Rakesh Kumar Mahout vs State Of Chhattisgarh

Heard.

Petitioner has preferred this petition for quashing the FIR and charge-sheet registered in Crime No. 106/2020 at Police Station Chirmiri, District-Koriya, C.G. under Section 509 of the IPC against the petitioner.

Brief facts of the case are that the petitioner is an Advocate by profession and practicing in Civil Court, Chirmiri, District-Koriya since more than 20 years and he is a renowned person in his fraternity. The petitioner suggested his client Janki Nag to lodge FIR against the respondent No. 2, if she commits any crime, and ultimately the FIR has been registered against the respondent No. 2 on the basis of complaint, hence due to revenge, the respondent No. 2 made a false and vague complaint against the petitioner, knowing the fact that he is a practicing Advocate and is in the capacity to suggest his client to settle the differences by compromise with respondent No. 2. When the petitioner came to know that a false complaint has been made against him by the respondent No. 2, he immediately made a complaint to rebut the whole allegation levelled against him, copy of complaint made by the petitioner to rebut the allegation was sent to police station Chirmiri, Superintendent of Police, Collector and other higher authorities. Copy of complaint made by the petitioner is enclosed herewith as Annexure-P/2. The petitioner never met the respondent No. 2, and he does not know her, he suggested his client as per law, but respondent No. 2, satisfy her grievance, has made a false allegation against the petitioner as stated in FIR. Further the offence of 509 of IPC stipulated Word, gesture or act intended to insult the modesty of a woman and the crime with regard to 509 of IPC is not made out against the petitioner. Therefore, the petitioner filed this petition for quashing the FIR registered in Crime No. 106/2020 and further proceeding pending against him.

Learned counsel for the petitioner submits that the petitioner directly or indirectly has nothing to do with the crime or the respondent No. 2, even the petitioner is not known to the respondent No. 2, she made a false and vague allegation against the petitioner. He next submits that the petitioner being an Advocate suggested his client Janki Nag to make a complaint against the respondent No. 2, and on the basis of said complaint, the FIR has been registered against the respondent No. 2 therefore she made a complaint against the petitioner with intention to compel the petitioner to undue influence his client to settle the dispute with the respondent No. 2, Copy of FIR registered against the respondent No. 2 and her relatives in Crime No. 14/2020 at P.S. AJAK, District-Baikunthpur is filed herewith as Annexure-P/3. He lastly submits that the petitioner being an Advocate, acted professionally as per instruction of his client cannot be prosecuted, therefore the impugned FIR and subsequent charge-sheet filed against him and criminal proceedings are liable to be quashed. He has placed his reliance upon the decision of this Court in the matter of Arun Thakur Vs. State of Chhattisgarh and Others passed in CRMP No. 1984/2018 vide order dated 10.05.2019.

Learned State counsel opposes the petition and submits that respondent No. 2 has lodged a written complaint and on the basis of this written complaint, FIR in connection with Crime No. 106/2020 has been registered at police station Chirmiri, District-Koriya for the offence punishable under Section 509 of IPC against the petitioner. After registration of FIR, police investigated the matter and recorded the statements of the respondent No. 2 and other witnesses and after completion of the investigation, police filed charge-sheet against the petitioner before the learned trial Court. He next submits that the judicial interference of this Hon'ble Court at this initial stage is not justified in absence of apparent arbitrariness or illegality. The petitioner in his defence, may put all the material which may be raised before the Court below and contest the case, at this initial stage, the petition is premature. The trial is pending before the competent Court where the petitioner can raise all his objection/protest and it is for the trial Court to decide the matter after taking evidence to give finding about the genuineness of the allegation levelled against the petitioner therefore the petition is liable to be dismissed. He has placed reliance on the judgment of Hon'ble Apex Court in the matter of State of Orissa & Ors. vs. Ujjal Kumar Burdhan reported in 2012 4 SCC 547: 2012 2 SCC(Cri) 506 and in the matter of Jeffrey J. Diermeier & Anr. vs. State of West Bengal & Anr. 2 reported in (2010) 6 SCC 243.

Learned counsel for the respondent No. 2 also opposes the petition and submits that petition is liable to be dismissed.

Heard learned counsel for the parties and perused the material available on record.

Petitioner has filed documents Annexure-P/5 and Annexure-P/6 dated 31.08.2019 which are complaints' made by the respondent No. 2. After investigation, Investigating Officer submits his report on 18.02.2020 and finding of this report is (as per Annexure-P/5) “जुमला जाचं पर आवेदिका द्वारा गिरफ्तारी से बचने के लिए उच्चाधिकारियों को शिकायत देना पाया गया शिकायत प्रमाणित नहीं पाया गया।” that respondent No. 2 has filed a written complaint on 04.09.2019 and she has filed impugned FIR on 20.03.2020 on the same incident dated 27.08.2019. Lipiyantaran has also been filed with charge-sheet which are conversation between Nageshchandra Mahout and Sheru Khan. Respondent No. 2 has stated in her 161 statement as under:-

“तब राकेश महौत बोला कि कम से कम 02 लाख रूपये का इंतजाम कर लो और मेरे साथ हम बिस्तर हो जाओ तब मैं उसे डांट कर अपने घर से भगा दी।”

Section 509 of IPC defines Word, gesture or act intended to insult the modesty of a woman which reads as under :-

Word, gesture or act intended to insult the modesty of a woman.- Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.”

Petitioner has also filed copy of the FIR which was registered against the respondent No. 2 under Section 294, 506, 147, 149 of IPC and 3(1)( घ) of SC/ST (Prevention of Atrocities) Act. In the matter of K. Daniel Vs. T. Hymavathy Amma AIR 1985 Kerala 233 it was observed by the Kerala High Court in para 11 which is as under:-

“11. It is imperative that Judges, counsel, parties and witnesses participating in a judicial proceeding must be able to conduct themselves without any apprehension of being called upon to answer a claim for damages for defamation. They must be able to act uninfluenced by any such fear. Freedom of speech on such occasions has to be totally safeguarded. Hence it is necessary to protect the maker of statements on such occasions. The privilege arises on account of privilege attached to the occasion and not to the individual. It is possible that sometimes counsel or the parties or witnesses may take advantage of the occasion and indulge in false or malicious statement which has the effect of bringing down the reputation of some other person; that would certainly be mischievous. But to say that statement would be privileged only in the absence of malice would put these persons in considerable strain and apprehension on such occasions. Basis of privilege is not absence of malice or the truth of statement or the intention of the maker but public policy. Any restriction on privilege during the occasion would create constraints in the process of administration of justice.”

In the case of Munster v. Lamb (1882) SUR. 11 Q.B.O. 588 it has held in para 11 which is as under:-

“11. any one needs to be free of all fear in the performance of his arduous duty, an advocate is that person and, therefore, unless and until there is a proof of 'express malice on the part of the lawyer, in the discharge of his professional duties, he does not come within the bounds of the offence of defamation. In ancient Rome a class of persons called the juris prudentes came into existence though they were not professional lawyers in their true sense. Notion of law does not include of necessity the extent of a distinct profession of lawyers whether as Judges or as Advocates, but 'there cannot well be a science of law without such profession'. The lawyers are the high priests in pursuit of truth at the altar of justice and there should be no spoke in the wheels of justice by fettering unreasonably the freedom of such lawyers. Fiat justitia mat caelum: Let justice be done, though heavens may fall.”

In the matter of Arun Thakur vs. State of Chhattisgarh & Ors. passed by this Court in Criminal Misc. Petition No. 1984/2018 vide order dated 10.05.2019 this Court has also observed in para 26 which is as under:-

“26. ... The petitioner in his capacity as advocate in discharge of professional duty on the instructions of his client incorporated the said averment in para 7 of the plaint filed in the civil suit. His acts are bona fide and he cannot be fastened with criminal liability. As such, imputation was made in good faith and on the basis of instructions of his client in order to protect her right to property which she is claiming, as right to property is a constitutional right under Article 330A of the Constitution of India and therefore does not constitute the offence of defamation under Section 499 of the IPC punishable under Section 500 of the IPC and falls within the Ninth Exception to Section 499 of the IPC. As such, an advocate who has acted professionally and drafted plaint making averment as per the instruction of his client, cannot be held liable for the offence of defamation under Section 500 of the IPC.”

In the instant case respondent No. 2 filed a complaint against the petitioner on 31.08.2019 for same date of incident dated 27.08.2019 and after investigation it has been found by the Investigating Officer which reads as under (Annexure-P/5) :-

A written complaint on 04.09.2019 on the same incident dated 27.08.2019 has been filed by the respondent No. 2 and it is clear from the impugned FIR that the respondent No. 2 did not know the petitioner, she has stated in her written complaint as under:-

It is clear from the documents that the incident has taken place on 27.08.2019 and the respondent No. 2 has filed two complaints against this incident firstly on 31.08.2019 which was not proven true and then again she has filed a second complaint on 04.09.2019 on the same incident and on the basis of that complaint the impugned FIR has been registered on 20.03.2020. It is very strange that previous complaint has been investigated by Deputy Superintendent of Police, AJAK, Baikunthpur who has not found any facts and circumstances against the petitioner but on the same set of facts and on the same incident the Sub-inspector of Thana-Chirmiri has lodged FIR, and charge-sheet has been filed against the petitioner.

In the matter of Manik Taneja and another v. State of Karnataka and another (2015) 7 SCC 423, it has been held by the Hon'ble Supreme Court as under:-

“12. ... The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. ...”

Looking to the previous complaint, impugned FIR and principles as discussed above laid down by the Hon'ble Supreme Court and this Court, it is observed that the impugned FIR is an outburst of previous FIR registered against the respondent No. 2 by the client of the petitioner, therefore the impugned FIR and subsequent proceedings are nothing but an abuse of the process of law, and as such, the entire proceeding of impugned FIR registered in Crime No. 106/2020 and the entire proceeding of the criminal case against the petitioner pending before the Court below are liable to be and are hereby quashed.

Accordingly, this petition is allowed.