Madhya Pradesh High Court
Nishant Mishra vs The State Of Madhya Pradesh on 17 August, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 17th OF AUGUST, 2022
WRIT PETITION NO. 17991 OF 2022
Between:-
NISHANT MISHRA S/O SHRI PRADEEP
KUMAR MISHRA, AGE 20 YEARS,
OCCUPATION SERVICE, R/O
VILLAGE BANGRA, PRESENT OFFICE
OF THE PETITIONER IS KOTIK
MAHENDRA BANK, PLOT NO. 7,
SECTOR 126, NOIDA (UTTAR
PRADESH)
........PETITIONER
(BY SHRI S.N. SETH - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY,
DEPARTMENT HOME, MANTRALAYA,
VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. THE SUPERINTENDENT OF POLICE,
MORENA, DISTRICT MORENA
(MADHYA PRADESH)
3. THE STATION HOUSE OFFICER,
POLICE STATION KOTWALI,
MORENA, DISTRICT MORENA
(MADHYA PRADESH)
2
4. SMT. SONAM SHARMA W/O SHRI
BRIJ MOHAN AHIRWAR, AGE 24
YEARS, OCCUPATION NOTHING, R/O
AJITPURA, DATIA, PRESENTLY
RESIDING AT HOUSE NO. 91,
JIWAJIGANJ, MORENA (MADHYA
PRADESH)
........RESPONDENTS
(SHRI G.P. CHAURASIYA - GOVERNMENT ADVOCATE FOR
STATE)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking following relief:-
"I) A direction may kindly be issued to the respondents / Investigating Officer to obtain call details, CCTV Footage of Bank and What's ap Chat of the respondent no. 4;
II) Any other relief which this Hon'ble Court may kindly be deem fit may kindly be granted."
2. It is submitted by the counsel for the petitioner that on the FIR lodged by the respondent No. 4, respondent No. 3 has registered Crime No.736/2022 at Police Station Kotwali Disrict Morena for offence under Sections 354 and 506 of IPC. During the course of arguments, it was submitted by the counsel for the petitioner that since the entire alleged incident of outraging the modesty had taken place in Delhi, therefore, the Police Station Kotwali District Morena has no jurisdiction to register the FIR. It is further submitted that the petitioner has made a representation 3 to the police authorities to obtain the call details, CCTV footage of Bank as well as whatsapp chat of respondent No. 4, but no heed has been paid by the police. It is further submitted that although the respondent No. 4 has claimed herself to be an illiterate lady, but the whatsapp chats of the petitioner indicate that she was writing in English.
3. Heard the learned counsel for the petitioner.
4. The petitioner by making an application to the police authorities had claimed that the respondent No. 4 had not come to Delhi, therefore, the said fact can be verified from taking her mobile location. In the application, it has also been objected that since the main offence of catching hold of the hands of respondent No. 4 with an evil intention and pressing her breast was allegedly committed in Delhi, therefore, Police Station Kotwali District Morena should have registered the FIR at '0' and should have transferred the case to the police of competent jurisdiction. Respondent No. 4 is a lady of easy virtue and by falsely implicating in Honey Trap, she is in habit of lodging the FIRs.
5. Sections 177 and 178 of CrPC reads as under:-
"177. Ordinary place of inquiry and trial. Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
178. Place of inquiry or trial. (a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed, partly in one local area and partly in another, or
(c) where an offence, is a continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a 4 Court having jurisdiction over any of such local areas."
6. From the plain reading of Section 178 of CrPC, it is clear that if a part of offence is committed within the territorial jurisdiction of different police station, then the matter can be tried by a Court having jurisdiction over any of such local areas.
7. If the FIR is considered, then it is clear that a part of cause of action had taken place within the territorial jurisdiction of Police Station Kotwali District Morena. It is specifically mentioned in the FIR that the respondent No. 4 had lost her husband in the year 2013 and from thereafter she is residing along with her children in a rented premises and was looking for a job. About 8 days prior to the date of FIR she received a phone calls from mobile No. 92649 70480 and the caller disclosed his name as Nishant Mishra and allured that he has come to know that she is in search of job and the petitioner is working in Mahindra Kotak Bank, Noida and is in habit of assisting the ladies who are destitute. Since the respondent No. 4 was in need of job, therefore, she started talking to the petitioner. The petitioner asked her to come to Delhi, where he would provide a job to her and thereafter she went to Delhi on 20.07.2022 and at about 06:00 PM reached to the place as instructed by the petitioner. The petitioner also came out of his Bank and they both had a tea in a tea stall. When the respondent No. 4 enquired about the job, then the petitioner assured that on the next day, they will talk about the job and, thereafter took her to an empty plot situated behind the tea stall and caught hold of her hand with evil intention and also started inserting his hand in her clothes to touch her breast. When it was objected by the respondent No. 4, then it was stated by the petitioner that if she wants to get some job, then she has to satisfy him otherwise he would kill her.
5Thereafter, the respondent No. 4 ran away from the spot and came back to Morena and informed the entire incident to her brother and, accordingly, FIR was lodged on 24.07.2022. Thus, as per the FIR, the petitioner had allured the respondent No. 4 by making her call which was received by the respondent No. 4 at a place falling within the territorial jurisdiction of Morena. Since only on the allurement of the petitioner, respondent No. 4 had gone to Delhi, therefore, a part of cause of action had also arisen within the territorial jurisdiction of Police Station Kotwali District Morena and in the light of Sections 177 and 178 of CrPC, the Police Station Kotwali District Morena also has territorial jurisdiction to entertain the FIR. Therefore, no mistake was committed by the Police Station Kotwali District Morena by registering the FIR.
8. So far as the question of request made by the petitioner to the police authorities for investigating the matter in a particular manner is concerned, it is well established principle of law that this Court while exercising power under Article 226 of the Constitution of India cannot supervise the investigation, although it can monitor the same. The difference between the supervision and monitoring has been explained by the Supreme Court in the case of Manohar Lal Sharma Vs. Principal Secretary and others reported in (2014) 2 SCC 532 and has held as under:-
"38. The monitoring of investigations/inquiries by the Court is intended to ensure that proper progress takes place without directing or channelling the mode or manner of investigation. The whole idea is to retain public confidence in the impartial inquiry/investigation into the alleged crime; that inquiry/investigation into every accusation is made on a reasonable basis irrespective of the position and status of that person and 6 the inquiry/investigation is taken to the logical conclusion in accordance with law. The monitoring by the Court aims to lend credence to the inquiry/investigation being conducted by CBI as premier investigating agency and to eliminate any impression of bias, lack of fairness and objectivity therein.
39. However, the investigation/inquiry monitored by the court does not mean that the court supervises such investigation/inquiry. To supervise would mean to observe and direct the execution of a task whereas to monitor would only mean to maintain surveillance. The concern and interest of the court in such "Court-directed" or "Court-monitored" cases is that there is no undue delay in the investigation, and the investigation is conducted in a free and fair manner with no external interference. In such a process, the people acquainted with facts and circumstances of the case would also have a sense of security and they would cooperate with the investigation given that the superior courts are seized of the matter. We find that in some cases, the expression "Court-monitored" has been interchangeably used with "Court-supervised investigation". Once the court supervises an investigation, there is hardly anything left in the trial. Under the Code, the investigating officer is only to form an opinion and it is for the court to ultimately try the case based on the opinion formed by the investigating officer and see whether any offence has been made out. If a superior court supervises the investigation and thus facilitates the formulation of such opinion in the form of a report under Section 173(2) of the Code, it will be difficult if not impossible for the trial court to not be influenced or bound by such opinion. Then trial becomes a farce. Therefore, supervision of investigation by any court is a contradiction in terms. The Code does not envisage such a procedure, and it cannot either. In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation 7 in a free, fair and time-bound manner without any external interference."
9. It has been held in the case of Manohar Lal Sharma (supra) that to supervise would mean to observe and direct the execution of a task whereas to monitor would only mean to maintain surveillance. If this Court directs the Police Station to investigate the offence in a particular manner, then it would certainly amount to supervision and not monitoring. Monitoring the investigation is just to ensure that the Investigating Agency is conducting the investigation in free, fair and time bond manner without any external interference. Thus, the relief sought by the petitioner in the present petition cannot be granted as it was amount to supervision which is not permissible under the law.
10. The Supreme Court in the case of XYZ Vs. State of Madhya Pradesh by order dated 05.08.2022 passed in SLP (Cri) No.1674/2022 has held as under:-
"30. Finally, we wish to once again reiterate the importance of courts dealing with complainants of sexual harassment and sexual assault in a sensitive manner. It is important for all courts to remain cognizant of the fact that the legal process tends to be even more onerous for complainants who are potentially dealing with trauma and societal shame due to the unwarranted stigma attached to victims of sexual harassment and assault. At this juncture, especially in cases where the police fails to address the grievance of such complainants, the Courts have an important responsibility. As the Delhi High Court held in Virender v State of NCT of Delhi, courts have to remain alive to both treating the victim sensitively while also discharging the onerous task of ensuring that the complete truth is brought on record so as to facilitate adjudication and answering the basic question regarding 8 the complicity of the accused in the commission of the offence. In that case, the High Court held that:
22. It is to be noted that the embarrassment, and reservations of those concerned with the proceedings including the prosecutrix, witnesses, counsel may result in a camouflage of the trauma of the victim's experience. The judge has to be conscious of these factors and rise above any such reservations to ensure that they do not cloud the real facts and the actions which are attributable to the accused persons. The trial courts must be alive to the onerous responsibility which rests on their shoulders and be sensitive in cases involving sexual abuse.
(emphasis supplied)
31. While the Delhi High Court made these observations while dealing with a case of rape, courts must remain alive to their duty to treat victims sensitively in cases alleging all forms of sexual harassment and sexual assault. The Courts must try to ensure that the process of attempting to bring alleged perpetrators to justice is not onerous for the victims. Aggrieved persons should not have to run from pillar to post for the mere registration of a complaint and initiation of investigation especially when a cognizable offence is prima facie made out in their complaint.
32. In Aparna Bhat v State of Madhya Pradesh, a two-judge Bench of this Court took note of the "entrenched paternalistic and misogynistic attitudes that are regrettably reflected at times in judicial orders and judgments." In that case, Justice S. Ravindra Bhat observed and we reiterate:
31. The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, 9 where she is the survivor and an aggrieved party.
Even an indirect undermining of this responsibility cast upon the court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court. The current attitude regarding crimes against women typically is that "grave" offences like rape are not tolerable and offenders must be punished. This, however, only takes into consideration rape and other serious forms of gender-based physical violence. The challenges Indian women face are formidable : they include a misogynistic society with entrenched cultural values and beliefs, bias (often sub- conscious) about the stereotypical role of women, social and political structures that are heavily male- centric, most often legal enforcement structures that either cannot cope with, or are unwilling to take strict and timely measures. Therefore, reinforcement of this stereotype, in court utterances or orders, through considerations which are extraneous to the case, would impact fairness.
...
43. The instances spelt out in the present judgment are only illustrations; the idea is that the greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge. Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence (of any kind from the most aggravated to the so-called minor offences).
33. The legislature has, at places, moulded criminal procedure to enable victims of sexual crimes to 10 seek justice. This has been done in recognition of the gravity of sexual crimes and the need to handle such cases in an appropriately sensitive manner. For instance, Section 327 CrPC provides for in camera trials to be conducted with respect to offences punishable under Sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code 1860.
34. This Court, too, has had its role to play in ensuring that justice does not remain inaccessible. In State of Maharashtra v. Bandu @ Daulat, this Court directed that special centres be set up in each state in order to facilitate depositions by vulnerable witnesses, including victims of sexual offences. In Smruti Tukaram Badade v. State of Maharashtra, a two judge bench of this Court (of which one of us, Dr. DY Chandrachud, J. was a part) supplemented the directions issued in Bandu @ Daulat (supra) with respect to setting up such special centres.
35. It is the duty and responsibility of trial courts to deal with the aggrieved persons before them in an appropriate manner, by:
a. Allowing proceedings to be conducted in camera, where appropriate, either under Section 327 CrPC or when the case otherwise involves the aggrieved person (or other witness) testifying as to their experience of sexual harassment / violence; b. Allowing the installation of a screen to ensure that the aggrieved woman does not have to see the accused while testifying or in the alternative, directing the accused to leave the room while the aggrieved woman's testimony is being recorded; c. Ensuring that the counsel for the accused conducts the cross-examination of the aggrieved woman in a respectful fashion and without asking inappropriate questions, especially regarding the sexual history of the aggrieved woman. Cross-examination may also be conducted such that the counsel for the accused 11 submits her questions to the court, who then poses them to the aggrieved woman;
d. Completing cross-examination in one sitting, as far as possible."
11. It is next contended by the counsel for the petitioner that in the light of the judgment passed by the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar and another reported in (2014) 8 SCC 273, the police must issue a notice under Section 41-A of CrPC.
12. Heard the learned counsel for the petitioner.
13. In the entire writ petition, it has not been pleaded as to why the petitioner has an apprehension that the police would not act in accordance with law. Even otherwise, he has a remedy of filing an application under Section 438 of CrPC for grant of anticipatory bail.
Furthermore, no such relief has been claimed by the petitioner in the writ petition.
14. Considering the totality of the facts and circumstances of the case, coupled with the fact that the petitioner himself has filed whatsapp chats which had taken place between him and respondent No. 4, in which respondent No. 4 has specifically made allegations against the petitioner, this Court is of the considered opinion that no case is made out for entertaining this writ petition.
15. Accordingly, the petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE Abhi Digitally signed by ABHISHEK CHATURVEDI Date: 2022.08.18 17:14:30 +05'30'