Criminal force' is defined, by Section 350 IPC, to mean whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending, by the use of such force, to cause, or knowing it to be likely that by the use of such force, he will cause, injury, fear or annoyance to the person to whom the force is used, is said to use 'criminal force' to that other. 22. Thus, as long as a person intentionally uses 'force' to any person without that person's consent in order to commit any offence, such use of 'force' has to be regarded as 'criminal force'. 23. In the present case, the petitioner allegedly touched the hands of the informant, who is a woman and also touched her left cheek and since it was allegedly done without the consent of the informant, the petitioner shall be treated to have used 'criminal force'. Because of the use of such criminal force to a woman, placed in a situation in which the informant was allegedly placed, the petitioner must be held, albeit tentatively and at this stage, to have committed an offence under Section 354 IPC. 24. Because of the use of such criminal force to a woman, placed in a situation in which the informant was allegedly placed, the petitioner must be held, albeit tentatively and at this stage, to have committed an offence under Section 354 IPC. 24. In the present case, the gesture of allegedly giving flying kiss by the petitioner has to be treated, in the present case, as an act done, which he knew was a gesture, which would cause the informant to apprehend that the petitioner was about to use 'criminal force' in the sense that he would use 'force', without that person's consent, in order to commit an offence, the offence being the offence of outraging the modesty of the informant, who is a woman. 25. During the course of his argument, Mr. Choudhury has tried to show that the petitioner has been made a target on account of the fact that he had made a report of misappropriation of money in the functioning of the said battalion. In this regard, it needs to be noted that the alleged occurrence had taken place on 03.02.2011, the informant lodged the first information report on 04.02.2011; whereas the petitioner submitted his report on 08.02.2011. The petitioner relies, in this regard, on his tour diary too. This tour diary is nothing, but a document prepared by the petitioner unilaterally. Unless, therefore, this Court comes to a positive finding that the allegations, made in the FIR, are wholly or, at least, substantially false, the question of quashing of the FIR does not arise and if the FIR cannot be quashed, the charge-sheet, which is the result of the investigation, which substantially corroborates the allegations made in the FIR, cannot be quashed either. 26. Referring to the various statements, which have been recorded under Section 161 CrPC, Mr. Choudhury has attempted to show that these statements would make the statement of the informant unreliable. The question as to whether the statement of the informant can or cannot be believed is a question of fact, which can be determined only at the trial and not in this quashing proceeding, for, even if the informant alone is believed by the Court, there is legally no impediment in convicting the accused petitioner. 27. The question as to whether the statement of the informant can or cannot be believed is a question of fact, which can be determined only at the trial and not in this quashing proceeding, for, even if the informant alone is believed by the Court, there is legally no impediment in convicting the accused petitioner. 27. Coupled with the above, it is also worth pointing out that in her statement, recorded under Section 161 Cr.P.C, the informant corroborated her allegations made in the FIR, what is also important to note that in her statement, the informant had stated that Pharmacist, Dipankar Sharma, was present outside the room, where blood pressure was checked. The informant had also alleged that on-coming out of the guesthouse, she had gone to her residence with Dipankar Sharma in a car and, on the way, she had told the incident to Dipankar Sharma and also to her husband. 28. Dipankar Sharma has substantially corroborated the informant's statement inasmuch as he has deposed to the effect that the petitioner visited the medical unit, he enquired about his blood sugar and he asked his blood pressure to be checked, at about 1 p.m., in the guesthouse. What is significant to note, in the statement of Dipankar Sharma, is that according to him, the petitioner, the Commandant and also the Medical Officer, initially, sat in the drawing room. Thereafter, they entered the rest room of the petitioner and about 5/10 minutes thereafter, the Commandant left and the Medical Officer, i.e., the informant, checked the blood pressure of the informant and called him (Dipankar Sharma) to check his blood pressure and blood sugar, which he did; but the petitioner told that blood pressure check was not correct, whereupon he (Dipankar Sharma) went out and what the informant had done thereafter, he did not see; but about 10 minutes thereafter, the informant came out, took him in her car and told him that the manner of the present petitioner was not good and she would not work any more. She dropped him (Dipankar Sharma) near the canteen and left for her residence. In the evening, at about 6 p.m., the Medical Officer, accompanied by her husband, met The officers at Karagaon and told them about the bad manner of the present petitioner. She dropped him (Dipankar Sharma) near the canteen and left for her residence. In the evening, at about 6 p.m., the Medical Officer, accompanied by her husband, met The officers at Karagaon and told them about the bad manner of the present petitioner. The fact that immediately after coming out of the room, the informant had made a complaint to Dipankar Sharma that she would not work any more shows her annoyance with the conduct and behaviour of the present petitioner. Whether the allegations, made against the petitioner, is or is not true was, and shall remain, a question of fact. These allegations have been investigated and having been prima facie found true, charge-sheet has been submitted and, on the basis of the charge-sheet, proceedings have been initiated against the petitioner. 29. In the circumstances, as indicated above, this Court is not in a position to hold, far less confidently, that the allegations, levelled in the FIR, are false and/or that the contents of the FIR, when read as a whole, make out no case of commission of any offence under Section 354 IPC or that the allegations are so absurd or inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. This Court, therefore, sees no reason to interfere with the FIR and consequently, with the charge-sheet. 30. In the result and for the reasons discussed above, this Criminal Petition fails, the same is not admitted and shall accordingly stand dismissed. Petition dismissed