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2024 DIGILAW 419 (JHR)

Shashi Kant Kushwaha v. State of Jharkhand

2024-04-18

SANJAY KUMAR DWIVEDI

body2024
JUDGMENT : SANJAY KUMAR DWIVEDI, J. Heard the learned counsel appearing on behalf of the petitioners, the learned counsel appearing on behalf of the respondent State and the learned counsel appearing on behalf of the O.P.No.2. 2. In this petition, the prayer has been made for quashing of the entire criminal proceeding including the order taking cognizance dated 08.11.2019, in connection with SC/ST Complaint Case No.30/2018, pending in the court of learned Special Judge, Jamtara. 3. The complaint case has been filed alleging therein that complainant being a lady constable having police No.133 belongs to Schedule Cast Community known to all accused persons and posted as Constable at police line, Jamtara. She has further stated that accused No. 1 is Superintendent of Police, Jamtara, accused No. 2 and 3 (herein Petitioner no. 1 and 2) were posted as Sergeant Major and 1/C Confidential Reader of accused No.1 respectively at Jamtara, accused No. 4 was posted as Officer-in-Charge of Narayanpur P.S. under Jamtara District, accused No. 5 was Officer-in- Charge of Mahila Police Station at present posted with CID, Ranchi, while accused no. 6 was Sub- Divisional Police Officer, Jamtara, both were members of internal Complaint Committee on sexual harassment, accused No. 7 is Officer -in Charge of Narayanpur Police Station and accused No. 8 was posted as Sergeant Major in Police Line under Jamtara. The complainant has further alleged that she was sexually harassed by accused No. 2 and 3 and she has made allegation against accused persons for the allegation of sexual assault, humiliation harassment and for being subjected to vexatious and false criminal charges, as a result of criminal conspiracy. She has further alleged that she was deputed in the office of Accused No. 2 in the month of May, 2017 where she as intentionally discriminated against and not allowed to enter in to the officer of Accused No.2 and when she made a complaint to him, she was threatened to dire consequences. She was told by accused No. 2 that it was the wish of accused No.1 that she should be not be allowed to enter in her office she has further alleged that after few days, she was directed to report to confidential section at the residence office of accused No. 1, where she was required to monitor C.C.T.V on computer. She was told by accused No. 2 that it was the wish of accused No.1 that she should be not be allowed to enter in her office she has further alleged that after few days, she was directed to report to confidential section at the residence office of accused No. 1, where she was required to monitor C.C.T.V on computer. After working of two weeks, when she came out from the office of accused No.1, accused No.3 scolded her badly as to how did she dare to meet accused No.1 without his permission and then on 24.06.2017 in the afternoon while the complainant was monitoring the C.C. T.V in doing her job, accused No. 2 with ill intention, sat beside the complainant and with sexual intent, caught hold of her tightly. Complainant tried to release herself but taking advantage of his administrative superiority, accused No. 3 told her that if she acted according to his wish, she would be happier get better posting and make money. Pushing him away, the complainant came out form the room and she was fearful but coming from a member of Schedule Caste Community, she could not muster strength to challenge the might of accused No. 3, who has direct access to accused No.1. Thereafter, accused No. 3 having knowingly that complaint came from weaker section, kept on troubling her sexually wherever he found her alone. He intentionally insulted, humiliated and intimidated the complainant. After few days, accused No. 3 tried to use force against her with sexual intent and when she objected she was threatened to be given punitive posting and ultimately directed to report back in police line, where accused No.2 abused and insulted her and with malicious intent commanded her to go to Sahebganj. The matter was reported to accused No.1 who gave her false promise to look in to the matter. On 22.08.2017 accused No.2 called her and humiliated and told her to pay Rs. 20,000/- to his bodyguard for her posting and he also asked for sexual favour. She was threatened for dismissal for her job. The matter was reported to accused No.1 who gave her false promise to look in to the matter. On 22.08.2017 accused No.2 called her and humiliated and told her to pay Rs. 20,000/- to his bodyguard for her posting and he also asked for sexual favour. She was threatened for dismissal for her job. Complainant made written complaint to accused No.1 and other police authority but no action was taken by Accused No. 1 and Accused No.1 sat over DIG 's letter for a day until Zonal I.G. Dumka herself had to be suspend accused No. 2 and 3 compelling the accused 1 to constitute internal Complaint Committee to make an enquiry into her complaint relating to sexual harassment in accordance with sexual harassment in workplace (Prevention, Prohibition and Redressal), Act 2013 and as such accused No. 1 with accused No. 5 and 6 with criminal malicious intent and in order to screen the offender by violating the provision of the aforesaid Act constituted the committee and after enquiry, finally submitted report that the charges of sexual harassment could be established and they exonerated the accused No. 2 and 3 from the grave charges leveled against them. Complainant has further alleged that two other lady police namely Raj Kumari and Poonam Kumari has also made allegation of sexual harassment even then the committee exonerated accused No. 2 and 3. she has further alleged that accused No.1 being S.P and being public servant willfully neglected her duties towards prosecuting accused No.2 and 3 and in conspiracy with accused No.5 and 6 gave a clean chit to accused No.2 and 3 during enquiry committed by internal complaint committee. The complaint has further alleged that she raised her voice at different levels and she found that she was falsely implicated in malicious prosecution as a result of active connivance and conspiracy of all the accused persons. The complaint was implicated in a false criminal case in connection with Narayanpur P.S Case No. 250/2017 u/s 379 of IPC instituted on the basis of report of Dulari Devi against unknown police personnel and subsequently, the name of the complainant was given by the manufacturing false record and evidences with an allegation that police party, consisting the complaint as well, while conducting a raid in the house of dulari Devi, stole Rs. 15000/- from her house and the complainant was alleged to have taken that amount and her name was inserted in that case subsequently. Accused No.4 gave a report to accused No. 1 leading to her suspension and initiation of departmental enquiry against her but the Zonal 1.G. Dumka intervened and after having come to know about the plight of complainant and the false criminal charges against her, supervised and reviewed Narayanpur P.S. Case No. 250/2017 and fount the case to be false in her detailed supervision and the supervision report would show that all accused person conspired to get a false and malicious case instituted against complainant Accused No.7 by committing illegality took the charge of investigation of Narayanpur P.S Case No. 250/2017 and with malafide intention inserted the name of complaint the departmental enquiry against the complainant by giving his finding tearing the notice of the complaint. The complainant further alleged that the report submitted by internal complaint committee by accused No. 1, 5 and 6 was false and motivated and found incorrect by Zonal I.G and that was against the violation of the act relating to sexual harassment at work place. 4. Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petitioners submits that the present case has been lodged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 mala-fidely against the petitioners as the complainant himself is facing prosecution in Narayanpur P.S. Case No.250 of 2017 wherein the charge sheet has been filed which is at the stage of evidence and as a counter-blast the present case has been filed by the complainant on the false allegation of sexual harassment against the petitioners and other police officials including the S.P., Jamatara. He submits that in the sexual harassment allegation, the S.P. has constituted a committee in light of the provisions made in Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act, 2013 against the complainant’s colleague including the petitioners. He submits that the said committee has inquired into the matter and full opportunity was provided to the complainant and thereafter the committee has exonerated the petitioners and others. He submits that thereafter the present case has been filed. He submits that the said committee has inquired into the matter and full opportunity was provided to the complainant and thereafter the committee has exonerated the petitioners and others. He submits that thereafter the present case has been filed. He submits that if a malicious prosecution is there and even if the cognizance is there under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the High Court can interfere under section 482 Cr.P.C. He relied in the case of ‘Manoj Kumar Sharma v. State of Chhattisgarh’, (2016) 9 SCC 1 . Paragraph nos.32, 36 and 37 of said judgment are quoted hereinbelow: 32. In the above backdrop, it is also imperative to discuss the scope of inherent power of the High Court under Section 482 of the Code. The appellants before us filed a petition under Section 482 of the Code for quashing of the FIR on the ground that the FIR was filed after a delay of 5 (five) years and is barred by territorial jurisdiction. The High Court, on the other hand, after taking note of the fact that the investigation is in the final stage in the matter and a charge-sheet is ready to be filed before the Judicial Magistrate First Class, ordered for its continuance without taking into consideration that it is barred by law. The court at Durg did not take notice of the fact that there is a legal bar engrafted in the matter for its continuance and the proceedings have been maliciously instituted after a delay of five years with an ulterior motive for wreaking vengeance on the appellants. 36. In view of the above discussion, we are of the considered opinion that the allegations made in the FIR are inherently improbable and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the appellants herein. Further, to invoke inherent jurisdiction under Section 482 of the Code, the High Court must be fully satisfied that the material produced on record is based on sound, justifiable and reasonable facts. 37. In the case on hand, malicious prosecution was instituted by the brother of the deceased after a period of five years that too on the basis of anonymous letters. There was no accusation against the appellants before filing of the FIR. 37. In the case on hand, malicious prosecution was instituted by the brother of the deceased after a period of five years that too on the basis of anonymous letters. There was no accusation against the appellants before filing of the FIR. The allegations are vague and do not warrant continuation of criminal proceedings against the appellants. Also, the court at Durg has no territorial jurisdiction because cause of action, if any, has arisen in Ambala. The criminal proceeding is grossly delayed and a result of belated afterthought. The High Court failed to apply the test whether the uncontroverted allegations as made prima facie, establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit the prosecution to continue. The High Court did not apply its mind judiciously and on an incorrect appreciation of record, ordered for continuance of the investigation on a petition under Section 482 of the Code. This power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. 5. On these grounds, he submits that the entire criminal proceeding may kindly be quashed. 6. The learned counsel appearing on behalf of the respondent State submits that on the complaint petition, the learned court has been pleased to take cognizance. He submits that even in the complaint petition itself it is stated that the committee has been constituted by the S.P. and committee has exonerated the petitioners and others and thereafter the complaint case has been filed. 7. Learned counsel appearing on behalf of the O.P.No.2 vehemently opposed the prayer of quashing and submits that the case is lodged under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and in view of that section 482 Cr.P.C petition is not maintainable. He submits that there is provision of appeal under section 14-A of the said Act and in view of that, the appeal can lie. He relied in the judgment of a coordinate Bench rendered in the case of Chandra Bhushan and Another v. The State of Jharkhand and Another [Cr.M.P. No.4632 of 2022]. He submits that there is provision of appeal under section 14-A of the said Act and in view of that, the appeal can lie. He relied in the judgment of a coordinate Bench rendered in the case of Chandra Bhushan and Another v. The State of Jharkhand and Another [Cr.M.P. No.4632 of 2022]. He further submits that in solemn affirmation as well as in the complaint and in the cognizance order, all the facts have been considered and thereafter the learned court has been pleased to take cognizance and in view of that, the entire criminal proceeding may not be quashed at this stage. 8. The Court has gone through the materials on record including the complaint petition as well as the order taking cognizance. In the complaint petition itself, in paragraph no.5, it is disclosed that inter-complaint committee was constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act, 2013 and the said committee, after examining all the aspects including the complainant, has exonerated the petitioners and other officials. In the complaint petition, a reference of “Vishaka” case has also been made and in view of that, it is admitted position that after exoneration by the said committee, the present complaint case has been filed. The Court finds that the said complaint was not on affidavit, however, the learned court has proceeded further and has taken cognizance. If such allegations are there against higher officials of the police, at least, the complaint was required to be filed on affidavit, and that too, when statutory committee with regard to sexual harassment, has exonerated the accused persons. It is against the law laid down by the Hon’ble Supreme Court to avoid malicious proceeding in light of judgment of the Hon’ble Supreme Court in the case of “Priyanka Shrivastava and Another v. State of Uttar Pradesh and Others”, reported in (2015) 6 SCC 287 . It appears on looking to the order taking cognizance that much endeavour has been taken in taking cognizance and the cognizance order is in 16 pages and the facts of the complaint have been disclosed in the order taking cognizance. Such a long order is not required for taking cognizance and only prima-facie case is required to be looked into and the further requirement is to disclose the prima-facie case in the order taking cognizance. Such a long order is not required for taking cognizance and only prima-facie case is required to be looked into and the further requirement is to disclose the prima-facie case in the order taking cognizance. Looking into the further contents of the complaint petition, it transpires that every care has been taken in drafting of the complaint petition so that the ingredients of the relevant sections may be made out. If a malicious prosecution is being filed, every care is being taken in filing of the F.I.R or the complaint so that the ingredients of relevant sections may be made out and if such a situation is there, the High Court is having more responsibility to find out the truth and is required to read the things in between the lines. It appears from the contents and the way in which the drafting of the complaint petition is made out, in absence of any affidavit, maliciously the present complaint case has been filed after exoneration by the inquiry committee constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act, 2013. In the complaint petition, even the S.P., Chatra, the Officer Incharge Narayanpur and the then Officer Incharge of Mahila Police Station have been made accused. However, the learned court has not been pleased to take cognizance against those persons and has taken cognizance against only these two petitioners. 9. If a malicious prosecution is filed and the Court comes to the conclusion that maliciously the present case has been lodged and even if Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is alleged to be there, the Court can exercise power under section 482 Cr.P.C or under Article 226 of the Constitution of India. Since, maliciously the present case has been filed, the objection of the learned counsel for the O.P.No.2 is not accepted by the Court and the Court holds that if the case is maliciously filed, section 482 Cr.P.C application is maintainable. This view of this Court has been fortified in view of the judgment of the Hon’ble Supreme Court in the case of Ramawatar v. State of Madhya Pradesh, reported in 2021 SCC OnLine SC 966 as well as B. Venkateswaran and Others v. P. Bakthavatchalam, reported in 2023 SCC OnLine SC 14. This view of this Court has been fortified in view of the judgment of the Hon’ble Supreme Court in the case of Ramawatar v. State of Madhya Pradesh, reported in 2021 SCC OnLine SC 966 as well as B. Venkateswaran and Others v. P. Bakthavatchalam, reported in 2023 SCC OnLine SC 14. As such, if malicious prosecution is there and even if the sections under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made, the High Court can exercise power under Article 226 of the Constitution of India or section 482 of the Cr.P.C. This maintainability aspect has been dealt in detail by this Court while deciding the preliminary issue with regard to said objection of the learned counsel for the O.P.No.2 in W.P.(Cr.) No.371 of 2023 along with Analogous criminal writ petitions which was decided on 07.11.2023 and the preliminary issue was answered saying that if maliciously the case is filed, and even if the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is mentioned, the High Court can exercise power under section 482 Cr.P.C. The Judgment relied by the learned counsel for the O.P.No.2 in Cr.M.P. No.4632 of 2022, the facts were otherwise and, in that case, the Court found that the case is made out and that is why it was held that only section 14-A of the Act is the remedy in that case, and the facts of the present case is different. In view of that, the judgment relied by the learned counsel for the O.P.No.2 is not helping the O.P.No.2. 10. In view of above facts, reasons and analysis, to allow the present proceeding to continue further, will amount to abuse of process of law. 11. Accordingly, entire criminal proceeding including the order taking cognizance dated 08.11.2019 in connection with SC/ST Complaint Case No.30/2018, pending in the court of learned Special Judge, Jamtara are quashed. 12. Cr.M.P. No.4217 of 2019 is allowed and disposed of. 13. Pending petition, if any, also stands disposed of accordingly.