Allowed

Arun Kumar Dubey v. The State Of Jharkhand And Anr.

Jharkhand HC25 Apr 2022Cr.M.P./2578/2016

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings instituted against two B.C.C.L officers alleging sexual harassment and intimidation. Relying on departmental enquiry reports that exonerated the petitioners, the court held the prosecution was mala fide and instituted with an ulterior motive under Section 482 Cr.P.C.

What did the court decide?

The entire criminal proceeding arising out of C.P.Case No.1338 of 2014, including the order dated 10.9.2014, pending in the court of Judicial Magistrate 1st Class, Dhanbad are quashed.

Arun Kumar Dubey Vs The State Of Jharkhand And… — Criminal Trial and Appeal | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND, RANCHI

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Cr.M.P. No. 2578 of 2016

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Arun Kumar Dubey, son of late Anirudha Dubey, resident of Qr. No.31, Sector-10, Koylanagar, P.O.Jagjiwan Nagar, P.S. Saraidhela, District Dhanbad (Jharkhand) ….. Petitioner

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-- Versus --

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1.The State of Jharkhand

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2.Smt. Prabha Kumari, wife of Chatradhari Nonia, Personal Assistant, Mines Rescue Station, Bastacola, Bharat Coking Coal Limited, PO Dhansar, P.S. Jharia, District Dhanbad(Jharkhand) …... Opposite Parties

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With

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Cr.M.P. No. 2249 of 2016

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Dr. Harendra Kishore, son of late L.D.Sharma, resident of Koyla Bhawan, P.O.Koyla Bhawan, P.S.Saraidhela, District Dhanbad (Jharkhand)

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….. Petitioner

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-- Versus --

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1.The State of Jharkhand

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2.Smt. Prabha Kumari, wife of Chhaturdhasi Nonia, Personal Assistant, Mines Rescue Station, Bastacola, Bharat Coking Coal Limited, PO Dhansar, P.S. Jharia, District Dhanbad(Jharkhand) …... Opposite Parties

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With

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Indrajit Sinha, Advocate For the O.P.No.2 :- Mr. Lukesh Kumar, Advocate

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8 /25.04.2022 Heard Mr. Indrajit Sinha, the learned counsel appearing for the petitioners and Mr. Lukesh Kumar, the learned counsel appearing on behalf of O.P.No.2.

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In both the cases common complaint are under challenge wherein allegations are made against the petitioners.

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These petitions have been filed for quashing the judgment dated 09.09.2016 passed in Cr.Revision No.281 of 2014 in Cr.M.P. No. 2578 of 2016 and Cr.Revision No.234 of 2014 in Cr.M.P. No. 2249 of 2016 by learned Additional Sessions Judge-V, Dhanbad whereby the criminal revision application preferred by the petitioners challenging the order taking cognizance dated 10.09.2014 has been dismissed and also for quashing the entire criminal proceeding arising out of C.P.Case No.1338

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of 2014, including the order dated 10.9.2014, pending in the court of Judicial Magistrate 1^st Class, Dhanbad.

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Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petitioners submits that petitioner in Cr.M.P.No.2249 of 2016 was H.O.D (Legal), B.C.C.L and petitioner in Cr.M.P.No. 2578 of 2016 was Manager (Personnel and Administration), B.C.C.L and in both the petitions the petitioners have prayed for quashing the order dated 09.09.2016 passed in Cr. Revision No.281 of 2014 and Cr.Revision No.234 of 2014 passed by the Additional Sessions Judge-V, Dhanbad whereby he has dismissed the criminal revision application and affirmed the order dated 10.09.2014 passed by learned Judicial Magistrate 1^st Class, Dhanbad whereby he has taken cognizance against the petitioners.

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O.P.no.2 has filed the complaint case before the learned Chief

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Judicial Magistrate, Dhanbad alleging therein that:

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i) The complainant is presently working as Personal Assistant at Bastacola Area No.9, Dhanbad and has been rendering her services with honesty and dignity. But the accused no.1 who is presently posted as Personal Manger, HOD (Legal), BCCL at Koyla Bhawan and previously i.e. in the year 2004 was in Kusunda Area 06, has been causing mental, financial and physical harassment since year, 2004. On protest he being a high officer is transferring the complainant here and there. On having asked as to why this is being done with her, accused no.1 has clearly stated that if she does not listen to his sayings, this will happen and till now you would have assessed my approach;

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ii) Upon getting aware of such activities of accused no.1, accused nos. 2 and 3 used to cause financial and physical assault on the complainant. Accused nos.2 and 3 have also threatened the compliant that if she does not listen to their sayings, she would be transferred to such place where people will rip and tear her to the extent that she would not be in a position to do service. Accused no.2 (petitioner herein) always comes to the complainant and hurts dirty words and exerts pressure for making her

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succumb to his sayings and he has even asked for money on many occasions. Two years age, he had taken a sum of Rs.30,000/- and presently again making a demand of Rs.50,000/-. For not paying the amount, he is getting her insulted through Devashish Chatterjee who is a clerk in the same office and accused no4. In C.P.Case No.1338 of 2014. Accused no.3 also in connivance with accused no.2 is provoking her to do wrong things.

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iii) Due to such acts of the accused persons the complainant has become mentally harassed and feels injured. In this regard, the complainant has been informing through written application to the high ranked officials, but except assurance no relief has been extended. Accused no.1 has now started saying that he has become a high officer in the BCCL and no one can do anything to him. You are a tribal lady and still there is time you do in the manner I say, otherwise along with you the services of your husband would also be terminated and your life would be made to hell.

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iv) Accused no.3 says that the complainant and her husband both are working in BCCL, either you surrender yourself to us or to give money and out of fear the complainant has paid lacs of rupees to those persons and still is being caused to be victim of fear. Now, they have started spreading it in the entire organization that the complainant has become mentally ill and nobody should pay heed to her sayings and her colleagues are also being tried to be incited.

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v) On the date of incident, the complainant was returning to her quarter after meeting with her relatives, all four accused by parking their car in a deserted place while abusing the complainant said her that she has now changed and instead of making them happy is writing against them and accused nos.1, 2 and 3 pulled the complainant and made her to sit in the car. Act that time, two ladies protested. The accused persons started ill treating her and on attempt of raising alarm, they pressed her mouth and slapped her saying that if she shouts, she would be thrown out from the vehicle, she will die there itself and asked her if they call her over phone, she should come and thereafter they left her at the deserted place.

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vi) The complainant gave information of the incident on

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the next day to Jharia Police Station, but seeing no action being taken, filing the case in the Court.

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vii) The complainant asserts that the accused persons by taking advantage of their high approach have been causing physical and financial exploitation due to which the complainant has become broken and feels fear in going to the office.

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viii) The complainant is a lady of backward class and those accused are of higher caste. Therefore she is being ill treated.

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ix) The accused have caused such exploitation and torture on the complainant and she always remains ill and has to remain in continuous treatment of doctors.

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x) The complainant is a married lady and wish to lead peaceful life with her children and husband, but the accused persons are not allowing her to do so. Due to her employment, the complainant has been tolerating exploitation since these many years. Sometimes, they even are threatening to kill the complainant and her family.

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Mr. Indrajit Sinha, the learned counsel appearing for the petitioners submits that pursuant to order dated 10.09.2014 was not sustainable under the law and that is why the petitioners preferred criminal revision being Cr.Rev.No.234/2014 which is subject matter in Cr.M.P.No.2249 of 2016 and Cr.Rev.No.281/2014 which is subject matter in Cr.M.P.No.2578 of 2016 and both the petitions have been dismissed by order dated 09.09.2016. He submits that learned Sessions Judge has dismissed the petition which is not in accordance with law. He further submits that the petitioner namely, Dr. Harendra Kishore was looking after the industrial relations and legal matters of M/s B.C.C.L. He submits that the petitioner namely, Arun Kumar Dubey was also working as Personnel Manager (Administration). He submits that O.P.No.2 is in the habit of filing one case by another and she has filed total 12 complaint cases against the officers of M/s B.C.C.L. He further submits that earlier complainant O.P.No.2 has filed a complaint in the year 2009 and on the same day the matter was referred to Standing Committee constituted in

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terms of the law laid down by the Hon’ble Supreme Court in the case of Vishaka Vs. State of Rajasthan. He submits the internal mechanism of such allegations with regard to sexual harassment at work place was involved in B.C.C.L and accordingly six men committee was constituted and the committee after conducting the enquiry submitted a report on 16.4.2010 wherein opinion has been given that as the complaint of Prabha Kumari against Dr.Harendra Kishore of sexual harassment at work place cannot be established beyond doubts in absence of corroborative evidence and that enquiry report is annexed in the petition by filing supplementary affidavit. He further submits that in the year 2014 she has filed the present case in 2014 alleging the same allegation wherein again standing committee was formed on 08.5.2014 in second complaint. He further submits that the petitioner Dr. Harendra Kishore was sent for medical examination by Dr. Ashok Kumar on 22.4.2014. The wife of the petitioner was also accompanying him to Kolkata on 2.6.2014. The petitioner was suffering from hemorrhoids . The petitioner was on leave from 6.6.2014 to 7.6.2014 wherein the complaint was filed on 12.6.2014. He submits that on the alleged date of 02.6.2014 the petitioner was present in Kolkata and he was falsely implicated in the case. He further submits that another committee was formed in the light of ‘Visaka’ case(supra) by the B.C.C.L and the observation of this Court in W.P.(S) No.3544/ 2014 dated 04.8.2014 another enquiry committee was constituted to examine the allegations made with regard to the present case and in the present case also the enquiry committee submitted its report that no charge was found proved against the petitioners. He further submits that the O.P.No.2 is in habit of implicating the officers of B.C.C.L on false cases and she has filed 12 complaints against the officers. On these grounds he submits that the case is mala fide and the petitioners have been falsely implicated. He submits that it is well settled

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that if in a departmental proceeding with regard to the same allegations the employee is exonerated, the criminal case will not go. To buttress his argument, he relied in the case of ‘Ashoo Surendranath Tewari v. CBI’, (2020) 9 SCC 636 and relied on paragraph no.12 of the said judgment which is quoted hereinbelow:

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“ 12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows: (Radheshyam Kejriwal case, SCC p. 598)

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“38. The ratio which can be culled out from these decisions can broadly be stated as follows:

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(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

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(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

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(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

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(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

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(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

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(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

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(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.”

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He further submits that revisional court has not appreciated the case in its right perspective. On the point of power of the High Court under section 482 Cr.P.C he relied in the case of “Vineet Kumar And

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Another v. State of Uttar Pradesh and Another”, (2017) 13 SCC 369. Paragraph no.41 of the said judgment is quoted hereinbelow:

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“ 41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a

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prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal³ . Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal, which is to the following effect: (SCC p. 379, para 102)

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“102. (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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Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of State of Haryana v. Bhajan Lal, but did not advert to the relevant facts of the present case, materials on which final report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings.”

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He submits that the first allegation was with regard to the year

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2004 whereas the complaint case filed in the year 2014 and on the point of malicious prosecution 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:

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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

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motive for wreaking vengeance on the appellants.

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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.

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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.

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On these grounds, he submits that there is sufficient materials to suggest that the case is malafidely instituted against the petitioners and this Court is having powers under section 482 Cr.P.C to quash the proceeding so far the petitioners are concerned.

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Per contra, Mr. Lukesh Kumar, the learned counsel for the O.P.no.2 submits that there are allegations against the petitioners of sexual harassment. The court has dismissed the case of the petitioner and this aspect can be considered in the trial only and this Court at this stage may not exercise its power under section 482 Cr.P.C.

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By way of referring page no.47 of the counter affidavit which is a bond letter wherein it has been disclosed by the petitioners that they will not cast any aspersions, he submits that in view of bond paper it is apparent that the petitioners have procured false evidence. He submits

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that the petitioners have lodged two cases against the O.P.No.2 in which final form submitted (at page 57) wherein it has been disclosed that the petitioner Dr.Harendra Kishore has provided money to one Neha Kumari to file false case against the O.P.no.2. He further submits that Neha Kumari has withdrawn the case filed by her. On these grounds he submits that there is allegation against the petitioners and these petitions are fit to be dismissed.

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In the light of the above submission of the learned counsel for the parties, the Court has gone through the materials on record. It is an admitted fact that the O.P.no.2 has filed earlier case in the year 2004 which was subject matter in view of the “Vishaka”case(supra) before the six men committee and the committee after much deliberation after considering the evidence has submitted report which is brought on record wherein the petitioners have been acquitted. Subsequently the O.P.No.2 has filed this complaint petition against the petitioners. Second committee formed in the light of “Vishaka” case by the management of BCCL in which report was submitted on 16.05.2016 which has been brought on record by way of filing supplementary affidavit and the committee again provided the report to the effect that the charges against the petitioners have not been proved. In para 26 of the petition, the complaint made by the O.P.no.2 has been disclosed whereby it transpires that 12 cases have been filed against the employee of the BCCL by the O.P.no.2 which suggest that O.P.No.2 by way of malafide intention implicating the employees of respondent BCCL by way of filing the false case. In two enquiry committee report the petitioners have been exonerated on merit and they have found to be innocent in the enquiry committee report. Criminal prosecution on the same set of facts and circumstances cannot be allowed to go as held in the case of ‘Ashoo Surendranath Tewari v. CBI’(supra). So far the submission of Mr. Lukesh

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Kumar, the learned counsel for the O.P.no.2 with regard to power under section 482 Cr.P.C is concerned, it is not in dispute, it is well settled that when the Court comes to the conclusion that there are allegations and there is no malafide involved the Court is restraint to the quash the order under section 482 Cr.P.C. However, at the same time if the Court comes to the conclusion that the proceeding is malafide the court is required to interfere under section 482 Cr.P.C. The guidelines of the Hon’ble Supreme Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 may be referred. The case of the petitioner is coming under the category 1&7 of para no.102 of the said judgment, which are quoted hereinbelow:

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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 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 sufficiently 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 officers 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

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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.

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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 sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar 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 efficacious 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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In case in hand in view of above facts in two enquiry reported in which the petitioners have been exonerated, there is no hesitation to the Court to come to the conclusion that the proceeding is filed with malafide and it has been instituted malafidely.

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Accordingly, the entire criminal proceeding arising out of C.P.Case No.1338 of 2014, including the order dated 10.9.2014, pending in the court of Judicial Magistrate 1^st Class, Dhanbad are hereby quashed.

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Cr.M.P.No.2578 of 2016 and Cr.M.P.No.2249 of 2016 stand allowed and disposed of.

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I.A., if any, stand disposed of.

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( Sanjay Kumar Dwivedi, J.)

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SI/,

Arun Kumar Dubey v. The State Of Jharkhand And Anr.

Case brief

What is this about?

What did the court decide?

Arun Kumar Dubey v. The State Of Jharkhand And Anr.

Case brief

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What did the court decide?

What the court decided

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