Allowed

Vinod Kumar v. State of Chhattisgarh

Chhattisgarh HC3 Sept 2024WPCR/104/2024

Case brief

AI extract

What is this about?

The High Court quashed a First Information Report registered against a petitioner, an Assistant Commandant, alleging sexual harassment. Finding the allegations improbable and unsupported by evidence, the Court allowed the writ petition and ordered the quashing of the criminal proceedings.

What did the court decide?

The impugned FIR registered in Crime No.150/2023 at Mahita Thana, Raipur is hereby quashed.

Vinod Kumar Vs State of Chhattisgarh — Quashing and FIR | Chhattisgarh HC (2024)

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2024:CGHC:34309-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPCR No. 104 of 2024

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Vinod Kumar S/o Nuneshwar Paswan, Aged About 38 Years R/o Assistant Commandant Group Circlekeripubal Arang, District- Raipur Chhattisgarh.

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... Petitioner

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versus

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1 - State Of Chhattisgarh Through- Superintendent Of Police, Office Of Superintendent Of Police Raipur, Chhattisgarh.

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2 - State Of Chhattisgarh Through- The Station House Officer, Police Station Mahila Thana, Raipur, District- Raipur. 3 - X Nil

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... Respondents

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For Petitioner : Mr. Sameer Oraon, Advocate For Respondents : Mr. Sangharsh Pandey, G.A. For Respondent : Mr. Virendra Verma, Advocate No.3

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Hon'ble Shri Ramesh Sinha, Chief Justice

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Hon'ble Shri Bibhu Datta Guru , Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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04.09.2024

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1. Heard Mr. Sameer Oraon, learned counsel for the petitioner. Also heard Mr. Sangharsh Pandey, learned Government Advocate appearing for respondents No.1 and 2 / State and Mr. Virendra Verma, learned counsel, appearing for respondent No.3.

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2. The present petition has been filed by the petitioner with the

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following prayers:

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“a. A writ and / or an order in the nature of appropriate writ do issue directing call for the relevant records for its kind perusal.

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b. An order in the nature of appropriate do issue quashing the impugn FIR date 22.12.2023 (Annexure P-1).It is therefore, prayed that this Hon'ble Court may be pleased to exercise its extraordinary jurisdiction under Article 226 of Constitution of India. And in exercise thereof admit the petition and after hearing the parties in the matter, be pleased to quash the First Information Report dated 22/12/2023 having Crime no. 150/23 registered at Mahila Thana, Raipur (Annexure P-1) on such terms as this Hon'ble Court may deem fit in the facts and circumstances of the case

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c. Any other relief which this Hon'ble Court may deem fit in the facts & circumstances of case.

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d. Cost of the petition may also be awarded”

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3. Brief facts necessary for disposal of this case are that the petitioner is holding the post of assistant commandant and is post in Manipur. Present is the case where a complaint dated 11.10.23 was filed against the petitioner to sexual harassment committee, in which notice was issued to the petitioner and reply is filed, during the pendency of the complaint made to the committee petitioner was transferred on 01.12.2023. In the said proceeding statement of complainant was recorded and no other evidence was submitted by the complainant and contradicting statement was recorded by the complainant respondent No. 3 which is against the allegation made

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in FIR. Thereafter with mala fide intention realizing that she is unable to make any case in complaint made to committee, by making certain improvement in FIR lodged the first information report against petitioner. From perusal of the FIR allegation leveled against the petitioner is that on 1.6.2023, petitioner made a WhatsApp call to complainant and asked her to meet in Raipur and offered her shopping. Then between 5.6.2023 to 14.06.23 when summer vacation camp was conducted in CRPF camp for which petitioner was appointed as presiding ofÏcer, petitioner invited her to his house. Then on another incidence on 20.8.2023 in petitioners' ofÏce, it is alleged that petitioner held her hand and tried to kiss her. Thereafter victim complaints about the harassment to higher ofÏcer on 19.9.2023, on this complaint furiously petitioner came to the house of victim and threaten and assaulted her. After dealing with the FIR etc. in preceding paragraph, now the petitioner wishes to demonstrate irregularity, illegality and further states about abuse of process of Court and abuse of process of law. That after lodging of the first information report no investigation had been proceeded. The statement of victim had not been recorded neither statement of any witness was recorded by the investigating ofÏcer. The complainant had not given any evidence regarding allegation made against petitioner.

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4. Learned counsel for the petitioner submits that the respondent authority without considering the fact that the petitioner is member of armed force was acting or purporting to act in discharge of ofÏcial duties for which First information Report was lodged without

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applying its mind. So far as the member of armed forces are concerned, the cognizance of any offence, by any court, is barred by Section 197 of Cr.P.C unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the ofÏcial duty. The mandatory character of the protection afforded to a member of armed force is brought out by the expression no court shall take cognizance of such offence except with the previous sanction. Respondent when realized that she is unable to make any case against the petitioner in department, then cleverly with ulterior motive made certain improvement while lodging FIR and got the FIR registered against petitioner. The complainant had tried to improvise the story which was not stated before the committee. This raises serious doubt about the genuinity of the prosecution case in respect of harassment. Thus the petitioner is entitled to get the benefit of doubt. Later, invoking its power under Article 226 of the Constitution of India, can quash a Fir if the same is found to be an abuse of process of law and the allegation are manifestly frivolous or vexatious or instituted with ulterior motive for wreaking vengeance. Also, CRPF falls under any other armed force which is mentioned in Article 311 and is provided protection under Constitution of India. Cognizance cannot be taken against member of Central Reserve Police Force who falls under the meaning of army ofÏcer under rule 8 of Central reserve Police Force Rule, as it is also laid down by Hon'ble Apex Court in P.J.Shetty v. Union of India . He relies upon the judgment of the Supreme Court in the matters of Manoj Kumar

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Sharma and others v. State of Chhattisgarh and others¹ and

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State of Haryana and others v. Bhajan Lal and others² .

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5. On the other hand, learned counsel appearing for respondent No.1 and 2 / State submits that from perusal of case diary the petitioner who is superior ofÏcer had committed heinous crime with the subordinate staff with intention to outrage her modesty, threatening her alongwith her entire family, therefore the action of the petitioner is very serious and cognizable offence, therefore the police has rightly registered the FIR. Further, as per contention of the complainant in her written complaint, discloses the commission of cognizable offence, therefore, the respondents authority registered F.I.R. in light of the judgment and direction passed by the Hon'ble Supreme Court in the matter of " Lalita Kumari Vs. State of Uttar Pradesh ".

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6. Learned counsel appearing for respondent No.3 / complainant submits that the petitioner is making vague, baseless, false allegations as a counter blast as his conduct and commission of offence has been registered as first information report and investigation is going on, therefore, the entire contention is denied as it is vague, false and baseless and made as a counter blast. The written report, application of the respondent No. 3 to the DIG, her statement before inquiry committee, first information report and statement under Section 164 of Code of Criminal Procedure duly supported by the MLC dated 24.12.2023 discloses the commission of cognizable offence and the FIR has rightly been registered in the

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1 (2016) 9 SCC 1

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2 1992 Supp (1) SCC 335

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light of the judgment and direction passed by the Hon'ble Supreme Court in the matter of Lalita Kumari Vs. State of Uttar Pradesh . It is further respectfully submitted by the respondent No. 3 that the petitioner is superior ofÏcer of the respondent No. 3 who has committed heinous crime with his sub-ordinate staff in order to outrage of her modesty, threatening her to cause death, therefore, in the light of judgment passed by the Hon'ble Supre Court in case Medha Kotwal Lele and others Vs. Union of India and others, the investigation must be completed by the Mahila Thana, Raipur and after completion of the entire investigation, final report may be submitted before the concerned Court.

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7. We have heard learned counsel for the parties and perused the documents appended with petition.

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8. The Supreme Court in the mater of Bhajan Lal (supra) laid down the principles of law relating to the exercise of extraordinary power under Article 226 of the Constitution of India to quash the first information report and it has been held that such power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. In paragraph 102 of the report, their Lordships laid down the broad principles where such power under Article 226 of the Constitution/Section 482 of the CrPC should be exercised, which are as under: -

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“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 or the inherent powers under Section 482 of the

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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 any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufÏciently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(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 entirety do not prima facie constitute any offence or make out a case against the accused.

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(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police ofÏcers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police ofÏcer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(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 sufÏcient ground for proceeding against the accused.

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(6)Where there is an express legal bar

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engrafted in any of the provisions of the Code or the concerned Act (under which a 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 efÏcacious redress for the grievance of the aggrieved party.

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(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 on the accused and with a view to spite him due to private and personal grudge.

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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 extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

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9. The principle of law laid down in Bhajan Lal’s case (supra) has been followed recently by the Supreme Court in the matters of Google India Private Limited v. Visaka Industries 3, Ahmad Ali Quraishi and another v. State of Uttar Pradesh and another 4 and Dr Dhruvaram Murlidhar Sonar v. State of Maharashtra and others 5. The Supreme Court in Google India Private Limited (supra), explained the scope of dictum of Bhajan Lal’s case (supra) that the power of quashing a criminal proceeding be exercised very sparingly and with circumspection and “that too in the rarest of rare cases” as indicated in paragraph 103 therein of

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3 (2020) 4 SCC 162

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4 (2020) 13 SCC 435

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5 (2019) 18 SCC 191

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the report.

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10. The The Supreme Court in the matter of Manoj Kumar Sharma (supra) held as under:-

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“35. While discussing the scope and ambit of Section 482 of the Code, a similar view has been taken by a Division Bench of this Court in Rajiv Thapar and others vs. Madan Kal Kapoor (2013) 3 SCC 330 wherein it was held as under:-

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“29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would

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rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufÏcient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

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Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:

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30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?

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30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufÏcient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

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30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

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30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

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30.5. If the answer to all the steps is in the afÏrmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”

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11. The Supreme Court in the matter of Neharika Infrastructure Pvt.Ltd. v. State of Maharashtra and others reported in 2021

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SCC OnLine SC 315 has observed that the power of quashing should be exercised sparingly with circumspection in the rarest of rare cases. While examining an F.I.R./complaint, quashing of which is sought, the Court cannot inquire about the reliability, genuineness, or otherwise of the allegations made in the F.I.R./complaint. The power under Section 482 Cr.P.C. (Now Section 528 of the BNSS) is very wide, but conferment of wide power requires the Court to be cautious. The Supreme Court has emphasized that though the Court has the power to quash the F.I.R. in suitable cases, the Court, when it exercises power under Section 482 Cr.P.C. (Now Section 528 of the BNSS), only has to consider whether or not the allegations of F.I.R. disclose the commission of a cognizable offence and is not required to consider the case on merit.

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12. From perusal of the records, it transpires that the the petitioner is holding the post of Assistant Commandant, who is superior ofÏcer of the respondent No.3 / complainant, who was constable in CRPF and the FIR is inherently improbable and the evidence collected in support of the same do not disclose the commission of any offence and does make out a case against the petitioner herein. In the case in hand, malicious prosecution was instituted by the respondent No.3. There was no accusation against the petitioner before filing of the FIR. The allegations are vague and do not warrant continuation of criminal proceedings against the petitioner.

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13. For the foregoing discussion, the impugned FIR dated 22.12.2023

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registered in Crime No.150/2023 at Mahita Thana, Raipur for offence under Sections 354, 354A, 458, 294 and 323 qua the petitioner is hereby quashed.

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14. The WPCR is allowed to the extent indicated hereinabove.

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Sd/- Sd/-

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(Bibhu Datta Guru) (Ramesh Sinha ) Judge Chief Justice