Allowed

Mr Girish S Palaskar v. the State of Karnataka

Karnataka HC2 Aug 2024CRL.P/184/2023

Case brief

AI extract

What is this about?

Two accused facing sexual harassment charges under IPC Sections 354A sought quashing of proceedings after their discharge application was rejected. The court found the FIR lodged inordinately late without explanation, after termination, with no eyewitnesses and witness affidavits denying police statements, concluded the complaint was motivated, and quashed proceedings.

What did the court decide?

Proceedings in CC No.27690/2018 including order dated 12.10.2022 and complaint dated 17.5.2018 quashed as against petitioners.

Mr Girish S Palaskar Vs the State of Karnataka — Dowry and Cruelty | Karnataka HC (2024)

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NC: 2024:KHC:30744 CRL.P No. 184 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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CRIMINAL PETITION NO. 184 OF 2023

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BETWEEN:

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MR GIRISH S PALASKAR AGED ABOUT 42 YEARS, RESIDING AT NO.448, MAHAVEER RICH APARTMENT, AGB LAYOUT, HESARAGHATTA MAIN ROAD, BENGALURU-560 090.

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MR VENUGOPAL RAO AGED ABOUT 55 YEARS, RESIDING AT NO.D604, VAISHNAVI NAKSHATRA, YASHWANTHAPURA MAIN ROAD, BENGALURU-560 022.

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…PETITIONERS

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(BY SRI. K KASTURI, SENIOR COUNSEL FOR *SRIBHOOMI YESASWINI K, ADVOCATE)

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Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

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AND:

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THE STATE OF KARNATAKA PADARAYANAPALYA SECOND CROSS PEENYA INDUSTRIAL AREA NEAR JALAHALLI CROSS BENGALURU-560 058. KARNATAKA, REPRESENTED BY ITS STATION HOUSE OFFICER.

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DR MANJULA BHAT 2/C, GROUND FLOOR 5^TH CROSS, 20^TH MAIN J.P. ROAD, 'T' BLOCK GIRINAGAR, BENGALURU-560 085. (AMMENDED AS PER COUR ORDER DATED 23.2.2023)

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…RESPONDENTS

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(BY SRI. M R PATIL, HCGP)

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corrected vide chamber order dated 30.08.2024

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NC: 2024:KHC:30744 CRL.P No. 184 of 2023

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THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO 1.QUASH THE ORDER DATED 12.10.2022 IN C.C.NO.27690/2018 ON THE FILE OF THE 45TH A.C.M.M., AT BENGALURU AT ANNEXURE-A AND DISCHARGE THE PETITIONERS 1 AND 2 CONSEQUENTLY AND ETC.

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THIS PETITION, COMING ON FOR FURTHER DICTATION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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ORAL ORDER

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The petitioners - accused Nos.1 and 2, who are sought to be prosecuted for the offences punishable under Sections 354A(1)(i), 354A(ii) read with Section 34 of IPC, are before this Court.

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The case of the prosecution is that, when the defacto complainant was working as Senior Research Scientist-1 in the department of Safety Pharmacology, the accused, who were her seniors in the team, used to sexually harass when she was alone and they represented on many occasions for sexual favour. The petitioners filed an application under Section 239 of Cr.PC stating that there are no sufficient materials to frame charges, and therefore, discharge them from the case.

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The learned Magistrate after considering the charge sheet material held that there is a prima facie case to proceed against the petitioners, and accordingly, dismissed application for discharge. Taking exception to the same, this petition is filed.

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NC: 2024:KHC:30744 CRL.P No. 184 of 2023

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Sri K Kasturi, learned Senior Counsel for the petitioners submits that the allegation of sexual harassment is the year 2017 and the FIR was lodged on 15.6.2018 without offering any plausible explanation, and was lodged only after the defacto complainant was terminated from employment. He further submits that except the omnibus and general allegation, there is no specific allegation during the period in which the accused herein sexually harassed the defacto complainant. He further submits that the charge sheet has been laid only on the basis of a self serving statement. In the absence of any witness to the alleged incident, the continuation of criminal proceedings will be an abuse of the process of law.

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The learned counsel for the respondent No.2 would

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make the following submissions:

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1. The petitioner had filed Crl. P No.1113/2019 challenging the charge sheet on the same set of grounds urged in this petition, and this Court vide order dated 15.2.2021 dismissed the petition. Therefore, the present petition filed urging the very same grounds is not maintainable.

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1. The provisions of Sexual harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013 are in addition to the provisions contained in the Indian Penal Code, and therefore, lodging of the FIR for the aforesaid offences without invoking Section 9 of the Act, 2013 is permissible.

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1. While deciding a discharge petition, only materials brought on record by the prosecution have to be considered, and the accused has no right to produce any documents at the time of discharge. In support, a reliance is placed on the decision of the Hon’ble Supreme Court in the case of ME Shivalingmurthy –vsCBI (2022) 2 SCC 768.

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1. The reasons assigned by the Trial Court in rejecting the application is just and proper, and inconformity with the provisions of law, and the same does not warrant any interference.

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Considered the submissions of the learned counsel for the parties.

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Perusal of the first information report indicated that, the defacto complainant joined the services in Eurofins Advinus Limited on June, 17, 2015 as Senior Research Scientist. After six months, she had to work with petitioner No.1 ,and had to report to him, and she was the only lady in the team. When she was alone, he tried to touch her body, and groped her on many occasions, and used to create situations that she should be alone in the laboratory, and asked for sexual favour promising that she will get promotion and increments. When she did not accede to the sexual favour, and when the advances became unbearable, she complained to her Supervisor, however, he stated that he cannot take action, since the petitioner No.1 is his senior. After coming to know, he started

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harassing her in work too. In May, 2017, she complained to Senior HR Manager, and requested to transfer out of the present team. Once the petitioner came to know that, they cooked story that, she harassed one Paranth Aman. In August, 2017, Sri Sarabjit asked her to leave the company, with three months salary.

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The complainant had approached the National Commission for Women via its website on 06.03.2018 and via e- mail dated 28.03.2018, and was terminated from her employment on 01.03.2018.

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The statement of the defacto complainant was recorded under Section 164 of Cr.PC before the learned Magistrate. In her statement, she reiterated the allegations made in the first information report.

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The FIR was registered on 15.06.2018, and the statement of one Jyoshva Daniel under Section 161 of Cr.PC was recorded on 3.8.2018, and she stated that the HR Manager had convened a meeting with regard to the allegations of sexual harassment by the petitioner No.1 in the month of May, 2017, and before the Committee, the defacto complainant reiterated the allegations made in the FIR. However, she has not stated that she witnessed the incident.

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Similarly, the statement of Sarabjit was recorded, and the statement made is verbatim to the statement made by Jyoshva Daniel. Similar statements were made by Smt.Niharika,

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Sri Parantaman, Dr.Kamala Kannan, Smt.Surabhi Anand and Dr.Krishnappa, and the statement made by all the charge sheet witnesses are verbatim, and except the statement of the defacto complainant none of them are witnesses to the incident of sexual harassment.

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The employer has also communicated to the police stating that there are no CCTV cameras fitted in the company.

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The defacto complainant joined the company on 17.6.2015, and after six months, she was subjected to sexual harassment by the petitioner No.1. The first of the alleged complaint was made in May, 2017 i.e. after nearly one and half year from the date of petitioner No.1 subjecting her to sexual harassment. The charge sheet does contain any material that the complaint was filed before the Internal Complaint Committee. The de facto complainant was terminated from service on 01.03.2018, and on the same day, she stated that she made a complaint to the National Commission for Women through e-mail, however, the copy of e-mail is not part of the charge sheet.

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The defacto complainant in the first information report does not offer any plausible explanation for the delay in lodging the FIR. No duration can be prescribed for lodging an FIR in cases of sexual offences provided plausible explanation is offered, and the court after examining the explanation, can refuse to interfere with the criminal proceedings, if the delay is satisfactorily explained. In the instant case, the first of the incident of sexual harassment was

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NC: 2024:KHC:30744 CRL.P No. 184 of 2023

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six months after the defacto complainant joined the company on 17.6.2015. The first of the complaint was made with the senior colleague in May, 2017 i.e. after one and half year. The FIR was lodged on 15.06.2018 after she was terminated from service.

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The charge sheet witnesses are not the eye witnesses to the incident of sexual harassment. The statement of each of the charge sheet witnesses are verbatim. Therefore, the FIR lodged after an inordinate delay without offering plausible explanation, in absence of eye witnesses to the incident, and the FIR having been lodged after termination of her services, it is implied that the FIR was lodged with an ulterior motive to wreak vengeance, and the continuation of the criminal proceedings will be an abuse of the process of law.

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On an earlier occasion, the petitioners had approached this Court in Crl.P No.1113/2019 challenging the charge sheet on the ground urged in this petition. This Court vide order dated 15.2.2021 dismissed the petition stating that the complainant had made a specific allegation that the petitioner No.1 taking advantage of the aloneness sought for sexual favour, and also having regard to the statement of the witnesses.

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After dismissal of the petition, the petitioners filed an application for discharge. Therefore, the present petition challenging the dismissal of the application for discharge is maintainable, despite the earlier petition having been dismissed by this Court. The petitioners have annexed the copy of the order

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NC: 2024:KHC:30744 CRL.P No. 184 of 2023

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passed by this Court dismissing the earlier petition. Therefore, the contention of the respondent No.2 that the petitioners have not disclosed the dismissal of the petition is without any substance.

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The case on the file of the XXXI ACMM, Bengaluru in CC No 27690/2018 vide order dated 12.10.2022 is adjourned for framing of the charge.

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The Apex Court in the case of Century Spinning and Manufacturing Co. v. State of Maharashtra AIR 1972 SC 545 has observed that an order of framing of charge must be arrived at upon judicial consideration as to whether or not there is sufficient ground for presuming the commission of the offence by the accused and must not constitute a mechanical exercise of the jurisdiction. It specifically observed that “without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.”

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A 3-Judge Bench of the Hon’ble Supreme Court in the case of State of Karnataka v. L. Muniswamy, AIR 1997 SC 1489 observed that “for the purpose of determining whether there is sufficient ground for proceeding against an accused the court possess a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible.”

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Thus, where there exists on record no prima facie incriminating material for presuming that an accused has committed an offence, no suspicion, much less a stronger one may possibly arise, leading to an order of framing of the charge.

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On the issue of admissibility of witness statements made to the police [Hazari Lal v. State (Delhi Admn.) AIR 1980 SC 873; Audumbar Digamabar Jagdane v. State of Maharashtra 1999 CrLJ 1936 (Bomb-DB)] , the Courts have consistently held that statements recorded under Section 161 of Cr.P.C., 1973 cannot be used as substantive evidence as is statutorily barred under Section 162 of the Code, 1973. It is settled law that statements recorded under Sec 162 of the Code, 1973 have only negative value and cannot be used for corroborating the case of the prosecution or contradicting a defence witness and may be solely for the purpose of contradicting prosecution witnesses.

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In the case of the State of T. Nadu. Tr. Insp. of Police v. Suresh Ranjan (2014) 11 SCC 709, the Apex Court referenced the propositions laid down in the earlier cases of Prafulla Kumar Samal (1979) 3 SCC 4 and Dilawar Balu Kurane (2002) 2 SCC 135 that the Court at the stage of considering an application for discharge under Sections 227 and 239 of the Code, 1973 is required to go into the probative value of the material adduced by the prosecution to consider whether there exists a ground for presuming that an offence has been committed, and thereafter concluded therein that the test for allowing an application for discharge is, whether there is prima facie, a case for proceeding

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against the accused and not to conduct an appraisement of evidence as would be process in a full fledged trial.

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In the case of R. Kalyani v. Janak C. Mehta (2009) 1 SCC 516, the Apex Court had concluded that the Courts must exercise powers under Section 482 of the Code, 1973 to prevent any attempt to subject innocents to persecution and humiliation on the basis of false and wholly untenable complaints.

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In the case of M.E. Shivalingamurthy v. Central Bureau of Investigation (2020) 2 SCC 768, the Hon’ble Supreme Court referred to its earlier decisions in the cases of P. Vijayan v. State of Kerala (2010) 2 SCC 398 : 2010 (1) SCC (Cri) 1488 and State of J&K v. Sudershan Chakkar (1995) 4 SCC 181 and held that while determining a discharge application:

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1. The defence of the Accused is not to be looked into;

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1. The Accused can only rely on the materials which are produced by the prosecution;

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1. The Court can base its ‘grave suspicion’ of the accused having committed the alleged offences only in terms of the materials made available by the prosecution;

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1. The Accused is always at liberty to appeal to the broad probabilities of the case to persuade the Court to discharge him.

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In the case of Deepak Gaba and Ors. v. State of Uttar Pradesh (2023) 3 SCC 423 , courts must be vigilant and stave off criminal proceedings initiated with an ulterior motive of wreaking

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vengeance and to spite the opposite party due to private or personal grudge.

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In the instant case, the de facto complainant / respondent no. 2 was served with a notice of termination on 01.03.2018 on grounds of less than satisfactory performance, as is evidenced in the mail dated 14.02.2018 sent to the Head of Human Resources by the petitioner no. 2 detailing a performance appraisal, collated by the Petitioner no. 2.

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Furthermore, materials on record show that the petitioner no. 2 had stated in the mail addressed to the Head of Human Resource, dated 01.03.2024, in addition to the above mail, that the respondent no. 2 had repeatedly answered to his queries seeking explanation for her less than satisfactory performance that she was taking anti-depressant medication and that she had only recently stopped taking the same.

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The respondent no. 2 was orally informed of her impending termination from her employment by the petitioner no. 2 on 23.02.2018. It is gathered upon perusal of the petitioner no. 2’s mail dated 28.02.2018 to the Head of Human Resource that the respondent no. 2 had approached the petitioner no. 2 on 27.02.2018 stating that she was contemplating of lodging a complaint alleging sexual harassment against the petitioner no. 1 and that she had protested against her outplacement.

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Upon receiving a letter of termination, on 01.03.2018, the respondent no. 2 approached the National Commission for Women, only on 06.03.2018, when in fact she had approached the Petitioner No. 2 on 27.02.2018 complaining against the petitioner no. 1, whilst still in the employ of Eurofins Advinus. Furthermore, all seven witnesses who had purported to have made statements to the police under Section 161 of the Code, 1973 have sworn on affidavits, produced herein, refusing to accept having made any such statements and have also specifically stated therein that the police have not shown them their statements upon reducing them into writing.

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On perusing through the materials on record, I am of the view that the conduct of the respondent No.2 reeks of mala fide, and that the allegations in the complaint dated 17.5.2018, and subsequent FIR dated 15.06.2018, are an afterthought, motivated and wholly untenable.

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32. Accordingly, I order the following -

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ORDER

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i) The petition is allowed.

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ii) The impugned proceedings in CC No.27690/2018 pending on the file of the learned 45^th Additional Chief Metropolitan Magistrate, Bengaluru, insofar as it relates to the petitioners, the order dated 12.10.2022 in CC No.27690/2018 passed by the learned 45^th Additional Chief Metropolitan Magistrate, Bengaluru,

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vide Annexure-A, the complaint dated 17.5.2018 in CC No.27690/2018 on the file of the learned 45h Additional Chief Metropolitan Magistrate, Bengaluru, are hereby quashed.

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Sd/(HEMANT CHANDANGOUDAR) JUDGE

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BKM

Mr Girish S Palaskar v. the State of Karnataka

Case brief

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Mr Girish S Palaskar v. the State of Karnataka

Case brief

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