Mahesh Sharma vs State Of Madhya Pradesh

The applicant has preferred this petition under Section 482 of the Cr.P.C. against order dated 5/08/2019 passed by Second Additional Sessions

Judge, Sonkatch, District-Dewas in Criminal Revision No. 6/2019, whereby order dated 14/03/2019 passed by Judicial Magistrate First Class,

Sonkatch, District-Dewas in RCT No. 32/2019 has been affirmed, wherein the charges have been framed against the applicant for commission of

offence punishable under Sections 354, 354(A)(1) and 323 of the IPC.

The facts giving rise to the present petition are that the at the relevant point of time the applicant was posted as Assistant Account Officer at

Janpad Panchayat, Sonkatch, District-Dewas and the victim was working under him as PDA-Cum-Office Assistant. On 30/11/2018, victim made a

complaint to the police-station-Sonkatch to the effect that today at about 5:15 p.m., she was going to the cabin of the applicant for giving his digital

signature device, when she reached near the gate of the cabin, she heard that the applicant was telling her colleague Ashok Sharma that the victim is

having illicit relationship with one Sanjay Thakur. When the victim asked the applicant that why he is saying like that then, he mishandled and slapped

her and garbed her dupatta with bad intention and forced her, due to which she fell down on the ground. Peon-Mangal Singh and other members of

the staff were present on the place of occurrence and they also witnessed the incident. On the basis of the aforesaid complaint, police registered the

FIR bearing Crime No. 534/2018 for the commission of offence punishable under Sections 323, 354 and 354(A)(1) of the IPC against the applicant.

After completion of investigation, the charge-sheet was filed before the competent court.

The trial Court after examining the material brought on record by the prosecution, framed the charges for commission of offence punishable under

Sections 323, 354 and 354(A)(1) of the IPC against the applicant. Being aggrieved with the order of framing of charge, the applicant has preferred

Criminal Revision No. 06/2019 before the Sessions Court, which was also got dismissed vide order dated 5/08/2019 by affirming the order of the trial

Court. Feeling dissatisfied with the aforesaid orders, the applicant has preferred the present petition before this Court.

Learned counsel for the applicant submitted that there was previous enmity between the applicant and the victim and in the backdrop of the

aforesaid enmity, it does not seems natural that the applicant will assaulted the victim with intend to outraged her modesty. It is also submitted that

only general and omnibus allegations have been made by the victim against the applicant. In the FIR as well in her statement recorded under Section

161 of the Cr.P.C., she alleged that the applicant passes comments on her with intend to sexual harassment, therefore, the trial Court has committed

error in framing the charge for commission of offence under Sections 323, 354 and 354(A)(1) of the IPC against the applicant. It is further submitted

that the victim reported the matter to the department also and an enquiry was conducted by the District Level Local Complaint Committee, Dewas

and the said Committee after examining the compact disk and the statement of the witnesses, submitted its report to Chief Executive Officer, District-

Panchayat Dewas. According to which no sexual exploitation in the work place has been found proved against the victim and the applicant was

exonerated with the allegations made by the victim regarding sexual harassment. Even then, the trial Court has framed the charges against the

applicant under Sections 354 and 354(A)(1) of the IPC. Under these circumstances, learned counsel for the applicant prays for setting aside of the

impugned order. In support of his contention, learned counsel for the applicant has placed reliance upon the judgment of Hon'ble apex Court in the

case of Reshma Bano Vs. State of U.P. & Ors, passed in Criminal Appeal No. 425/2008, vide judgment dated 03/03/2008 in the case of Nagawwa

Vs. Veeranna Shivlingappa Knjalgi & Ors, passed in Criminal Appeal No. 99/1976, vide judgment dated 23/04/1976.

Learned Public Prosecutor as well as learned counsel for the respondent No.2/complainant vehemently opposed the prayer made by the applicant

and submitted that the contentions canvassed by the applicant is in the nature of his defence, which cannot be taken into consideration without

affording opportunity to the victim to present her case before the trial Court. It is also submitted that from the contents of the FIR and the statement of

the victim recorded under Section 161 of the Cr.P.C., prima facie offence under Sections 323, 354 and 354(A)(1) is made out against the applicant. It

is further submitted that the order of framing of charge passed by the Judicial Magistrate First Class, Sonkatch, Dewas has been challenged by the

applicant by preferring Criminal Revision No. 6/2019, which was also got dismissed by the Sessions Court, affirming the order of the trial Court.

Therefore, the second revision petition against the impugned order in the form of petition under Section 482 of the Cr.P.C. is not tenable under the

provision of Section 397(3) of the Cr.P.C. Hence, he prayed for dismissal of the present petition.

Having heard learned counsel for the parties and perused the record.

First, it is necessary to consider the motive and scope of the jurisdiction provided under Section 482 of the Cr.P.C. It is well settled that exercise of

powers under Section 482 of the Cr.P.C is the exception and not the rule. The power of quashing criminal proceedings should be exercised very

sparingly and with circumspection and that too in the rarest of rare cases when the court will not be justifiable in embarking the applicant as enquiry as

to the reliable or genuineness or otherwise allegation made in the FIR or complaint and when the extera-ordinary jurisdiction inserted to be done

conferred or arbitrary jurisdiction on the court Act accordingly, to its whim or caprice.

Hon'ble Apex Court in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors. 1992 Supp (1) SCC 335 h,as elaborately considered the

scope and ambit of section 482 Cr.P.C. Seven categories of cases have been enumerated where power can be exercised under Section 482 of 'the

Code'. Para 102 thus reads;

“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 extra-ordinary power under Article 226 or the inherent

powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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:

(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;

(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable

offence, justifying an investi- gation 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;

(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;

(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 officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(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;

(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;

(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 grudgeâ€​

In the case of Suryalakshmi Cotton Mills Ltd. Vs. Rajvir Industries Ltd. (2008) 13 SCC 67, 8Hon'ble Apex Court has been made following

observations explaining the parameters of jurisdiction of the Hihg Court in exercising its jurisdiction under Section 482 of the Code of Criminal

Procedure.

“22 Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said

jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean

that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether

continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing

mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be

determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal namely to force the accused to pay the

amount due to the complainant immediately. The Courts on the one hand should not encourage such a practice; but, on the other, cannot

also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The Courts cannot also lose sight of the fact

that in certain matters, both civil proceedings and criminal proceedings would be maintainable.

In the context of law laid down by the Hon'ble Apex Court, it is apparent that for quashing the proceedings, meticulous analysis of factum of

taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If

the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the

same in exercise of the inherent powers.

On the appreciation of the evidence, in the context of aforesaid legal position clearly disclosed that on 30/11/2018, there was a quarrel between the

applicant and the victim in their work place. According to the allegation made by the victim the applicant slapped her and grabbed her dupatta with bad

intention. The matter was reported to the CEO, District Panchayat, Dewas and an house enquiry was ordered with respect to the allegation made by

the victim regarding sexual harassment and on the basis of CD (video recording) done by the witnesses, the committee was of the view that it does

not reflect that ever the victim was sexual exploited by the applicant. Apart from this the alleged incident was also taken place in the office premises,

where so many persons were present, therefore, it is not possible for any person to tried to outrage modesty of any lady in the presence of the crowd,

thus, the allegation made against the applicant appears to be false and exaggerate. However, no certificate has been issued under Section 65(B) of the

Indian Evidence Act regarding the said videograph, which was considered by the committee, hence, the findings given by the said Committee is based

on supposition. Therefore, the findings of the Visakha Committee cannot be taken into consideration, while deciding any criminal case, in which the

trial will be done by the Court regarding the allegation and the aforesaid report can be used by the applicant in his defence in the said trial. From the

perusal of the record it appears, that the trial has already initiated against the applicant and the victim has been examined before the trial Court and

now the case is listed for recording the statements of other prosecution witnesses. Hence, at this stage it will not be appropriate to interfere in the

order of framing of charge. Suffice it to say, at the stage of framing of charge, an elaborate enquiry into truthfulness of the case cannot be done. In

this context, in the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) reported in 2009 (16) SCC 60, 5the Supreme Court has held

under:

“25. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view

to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged

offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as

gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground

for “presuming†that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to

lead to a conviction. (See Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76).â€​

So far as the judgments relied upon by the learned counsel for the applicant are concerned, they are distinguishable on the facts, thus, they are not

applicable in the facts and circumstances of the present case.

In the present case, the applicant preferred revision application under Section 397 of the Cr.P.C. before the Sessions Judge against order dated

14/03/2019 passed by Judicial Magistrate First Class, Sonkatch, wherein charges have been framed against the applicant for commission of offence

punishable under Section 354 and 354(A)(1) of the IPC and the same was dismissed by the Second Additional Sessions Judge, Sonkatch, District-

Dewas vide impugned order, thus, this is second revision application in the form of petition under Section 482 of the Cr.P.C., after the dismissal of first

revision petition, which is specifically barred under Sub-section 3 of Section 397 of the Cr.P.C., therefore, it is also not maintainable. Reference to

some of the precedents in this regard would be in the fitness of things. In the case of Dharampal v. Smt. Rameshri, 1993 (1) RCR (Crl.) 696 : (1993)

1 SCC 435 : AIR 1993 SC 1361, the Apex Court held as under:â€

“……The Sessions Judge had dismissed the said application on 14th May, 1979. Section 397(3) bars a second revision application by

the same party. It is now well settled that the inherent powers under S. 482 of the Code cannot be utilised for exercising powers which are

expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of Ist respondent.

On this short ground itself, the impugned order of the High Court can be set aside.â€​

Similarly, in the decision rendered in the case of Deepti @ Arati Rai v. Akhil Rai, Judgement Today 1995 (7) Supreme Court 175, the Supreme

Court held that once first revision petition has been dismissed, the second revision petition would not be maintainable and further that inherent powers

cannot be ordinarily utilised when the second revision is expressly barred. In the case of Krishnan v. Krishnaveni, 1995 (3) RCR (Crl.) 638 : (1997) 4

SCC 241 : AIR 1997 SC 987 ,similar question had come up for hearing. It was held that inherent powers could only be utilised if there is failure of

justice. In those cases, the High Court may interfere but reiterated that second revision is not maintainable after the dismissal of the first revision

petition.

Consequently, the petition fails and is accordingly dismissed being devoid of any merits.