Calcutta High Court (Appellete Side)
Sumit Kr. Gupta vs State Of West Bengal on 22 April, 2014
Author: Subrata Talukdar
Bench: Subrata Talukdar
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In the High Court at Calcutta
Criminal Revisional Jurisdiction
Appellate Side
22.04.2014
CRR 3236 of 2014 Sumit Kr. Gupta Vs. State of West Bengal Sri Rajdeep Majumder Sri Antarikhya Basu .....for the petitioner Sri Pawan Kr. Gupta ......for the State Sri Iqbal Hussain ....for the Opposite Party No.2 Sri Sri Ashraf Ali ... For the CBI/ Opposite Party In this criminal revisional application the petitioner prays for quashing of GR Case no. 2457 of 2013 pending before the Ld. 1st Judicial Magistrate, Sealdah and arising out of Phoolbagan P.S. Case no. 225 of 2013 dated 19th July, 2013 under Section 354 of the Indian Penal Code.
The facts of the case are briefly as follows:
a) The petitioner is a businessman and avers that is devoid of criminal antecedents; 2
b) O.P. No.2 lodged an FIR being Phoolbagan P.S. Case No. 225 of 2013 on 19th July, 2013 under Section 354 of the Indian Penal Code in connection thereof G.R. Case No. 2457 of 2013 was recorded before the learned Additional Chief Judicial Magistrate, Sealdah.
c) According to the FIR on 19th July, 2013 at around 5 P.M when the Informant-Opposite Party No.2 (O.P.No.2) had gone to a medical shop to purchase medicine and was returning back to her house, the petitioner met her and picked up a quarrel with her. She further alleged that the petitioner all of a sudden placed his hand on her breast. She therefore alleges that her modesty was outraged and hence lodged the FIR before the Phoolbagan P.S. on the same date itself.
d) The petitioner was arrested and produced before the learned Chief Judicial Magistrate, Sealdah where he was enlarged on bail on 25th July, 2013.
e) By order dated 25th July, 2013 the learned Additional Chief Judicial Magistrate (ACJM) Sealdah was pleased to take cognizance on the charge sheet and transfer the case by order dated 08th August, 2013 to the learned 1st 3 Judicial Magistrate, Sealdah. It is relevant to note that the charge sheet was filed on 24th July, 2013 vide charge-sheet No. 130 of 2013 alleging offence punishable under Section 354 of the Indian Penal Code.
Sri Rajdeep Majumdar, learned Counsel for the petitioner at first takes this Court to the Statements of the witnesses attached to the charge sheet. The statement of Pankaj Jaiswal, husband of the informant is as follows:-
"Today i.e. on 19.07.2013 my wife went to medical shop for purchasing some medicine. When she was left the above mentioned premises then she was locked the outer side gate for some time due to safety and security of the premises. In the mean time our tenant's grandson namely Sumit Gupta came to the spot and picked up quarreled with the my wife regarding the issue of locked of the outer gate of the premises and also the dispute of land lord and tenant and suddenly in presence of me the said Sumit Gupta become furious and sexually harassed by pushed his hand on my wife chest at about 17.15 hrs. so kindly take necessary action."4
Sri Majumdar next places the statement of Vijay Shaw, a neighbor. The statement is follows:-
" Today i.e. 19.07.2013 I was passing beside the residence of Rajni Jaiswal of P-199B R.K.S to or P-199B CIT Rd. Scheme-Vi Kol-54, P.S.-Phoolbagan and then found one disturbance was going with the Sumit Gupta and Rajni Jaiswal and it could be learnt by me into that the Sumit Gupta who is the tenant .......................grandson of the ............premises came to the .............. said premises and picked up quarrel with her and also sexually harassed to the Rajni Jaiswal by pushed his hand on her chest. That Sumit Gupta not now is residing at the premises permanently. He came to the premises very rarely. Kindly take step against Sumit Gupta."
Sri Majumdar also places the statement of the informant. The statement of the informant has been recorded in Bengali. Sri Majumdar particularly relies on the question put to the informant which, translated in English, reads to the effect:-
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Q. Why have you come here today?
A. I have been physically harassed and therefore I have come here today.
Sri Majumdar therefore argues that the dispute cropped up between landlord and tenant. The informant and her husband are the landlords in respect of the said premises and the petitioner is a tenant under them. On the said date, i.e. 19th July, 2013 there was a hot altercation between the parties in respect of the said premises. As a result of the hot altercation the informant may have been pushed by the petitioner. However, according to Sri Majumdar there was no intention on the part of the petitioner to outrage her modesty. The incident which occurred on 19th July, 2013 was purely accidental and unintentional.
Sri Majumdar states that a civil eviction suit subsisted between the parties and filed by the husband of the informant against the grand-father of the petitioner.6
Sri Majumdar draws the attention of this Court to Paragraph-14 of CRR 3236 of 2013 in which its averred that the accidental or unintentional touching of a lady during hot physical altercation would not fall within the purview of definition " outraging her modesty" as spelt out in Section 354 of the Indian Penal Code. Admittedly, the learned Counsel submits, the parties were at loggerheads over the tenanted premises. Sri Majumdar further submits that the only independent witness on behalf of the prosecution is Vijay Shaw. The statement of Vijay Shaw shows that he was not an ocular witness to the actual incident on 19th July, 2013. His statement is based on secondary hearsay evidence. Vijay Shaw states that "it could be learned by me" that the petitioner arrived at the said premises and picked up quarrel with the informant "and also sexually harassed her pushing his hand on her chest".
From the evidence of Pankaj Jaiswal, according to Sri Majumdar, it shows that the petitioner came to the spot and picked up quarrel with his wife regarding locking of the outer gate of the premises. Pankaj Jaiswal also directly refers to the ongoing dispute between the landlord and tenant. Pankaj Jaiswal states that as an outcome of the quarrel the "the petitioner became furious' 7 and sexually harassed by pushing his hands on my wife chest at about 17.25 hrs".
Sri Majumdar therefore submits that ingredients of Section 354 Indian Penal Code are not satisfied in the facts of the present case. There was no deliberate attempt or mens rea on the part of the petitioner to outrage the modesty of the informant-O.P.No.2. The entire incident was fallout of a heated exchange between the parties over keeping a gate locked in the tenanted premises. As a result of the heated exchange the informant got accidentally pushed by the petitioner.
Sri Majumdar highlights the fact that even the informant in her statement before the investigating officer had only said that she was physically harassed. Both the witnesses, Pankaj Jaiswal and Vijay Shaw, reiterate the aspect of physical harassment as a result of the quarrel. The lodging of the FIR is an attempt by the informant to teach the petitioner a lesson. Sri Majumdar submits that the learned 1st Judicial Court was not justified in taking cognizance of the charge-sheet. Pendency of the proceeding before the learned Magistrate would amount to an abuse of the process of Court in the facts and circumstances of the present case. 8
Per contra Sri Hussain, learned Counsel for private Opposite Party No.2-informant submits that at paragraph-14 of CRR No. 3236 of 2013 the incident of 19th July, 2013 has been admitted by the petitioner. The petitioner has further admitted that his conduct towards the informant was "accidental and unintentional".
The informant, as a lady alleges that her modesty has been outraged. To such effect she has also given a statement before the learned Magistrate. In such view of the matter Sri Hussain submits that the proceeding should not be quashed and the petitioner should stand trial before the learned Magistrate.
By showing Page 19 of CRR 3236 of 2013 which is the statement of Vijay Shaw. Sri Hussain submits that the grand-father of the petitioner was a tenant in the said premises. The learned Advocate for the private Opposite Party No-2-informant relied on the following decisions:-
Rupan Deol Bajaj (Mrs.) and Another Vs. Kanwar Pal Singh Gill and Another (reported in 1995 (6) SCC (Cri) 1059 Pg. 194 paras 14,15,17 and 23); The State of Orissa and Another Vs. Saroj Kumar Sahoo 9 (reported in (2005) 13 SCC page 540 paras 8,9,10 and 11).
Sri Pawan Kumar Gupta, learned Advocate for the State reiterates the submission of Sri Hussain. He submits that the moot question is whether the incident occurred or not. According to him the filing of the charge- sheet shows that such incident occurred. The occurrence of such an incident is a question of fact.
Learned Advocate for the State in addition to relying on Rupan Deol Bajaj (Mrs.) and Another Vs. Kanwar Pal Singh Gill and Another (reported in 1995 (6) SCC (Cri) 1059 also relies on Vidhyadharan Vs. State of Kerala (reported in 2004 SCC (Cri) 260 para10) By pointing out Paragraph-14 of CRR 3236 of 2013 Sri Gupta submits that whether the act of the petitioner is intentional or unintentional must be decided at the time of trial.
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Both Sri Hussain and Sri Gupta submit that this Court should not interfere in exercise of powers under Section 482 of the Code of Criminal Procedure.
Heard the parties. Considered the materials on record.
Section 354 of the Indian Penal Code provides as follows:-
"whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty shall be punished with imprisonment of either description for a term of one year which may extend to 5 years and shall also be liable to fine."
In Rupan Deol Bajaj' case the Hon'ble Apex Court held at paragraph 17 as follows:-
"17. It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is 11 also equally true that those ingredients being states of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. Since, however, in the instant case we are only at the incipient stage we have to ascertain, only prima facie, whether Mr Gill by slapping Mrs. Bajaj on her posterior, in the background detailed by her in the FIR, intended to outrage or knew it to be likely that he would thereby outrage her modesty, which is one of the essential ingredients of Section 354 IPC. The sequence of events which we have detailed earlier indicates that the slapping was the finale to the earlier overtures of Mr. Gill, which considered together, persuade us to hold that he had the requisite culpable intention. Even if we had presumed he had no such intention he must be attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the society- as the names and designations of the people given in the FIR indicate. While on this point we may also mention that there is nothing in the FIR to indicate, even remotely, that the indecent act was committed by Mr 12 Gill, accidentally or by mistake or it was a slip. For the reasons aforesaid, it must also be said that - apart from the offence under Section 354 IPC-an offence under Section 509 IPC has been made out on the allegations contained in the FIR as the words used and gestures made by Mr. Gill were intended to insult the modesty of Mrs. Bajaj."
In Vidyadharan' case the Hon'ble Apex Court held at paragraph-10 as follows:-
"10. Intention is not the sole criterion of the offence punishable under Section 354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A Victim of molestation and indignation is in the same 13 position as an injured witness and her testimony should receive the same weight. In the instant case after careful consideration of the evidence, the trial court and the High Court have found the accused guilty. As rightly observed by the courts below, Section 3(1) (xi) of the Act which deals with assaults or use of force to any woman belonging to a Scheduled Caste or Schedule Tribe with the intent to dishonor or outrage her modesty is an aggravated form of the offence under Section 354 IPC. The only difference between Section 3(1)(xi) and Section 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to a Scheduled Caste or Scheduled Tribe. Section 3(1)(xi) applies. The other difference is that in Section 3(1) (xi) dishonor of such victim is also made an offence. Section 448 provides for punishment relating to house trespass. In order to sustain the conviction under Section 448 IPC it must be found that the intention of the accused was to commit an offence or to intimidate, insult or annoy the complainant. There must be unlawful entry and there must be proof of one or the other of the intentions mentioned in Section 441 IPC. In the case at hand, evidence 14 clearly establishes the commission of offence punishable under Section 448."
In State of Orissa and Another Vs. Saroj Kumar Sahoo the Hon'ble Apex Court was pleased to take notice of its observations in Rupan Deol Bajaj case (Supra).
This Court notices the statement made by the informant herself, the husband of the informant Pankaj Jaiswal and the neighbor, Vijay Shaw. This Court after going through the submissions of the respective Counsel and the materials on record is of the opinion that the following basic facts emerge:-
(i) That there was a civil lis of landlord and tenant between the landlord and the predecessor-in-interest of the petitioner;
(ii) That as fallout of such civil dispute their inter se relationship had soured to a great extent.
(iii) On the date of the incident a heated exchange took place between the parties arising out of the locking of an outer gate in the subject premises. 15
(iv) In the heated exchange the petitioner is alleged to have pushed the informant from the front touching her.
(v) The private Opposite Party No.2-
informant has, in her statement before the learned Magistrate, admitted that "
she was physically harassed" and such physical harassment has been corroborated by both Pankaj Jaiswal and Vijay Shaw, PWs 2 and 3
(vi) Vijay Shaw PW 3 has admitted to fact that the dispute could have been fallout of the landlord tenant dispute subsisting between them.
From the above facts this Court is of the further opinion that the touching of the informant by the petitioner took place during a heated quarrel between them. The subject of the quarrel was the locking of the outer gate on the tenanted premises. In such view of the matter during the heat of the quarrel when the petitioner touched or pushed the informant accidentally in a wrongful manner, the same cannot be said to be with an intention to outrage her modesty.
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Section 354 of the Indian Penal Code is clear on its terms and such terms have been quoted above in this judgment.
This Court is in agreement with the argument of Sri Majumdar that the facts of the case do not show that any assault or criminal force was used on the informant intending to outrage or knowing it to be likely that it will outrage her modesty. The action of the petitioner on 19th July, 2013 can be attributed to the fallout of a heated quarrel which culminated in the petitioner touching the informant who may have been standing in close proximity.
This Court while respectfully noticing the observation of the Hon'ble Apex Court in Rupan Deol Bajaj Case (Supra) is of the opinion that the facts of this case are distinguishable. In Rupan Deol Bajaj Case (Supra) the Hon'ble Apex Court was pleased to notice that notice as follows:-
"The sequence of event which we have detailed earlier indicates that the slapping 17 was the finale to the earlier overtures of Mr. Gill, which considered together, persuade us to hold that he had the requisite culpable intention. Even if we have presumed he had no such intention he must be attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the society........."
In the facts of the present case there is no such sequence of event noticeable. The incident is solitary in nature and out of such solitary incident this Court is unable to find any culpable intention on the part of the petitioner which may attract the provisions of Section 354 IPC. The Hon'ble Apex Court was pleased to arrive at the conclusion of culpable intention of Sri Gill from the surrounding facts and circumstances including the conduct of Sri Gill in presence of others prior to such slapping. However, such surrounding circumstances are absent in the facts of the present case.
In Vidyadharan' case the Hon'ble Apex Court was pleased to hold that intention may not be the sole criterion of the offence punishable under Section 354IPC and it can be committed by a person assaulting or 18 harassing with criminal force any woman if he knows by such act the modesty of the woman is likely to be affected. The Hon'ble Court is further pleased to hold that while knowledge and intention are essentially things of the mind, the same must be culled out from the various circumstances in which and upon whom the alleged offence is to have been committed.
In the facts of this case it does not appear to the mind of this Court that any assault or criminal force as indicated under Section 354 IPC was used against the informant by the petitioner. The informant herself as well as the two witnesses, Pankaj and Vijay used the term physical harassment in the backdrop of the particular dispute which is utterly distinguishable from the intended use of criminal force or assault to outrage the modesty of a woman.
The informant may complain of physical harassment but she cannot complain of a definite apriori intention on the part of the petitioner to outrage her modesty on 19th July, 2013.
Furthermore, in this case no surrounding circumstances exist to convince this Court that the 19 petitioner arrived at the spot with an intention to outrage the modesty of the private O.P. No.2. The tempers between the parties soured as a result of the locking of the outer gate, more so, in the backdrop of the tenancy dispute. In such circumstances the petitioner is inclined to receive benefit of doubt.
This Court while respectfully noticing the judgement in State of Orissa Vs. Saroj Kr. Shaw is of the view that although the exercise of powers under Section 482 requires great caution, at the same time this Court cannot be unmindful of the observation of the Hon'ble Apex Court in Pepsi Foods Ltd. and Anr. Vs. special Judicial Magistrate and Ors. ( reported in 1998 SCC (Cri) 1400 reiterating the need to scrutinize the evidence carefully to examine if any offence is prima facie committed by all or any of the accused.
This Court therefore quashes G.R. Case No. 2457 of 2013 pending before the learned Judicial Magistrate, 1st Court, Sealdah arising out of Phoolbagan P.S. Case No. 225 of 2013 dated 19th July 2013 qua the petitioner.
CRR 3236 of 2013 is allowed.
20However, having regard to the particular facts and circumstances of the case the petitioner is directed pay costs of litigation to the private Opposite Party No.2 assessed at Rs. 25,000/- only.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)