Subhash Chandra Gupta vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

A very peculiar situation, which has arisen for consideration before this Court in the present criminal revision, it is where this Court is carving out an exception for exercising its powers, as granted to it under Section 401 of Cr.P.C. to scrutinize the propriety of an order dated 3rd September 2013, which otherwise for the reason which is to be assigned in the present judgement is not put to challenge by the revisionist in the present revision, which otherwise implicitly it amounts to a challenge being given to the order of framing of a charge, because the challenge given in the present revision is to the order dated 2nd September 2013, by virtue of which the application for discharge under Section 227 Cr.P.C., as preferred by the revisionist was rejected on the pretext that the charge has already been framed by the Court of Special Judge/SC/ST Act Dehradun in S.S.T No. 4 of 2013, State v. Satish Chandra Gupta. Consequently, in pursuance to the impugned order under challenge in the revision dated 2nd September 2013, the Court has proceeded to fix the matter for leading of evidence by the parties on 17th October 2013. The Court passed the following order on 02.09.2013:-

"..............अभियुक्त के विरूद्ध धारा 3(IX) अनुसूचित जाति/जनजाति अत्याचार निवारण अधिनियम के अपराध का आरोप विरचित किये जाने का पर्याप्त आधार है तदानुसार अभियुक्त सुभाष चन्द गुप्ता के विरूद्ध धारा 3(IX) अनुसूचित जाति/जनजाति अत्याचार निवारण अधिनियम का आरोप विरचित किया गया। पत्रावली वास्ते साक्ष्य दिनांक 17.10.2013 को पेश हो। साक्षीगण को तलब किया जाये।''

What is being argued by the learned counsel for the revisionist is that after the order dated 2nd September 2013, once the Court records the finding that the charge has already been framed by the Court and fixes a date of 7th October 2013 for leading of evidence, it means that there happens to be no intervening proceedings which was to be held between the intervening period from 2nd September 2013 to 17th October 2013, and hence there could not have been any order of the nature dated 3rd September 2013, and of framing of charge, because the findings with regards to the framing of charge has already been recorded in the impugned order dated 2nd September 2013.

In these peculiar circumstances, this Courts since had been brought and made aware of the order dated 3rd September 2013, (annexed as Annexure No. 11 to the revision), this Court while exercising its power under Section 401 of Cr.P.C. is also scrutinizing the veracity of the order dated 3rd September 2013 of framing of charge.

The precise case as it has been pleaded by the revisionist of the present revision is that initially as against the order dated 2nd September 2013, by virtue of which his application for discharge under Section 227 Cr.P.C., was rejected, there was reflection given with regards to the framing of charge in the said order itself (as quoted above) and this order dated 02.09.2013 was put to challenge by the revisionist by filings C-482 Application before this Court which remained pending for considerable long time after granting of an interim order on 09.11.2013 and later the C482 application No. 1203 of 2013, Subhash Chandra Gupta v. State, it was dismissed by the co-ordinate Bench of this Court holding thereof that as against the order impugned dated 2nd September 2013, rejecting the application for discharge the C482 application is not maintainable, only remedy available to the revisionist would be to file a revision under Section 397 Cr.P.C. as against an order dated 2nd September 2013. The coordinate Bench passed the following orders on 08.03.2019:-

"Learned Deputy Advocate General would raise preliminary objection that petition under Section 482 of the Cr.P.C. is not maintainable against the order of framing of charge. He would further contend that the impugned order being revisable, the petitioner should have filed revision.

Admittedly, the order framing of charge is revisable u/s 397 of Cr.PC. As such, petition u/s 482 Cr.P.C. would not be maintainable.

In view of above, present C482 petition is dismissed as not maintainable with liberty reserve to the petitioner to avail appropriate remedy before appropriate forum.

Interim order dated 11.11.2013 is hereby vacated."

The order of the co-ordinate Bench of this Court is to the effect that while rejecting the C-482 Application by an order dated 8th March 2019, it was left open for the revisionist to avail an appropriate remedy against the order dated 2nd September 2013 itself. Consequently, the present revision has been filed by the revisionist along with the Delay Condonation Application, wherein it has been reported by the Registry that there is delay of about 1933 days in preferring of the present revision against the impugned order dated 2nd September 2013.

But, considering the order, as passed by the co-ordinate Bench of this Court on 8th March 2019, as it was left open for the revisionist for preferring the revision, against the order dated 02.09.2013, this Court is of the view that the revisionist would be entitled for the benefit of the provisions contained under Section 14 of the Limitation Act, because he was bonafidely pursuing his remedy by filing of an Application under Section 482 of the Cr.P.C. Thus, in view of the aforesaid backdrop, the Delay Condonation Application, as filed along with the revision, seeking condonation of delay of 1933 days deserves to be condoned and the same is accordingly condoned. The Delay Condonation Application No. 666 of 2019 would stand allowed, hence the delay of 1933 days in filing the present Criminal Revision is condoned.

In compliance of the order of the co-ordinate Bench of this Court, the revision was preferred by the revisionist challenging the order dated 2nd September 2013 by filing the same on 19th March 2019. The revision was admitted by the Court by its order dated 22nd April 2019, an interim order was granted to revisionist, after condoning the delay and notices were issued to respondent No. 2. Step was taken by the revisionist on 23.04.2019 and in pursuance to the report which was received by the Registry of this Court on 22nd May 2019, it was reported that respondent No. 2 has sold the House to one Smt. Vandana Panwar as back as in 2001 and hence he could not be served. Ultimately, this Court, by an order dated 20th June 2019, in view of the aforesaid peculiar contingencies, the Court has directed the revisionist to take steps for serving the respondent by publication in the newspaper, about the notices and pendency of the present revision before this Court and in compliance thereto, the steps was taken by the revisionist and a service by publication was made in the two newspapers of wide publications in District Dehradun.

Later on the revisionist has also filed an affidavit of service, along with the application and a copy of the newspaper with an Application No. 8855 of 2019 as filed on 07.07.2019 to fortify the fact that the steps for effecting service by publication in compliance of the order dated 20th June 2019 has already been taken. Hence in view of the aforesaid developments, it would be deemed that respondent No. 2 has already been served by publication and yet despite of service being effected upon by publication, he has not put in appearance to oppose the revision. Consequently, this Court has got no option except to hear the revision itself on its own merits.

The fact, which has emerged from the records available in the instant case is that in a proceeding which was initiated by the complainant/respondent No. 2, by filing an application under Section 156 (3), for the purposes of registration of an FIR against the present revisionist for commission of an offence under Section 3(ix) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 (herein after to be referred as "the SC/ST Act of 1989). The said application was considered and an FIR was directed to be registered as against the present applicant which was registered as Case Crime No. 671 of 1993, under Section 3(ix) of the SC/ST Act of 1989 and an investigation was carried and consequently, the Investigating Officer has submitted a chargesheet No. 50/HM178 dated 02.03.1994, as against the present revisionist and consequently, a cognizance was taken by the Court of Chief Judicial Magistrate by registration of Criminal SST Number 11 of 1994, State vs. Subhash Chandra Gupta, on which the summoning order was issued as against the revisionist by an order dated 6th June 1994 in Special Sessions Trial No. 11 of 1994, State v. Subhash Chandra Gupta.

After hearing learned counsel for the parties about the aforesaid proceedings and taking cognizance of the Sessions Court by an order dated 6th June 1994, it is contented by the revisionist that he has filed an application before the Sessions Judge on 14.11.2013, for seeking a discharge under Section 227 Cr.P.C. as against the proceedings which has been drawn by the Sessions Court under Section 3(ix) of SC/ST Act of 1989, on the ground that the revisionist cannot be harnessed upon with the said offence because that is malicious proceedings drawn against him because at the time when he was working in the official capacity of a Welfare Administrator/ Labour Officer. At that point of time, there was a complaint registered on 4th May 1992 by one Kamla Devi for allegation of sexual harassment at working place, who was the employee of dispensary as against respondent No. 2, raising an allegation of sexual harassment being administered by him against her and consequently a departmental proceedings was drawn against respondent No. 2, in which the revisionist in the said official capacity was appointed as an Enquiry Officer for conducting the departmental proceedings against him.

It is the case of the revisionist that on culmination of the departmental proceedings against respondent No. 2, he has submitted a detailed report as against respondent No. 2 on 09.06.1992, thereby holding that the complaint registered by Kamla Devi and set of allegations of harassment against respondent No. 2 was to be genuine and the offence of sexual harassment was shown to be departmentally proved against the respondent No. 2 of which revisionist was the Investigating Officer who has submitted the enquiry report. It is only after the submission of the report by the present revisionist in discharge of his official duties that the respondent No. 2 had filed an application under Section 156 (3) only on 28th October 1993 i.e. after submission of enquiry report by the revisionist on 09.06.1992, in pursuance to which the criminal proceedings for the commission of an offence under Section 3 (ix) of SC/ST Act of 1989 was drawn against the revisionist.

He has submitted that the entire proceedings which have been initiated by the registration of the FIR registered as Case Crime No. 671 of 1993 is malicious proceedings and apart from the fact that the same being in violation of the provisions contained under Section 197 of the Code of Criminal Procedure, because the registration of the FIR by way of Criminal Case No. 671 of 1993, as against the present revisionist, who was a public servant, worked as Welfare Administrator, and since no prior permission was sought consequently, he submitted his application under Section 227 Cr.P.C., that on account of the said lacuna of non compliance of Section 197 Cr.P.C., that in itself would render the proceedings to be vitiated. But, however, the fact remains that when the summoning order was received by him and he preferred an application for discharge, the said application as preferred by him, came up for consideration before the Sessions Court and the Sessions Court, by virtue of the impugned order dated 2nd September 2013, had rejected the application for discharge on the pretext that the charge as against the revisionist for the said offences has already been framed and consequently the Court has fixed 17th October 2013, for the parties to the proceedings to lead their respective evidences in relation to the charge which has been framed against the revisionist.

However, what is reflected from the order dated 2nd September 2013, is that while rejecting the application for discharge that there was no intervening proceeding which was scheduled or expected to be held in between 2nd September 2013 and 17th October 2013. Later on, on considering the propriety of the order dated 2nd September 2013, there was an interim order granted in favour of the revisionist by this Court on 11th November 1993 in C482 Application No. 1203 of 2013 and the proceedings before the Court below was kept in abeyance. The same remained pending and even in the C482 application also the respondent No. 2 had not put in appearance till it was ultimately adjudicated by an order dated 8th March 2019 by the coordinate Bench of this Court. Even in the revision as it has already been observed that despite of service on respondent 2, he has not put in appearance to contest the pleadings where the revisionist had given the challenge to the order dated 2nd September 2013.

Under the aforesaid backdrop, since the complaint which was registered as a consequence of an order passed under Section 156 (3) it was subsequent to the discharge of the official responsibilities as an Investigating Officer against the respondent No. 2, it could be said that apparently the proceedings which was registered against the revisionist by the respondent No. 2 by way of registration of the FIR was nothing but a malicious proceedings and it was revengeful attitude also because he has submitted an equniry report as against respondent number 2 on the complaint of Kamla Devi. But, however, the learned Court below has taken cognizance to the offence and ultimately what is projected from the records of the revision is that the charges is shown to have been framed on 3rd September 2013 for the commission of an offence under Section 3 (ix) of the SC/SC Act, which was registered as Sessions Trial No. 4 of 2013, State v. Subhash Chandra Gupta.

Even if that be the situation as it has already been observed above that this Court while exercising its powers under Section 401 of Cr.P.C., the Court takes cognizance of the implications flowing from the order dated 3rd September 2013, which itself runs contrary to the manner in which the proceedings have been held by the Sessions Court between 2nd September 2013 till 17th October 2013 resulting into framing of charge during the intervening period i.e. on 3rd September, 2013, which could not be possibly in view of the findings which has been recorded in the impugned order dated 2nd September 2013 as thereafter the next date fixed by the Court for evidence itself was 17.10.2013. Hence, no proceedings for framing of charge could be held on 03.09.2013, during the intervening period of 02.09.2013 to 17.10.2013

Under the aforesaid backdrop and the manner in which an FIR has been registered and the set of allegation which has been levelled by the respondent No. 2 against the present revisionist that he has been harassed on caste lines between the period from 2nd April 1993 to 13th May 1993 is absolutely and apparently not made out because of the fact that if this was the set of allegation levelled by the respondent No. 2, there is no reason reflected from the record as to why he has not earlier drawn a proceedings of harassment being administered at the behest of the revisionist on the caste line as against respondent No. 2. There is no justification even as per the records as to why the invocation of proceedings under Section 156 (3) was taken only after the submission of the enquiry report of the departmental proceedings by the revisionist which was conducted by the revisionist as an Enquiry Officer against respondent No. 2, the report of which was submitted on 09.06.1992 hence it can be said that the proceedings which was initiated by way of registration of Case Crime No. 671 of 1993, Lalita Prasad v. S.C. Gupta and others only on 05.10.1993, it was nothing but an aptitude of respondent No. 2 to somehow harass the revisionist for the said offences on account of the fact that he has submitted a detailed department enquiry report against him as an enquiry officer who conducted an enquiry on the complaint and charges of sexual harassment levelled by female colleague against respondent No. 2.

In view of the aforesaid backdrop and coupled with the fact that the proceedings stand vitiated due to the non-compliance of the provisions of Section 197 of the Code of Criminal Procedure and also because of the fact that ever since, the initiation of the proceedings before Sessions Trial No. 4 of 2013, the respondent No.2 had not participated in the proceedings either before the learned trial Court or before the proceedings of the pending C-482 application, as well as in the present revision, it seems that he is not diligent and serious in pursuing his complaint which he has registered against the present revisionist for the commission of an offence under Section 3 (ix) of the SC/ST Act of 1989 as back as on 05.10.1993. Thus, apparently, while exercising my powers vested in me under Section 401 of the Code of Criminal Procedure, this Court is of the considered view that the manner in which the proceedings have been taken is nothing but a malicious prosecution and abuse of process of the Court of law, consequently, the charge which is shown to have been framed on 3rd September 2013, as well as the impugned order dated 2nd September 2013, rejecting the discharge application of the revisionist are hereby quashed and consequently, the entire proceedings of the Sessions Trial No. 4 of 1993, State v. Subhash Chandra Gupta, too would stand quashed and consequently the revision would too stand allowed.