1 Mcrc.2153/17
Gajendra Singh Sengar Vs. State of M.P. another
14/12/17
Shri Amit Lahoti, Advocate for the petitioner.
Shri Shiraz Qureshi, Public Prosecutor for respondent
No.1/State.
Shri A.S.Rathore, Advocate for respondent No.2.
1. Inherent powers of this court u/S. 482 Cr.P.C. are invoked for
assailing the prosecution launched against the petitioner by
respondent No.2-prosecutrix u/S. 354 I.P.C. arising out of an incident
which took place on 10/8/2016 at 3 p.m. which led to lodging of the
FIR, vide P/1, dated 16/8/2016, based upon a written complaint
made by the prosecutrix-respondent No.2.
2. The facts in nutshell are that at the relevant point of time, the
petitioner was working as Telecom District Manager (TDM) Guna
while the complainant-respondent No.2 was working as Junior
Telecom Officer (JTO) in the office of the petitioner. It is alleged that
on 10/8/2016 at about 3 p.m., the petitioner took the prosecutrix to
the C-Dot Section where with an ulterior motive caught hold of her
hands and pressurized her to have sexual relation with him. When
the prosecutrix resisted and cried for help, the petitioner on seeing
two customers, returned to his chamber and while doing so
threatened the prosecutrix with dire consequences if the incident is
disclosed to anyone. The prosecutrix further alleged in the complaint
that on earlier occasions the petitioner had also made sexual
advances towards her. It is the submission of the prosecutrix that
despite making all out efforts her grievance was not attended to by
the police which made her to run from pillar to post and ultimately
with great difficulty she could lodge the impugned FIR on 16/8/2016
against the petitioner alleging offence punishable u/S.354 I.P.C.
3. Learned counsel for the petitioner primarily contends that the
entire case of the prosecution arises out of vengeance and is writ
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Gajendra Singh Sengar Vs. State of M.P. another
large with mala fide. For this it is submitted by the petitioner that at
5-15 p.m., on 10/8/2016 the prosecutrix alongwith her husband Anup
Garg (who happens to be employee working in the same office of the
petitioner) entered into the chamber of the petitioner without seeking
prior permission and misbehaved with the petitioner to the extent of
beating the petitioner with sleepers and assaulting with kick and fist
blows. The petitioner further submits that on this misconduct Shri
Anup Garg (husband of the prosecutrix) was placed under suspension
by order dated 11/8/2016, P/3. The petitioner has also filed the MLC
of the District Hospital, Guna (OPD) disclosing the petitioner to have
sustained a contusion on middle part of the nose, which was opined
to be simple in nature. It is brought on record by the petitioner that
on the basis of the complaint filed by the prosecutrix of sexual
harassment in work place, the Sexual Harassment Committee
comprising of 4 members, Smt. Eni Josef as Chairman, Smt.
Sangeeta Agrawal, Smt. Vimla Dubey, and Shri K.N.Vajpai as
members was asked to inquire into the complaint. The said
Committee gave it’s report on 30/8/2016 vide P/5 finding that the
allegations of sexual harassment made by the prosecutrix are not
established. A bare perusal of the findings of this Committee reveals
that the prosecutrix failed to produce any evidence in support of the
allegations of having seen the petitioner making sexual advances
towards the prosecutrix on or before the incident in question. In this
background it is submitted by the learned counsel for the petitioner
that the complaint lodged by the respondent No.2-complainant is
motivated by mala fide and the present piece of criminal prosecution
deserves to be quashed. In support of his arguments learned counsel
for the petitioner placed reliance on the decisions of the Apex Court
in State of Haryana others Vs. Ch. Bhajan Lal others (AIR
1992 SC 604) Vishaka others Vs. State of Rajasthan
3 Mcrc.2153/17
Gajendra Singh Sengar Vs. State of M.P. another
others (1997) 6 SCC 241, Eicher Tractor Limited others Vs.
Harihar Singh and another (2008) 16 SCC 763, Anjani Kumar
Vs. State of Bihar and another (2008) 5 SCC 248, Mahindra
Mahindra Financial Services Limited another Vs. Rajiv
Dubey (2009) 1 SCC 706 M.N.Ojha others Vs. Alok Kumar
Srivastav and another 2009 (9) SCC 682, Rishipal Singh Vs.
State of Uttar Pradesh another (2014) 7 SCC 215 and
D.P.Gulati Vs. State of Uttar Pradesh others 2015(11) SCC
730.
4. On the other hand, learned counsel for the State and the
prosecutrix have explained the delay in lodging of FIR by submitting
that when the attempt of prosecutrix to lodge the FIR on the very
same incident did not bear any fruit on account of influence exerted
by the petitioner on the police authorites, she met the S.P., and SDO
(P), Guna on 11/8/2016 but to no avail. It is submitted by the
prosecutrix that thereafter she made complaint on 11/8/2016 to the
Women Welfare Committee and also to the C.M. Help Line at Bhopal.
Thereafter she again met S.P. Guna on whose initiative the FIR in
question was lodged bearing Crime No. 443/16. It is submitted by the
respondents that husband of the prosecutrix Anup Garg Junior
Telecom Officer (Tx, Guna) has also been harassed by the petitioner
by placing him under suspension just a day after the incident in
question.
5. Learned counsel for the respondents have thus prayed for
dismissal of the present petition by relying upon the decision of the
Apex Court in the case of Rupan Deol Bajaj (Mrs) another Vs.
Kanwar Pal Singh Gill another reported in (1995) 6 SCC 194
for emphasizing the limitations of the inherent powers of this court
u/S. 482 Cr.P.C. especially in offences against women.
6. Learned counsel for the rival parties are heard.
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Gajendra Singh Sengar Vs. State of M.P. another
7. From bare reading of the allegations contained in the
impugned FIR, the basic ingredients of the offence of assault for
outraging of modesty of the prosecutrix appears to be prima facie
made out as the respondent No.2 -prosecutrix has alleged that the
petitioner asked her to accompany him to the C-Dot Section on the
pretext of gaining some official information but on reaching there he
caught hold of the hands of the prosecutrix and tried to pressurize
her to enter into sexual relation with him. This allegation prima facie
appears to be corroborated by statements of the prosecturix u/S.
161 Cr.P.C. recorded on 17/8/2016 and also three other witnesses
Anup Garg (husband of the prosecutrix), Saurabh Agrawal and
Rajkumar (both eye-witnesses). Thus from the point of view of the
allegations, the offence as alleged appears to be prima facie made
out and therefore the prosecution cannot be quashed on that ground
alone.
8. As regards the ground of malicious prosecution with intent to
wreak vengeance against the petitioner from the above conspectus of
facts it is revealed that if the version of both the sides is treated to
be true then on the very same day, i.e. 10/8/2016 the prosecutrix
alleges that she was sexually harassed by the petitioner at about 3
p.m. whereas the petitioner alleges misbehaviour and assault by the
husband of the prosecutrix at 5-15 p.m. on the same day. If the time
of both the incidents is seen then it is possible that after the incident
of sexual harassment took place at about 3 p.m with the prosecutrix
the said prosecutrix alongwith her husband went to the chamber of
the petitioner and the husband indulged in misbehaviour and assault
in retaliation to the incident of harassment allegedly meted out to his
wife by the petitioner.
9. However, going by the timing of both the incidents it cannot be
inferred that the incident of misbehaviour and assault against the
5 Mcrc.2153/17
Gajendra Singh Sengar Vs. State of M.P. another
petitioner was the genesis of the incident of sexual harassment of the
prosecutrix and therefore the petitioner cannot be permitted to raise
the defence of malice or vengeful prosecution.
10. The only aspect which appears to be favouring the case of the
petitioner is that the inquiry into the same incident which gave rise to
the impugned criminal prosecution was subject matter of inquiry by
the Sexual Harassment Committee which rendered exonerative
findings as the prosecutrix failed to produce any evidence in support
of the allegation that the petitioner was seen subjecting prosecutrix
to sexual harassment on or prior to the incident in question.
10.1 Another aspect which deserves consideration is that despite
having failed to establish her case before the Sexual Harassment
Committee the prosecutrix did not assail the exonerative findings
before the appellate authority in terms of the provisions of Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013, (for brevity the 2013 Act) which raises
necessary inference that the prosecutrix was satisfied with the
exonerative findings.
10.2 The Apex Court in various decisions on the scope of inherent
powers by the High Court has held that the same are to be exercised
sparingly and only when the gamut of attending facts and
circumstances spell out a case of failure of justice without entering
into roving inquiry as to the probabilities, reliablities or genuineness
of the allegations.
10.3 The exonerative findings of the Sexual Harassment Committee
can at best raise inference against the prosecutrix that she was
satisfied with the findings thereby raising rebuttable presumption
against her that the incident in question of sexual harassment may
not have taken place. This court must not forget that the scope and
object of an inquiry conducted by the Sexual Harassment Committee
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Gajendra Singh Sengar Vs. State of M.P. another
is to ascertain whether any misconduct as defined in the relevant
service regulations governing the field of conduct and discipline was
committed by the petitioner or not whereas the criminal prosecution
in question achieves distinct object of finding as to whether the
accused/petitioner has committed any offence under any penal
statute. Misconduct and offence are two different aspects which may
arise out of the same incident but require different set of legal
principles to be applied in distinct set of inquiry/trial for achieving
different objectives. In the case of misconduct, facts and
circumstances are tested on the anvil of preponderance of
probabilities whereas the evidence collected in criminal prosecution is
tested on the anvil of the proof beyond reasonable doubt, which is a
much stricter standard of proof. The object of a disciplinary inquiry
into misconduct is to punish or exonerate as per the provisions of
prevailing Disciplinary Rules whereas in the case of offence the
criminal prosecution by way of investigation followed by trial finds out
whether any offence as defined in the relevant penal statute is
committed or not and to ultimately punish with appropriate
prescribed punishment of imprisonment and/or fine or to acquit.
10.4 In the background of the above said discussion, this court is of
the considered view that looking to the allegations contained in the
FIR and the charge-sheet where the basic ingredients of offence
punishable u/S. 354 I.P.C. appear to be prima facie made out, the
factum of exoneration of the petitioner by the Sexual Harassment
Committee alone cannot compel this court to exercise inherent
powers for truncating the impugned prosecution at this early stage.
11. Thus, the instant case does not impel this court to exercise it’s
inherent powers since doing so may cause injustice to the
prosecution.
12. Accordingly, the petition stands dismissed.
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Gajendra Singh Sengar Vs. State of M.P. another
13. Before parting this court may also observe that any finding
recorded on merits herein shall not prejudice right/defence of any of
the rival parties during enquiry or trial.
(Sheel Nagu)
Judge
(Bu) 14/12/2017
DHANANJAYA BUCHAKE
2017.12.14 17:18:20
+05’30’
