Dismissed

Dr Tushar Kaloniya and Another v. State of Up and Another

Allahabad HC4 Jul 2024A227/3907/2024

Case brief

AI extract

What is this about?

Petitioner sought deletion of Dr. Anita Sharma's name and directions under Article 227 regarding a pending criminal revision on investigation in a sexual assault case. The court deleted Dr. Sharma's name and directed the lower court to decide the revision applying Supreme Court instructions on police investigation.

What did the court decide?

Deletion of Dr. Anita Sharma from petition; direction to decide criminal revision in light of Apex Court judgment on Section 156(3) Cr.P.C. investigation.

Dr Tushar Kaloniya and Another vs State of Up… — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:108712

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Court No. - 87

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Case :- MATTERS UNDER ARTICLE 227 No. - 3907 of 2024

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Petitioner :- Dr Tushar Kaloniya And Another Respondent :- State of U.P. and Another Counsel for Petitioner :- Akshay Raghuvanshi,B.K.Singh Raghuvanshi Counsel for Respondent :- G.A.,Venu Gopal

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Hon'ble Ms. Nand Prabha Shukla,J.

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At the very outset, learned counsel for the petitioner wants to delete the name of petitioner no.2-Dr. Anita Sharma from the array of the parties.

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Let the name of petitioner no.2-Dr. Anita Sharma be deleted during the course of the day.

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Heard learned counsel for the petitioner; learned counsel for opposite party no.2; learned AGA for the State and perused the record.

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The present petition under Article 227 of the Constitution of India has been filed seeking order or direction in the nature to set aside the order dated 31.10.2023 passed by learned Additional Session Judge-III, Gautam Budh Nagar in Criminal Revision No.367 of 2022 (Darshini Javaraiah v. Dr. Tushar Kolaniya and another).

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It has been submitted by learned counsel for the petitioner that initially an application under Section 156(3) Cr.P.C. was moved by opposite party no.2, which was treated as a complaint case by order dated 15.09.2022. Against the said order, the opposite party no.2 preferred a criminal revision which is pending in the Court of District Judge, Gautam Budh Nagar.

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Learned counsel for opposite party no.2 has cited the judgment of the Apex Court in the case of XYZ v. State of Madhya Pradesh and others , Criminal Appeal No.1184 of 2022 , decided on 05.08.2022, wherein paragraph nos.25 to 31 are quoted as follows:

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"25. Especially in cases alleging sexual harassment, sexual assault or any

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similar criminal allegation wherein the victim has possibly already been traumatized, the Courts should not further burden the complainant and should press upon the police to investigate. Due regard must be had to the fact that it is not possible for the complainant to retrieve important evidence regarding her complaint. It may not be possible to arrive at the truth of the matter in the absence of such evidence. The complainant would then be required to prove her case without being able to bring relevant evidence (which is potentially of great probative value) on record, which would be unjust.

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26. In this backdrop, we are clearly of the view that the JMFC ought to have exercised jurisdiction under Section 156(3) of CrPC to direct the police to investigate.

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27. At this stage, the Court is not called upon to decide upon the veracity of the allegations in the complaint, save and except to underscore the importance of an investigation by the police in a matter where the CCTV footage (or other evidence) is not under the possession or control of the appellant, but to be inquired into in the course of an investigation by the police. The discretion which has been conferred upon the Magistrate by Section 156(3) CrPC, must be exercised in a judicious manner.

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28. In the facts of the present case and bearing in mind the position of law which has been laid down by this Court, recourse to the jurisdiction under Section 156(3) CrPC was warranted.

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29. For the above reasons, we are inclined to set aside the impugned judgement of the High Court and to direct that the JMFC Gwalior shall, in terms of the observations contained above, order an investigation by the police under Section 156(3) CrPC. Having regard to all the facts and circumstances, including the need for a fair investigation, we direct that the investigation shall be supervised by a woman officer not below the rank of Superintendent of Police to be nominated by the DIG of the zone concerned. The judgement of the High Court dated 6 January 2022 shall accordingly stand set aside. The directions which have been issued by the JMFC to the effect that the complaint could be treated as a complaint case shall accordingly, to that extent, stand set aside and be substituted in terms of the directions which have been issued above.

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30. Finally, we wish to once again reiterate the importance of courts dealing with complainants of sexual harassment and sexual assault in a sensitive manner. It is important for all courts to remain cognizant of the fact that the legal process tends to be even more onerous for complainants who are potentially dealing with trauma and societal shame due to the unwarranted stigma attached to victims of sexual harassment and assault. At this juncture, especially in cases where the police fails to address the grievance of such complainants, the Courts have an important responsibility. As the Delhi High Court held in Virender v State of NCT of Delhi , courts have to remain alive to 8 2009 SCC OnLine Del 30839 both treating the victim sensitively while also discharging the onerous task of ensuring that the complete truth is brought on record so as to facilitate adjudication and answering the basic question regarding the complicity of the accused in the commission of the offence. In that case, the High Court held that:

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22. It is to be noted that the embarrassment, and reservations of those concerned with the proceedings including the prosecutrix, witnesses, counsel may result in a camouflage of the trauma of the victim's experience. The judge has to be conscious of these factors and rise above any such reservations to ensure that they do not cloud the real facts and the actions which are attributable to the accused persons. The trial courts must be alive to the onerous responsibility which rests on their shoulders and be sensitive in cases involving sexual abuse.

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31. While the Delhi High Court made these observations while dealing with a case of rape, courts must remain alive to their duty to treat victims sensitively in cases alleging all forms of sexual harassment and sexual assault. The Courts must try to ensure that the process of attempting to bring alleged perpetrators to justice is not onerous for the victims. Aggrieved persons should not have to run from pillar to post for the mere registration of a complaint and initiation of investigation especially when a cognizable offence is prima facie made out in their complaint."

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Considering the aforesaid facts and circumstances of the case, it is directed to the Court concerned to decide the Criminal Revision of opposite party no.2 in the light of the judgment of the Apex Court in the case of XYZ v. State of Madhya Pradesh and others , Criminal Appeal No.1184 of 2022.

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The petitioner No.2 shall not be prosecuted in the instant matter.

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Accordingly, the petition is dismissed.

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Order Date :- 4.7.2024 A.N. Mishra

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Digitally signed by :- AMARNATH MISHRA High Court of Judicature at Allahabad

Dr Tushar Kaloniya and Another v. State of Up and Another

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Dr Tushar Kaloniya and Another v. State of Up and Another

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