Delhi District Court
B. Venkateshara Rao vs State ( Govt. Of Nct Of Delhi) on 8 April, 2016
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Revision No. 144/15
ID No. 02406R0308972015
B. VENKATESHARA RAO
S/o Basavalingarn
R/o 1888, PocketB,
Mayur Vihar, PhaseII,
Delhi110091
. . . . Revisionist
Through: Shri Vikas Pahwa,
Senior Advocate with
Ms. Ashta Sharma,
Advocate
versus
1.State ( Govt. of NCT of Delhi)
...... Respondent No. 1
Through: Sh. M. Zafar Khan,
Addl. Public Prosecutor
2. Ms. Latha Venkatraman
D/o Late Shri R. Venkatraman,
R/o A137B, First Floor, Sector27
Noida, . . . . . Respondent no. 2
Through: Shri H.K. Chaturvedi
Advocate
CR No.144/15 1 of 13
__________________________________________________________
Date of Institution : 26.09.2015
Date when arguments were heard : 05.03.2016
Date of Judgment : 08.04.2016
JUDGMENT :
1. The present revision petition filed by revisionist under section 397 read with section 399 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C.") is directed against order dated 21.10.2014 passed by learned Metropolitan Magistrate (in short "MM")01, SouthEast District, Saket Courts, New Delhi in case C.C No.322/12 titled as Latha Venkatraman Vs. B. Venkateshwara Rao, Police Station Lodhi Colony.
2. Ms. Latha Venkatraman (respondent no.2) filed complaint against revisionist before the court of learned ACMM, wherein she prayed to summon, try and punish the revisionist for offence u/s 186/353/354/509 of The Indian Penal Code (in short "IPC"). On 30.05.06, learned ACMM directed SHO Police Station Lodhi Colony to register a case and investigated the matter.
3. Pursuant to the direction passed by learned ACMM, FIR No.288/06 u/s 186/353/354/509 IPC was registered on 19.08.06 at Police Station Lodhi Colony. Matter was investigated as per law. No incriminating material was found against revisionist. Therefore, on conclusion of investigation, the investigating officer CR No.144/15 2 of 13 filed cancellation report before the court.
4. Ms. Latha Venkatraman (respondent no.2), being dis satisfied and aggrieved by the report of investigating officer, filed protest petition before the court of learned MM on 02.07.08. Later on, she prayed for treating the case as a complaint case. Her statement was recorded on 26.11.11. In view of statement given by respondent no.2, learned MM treated the present case as a complaint case.
5. Brief facts of respondent/complainant's case is that she was working as Executive Secretary (GradeI) with Indian Renewable Energy Development Agency Limited (in short "IREDA"). Revisionist was working with IREDA as General Manager (DCCS). Revisionist was Reporting Officer of respondent/complainant. She alleged that on 05.08.05 at around 9:45 AM, she went to the cabin of revisionist and at that time, one Chanderjeet Singh was present. Revisionist directed him to go out. She further alleged that revisionist directed her to sit at the computer table and told her to send some urgent emails. She stated that she bent down to switch on the computer, then revisionist used certain filthy remarks such as "Latha, you are a sexy lady and why are you wasting your time". She further alleged that revisionist also made gesture intended to insult her CR No.144/15 3 of 13 modesty. According to respondent, she requested revisionist not to use such filthy remarks. She alleged that when she was doing her work on the computer table, revisionist turned around and used criminal force by touching and molesting her breasts. As per respondent, she reacted to the act of revisionist. Then, revisionist forcibly took her in his arms and started molesting her by putting his hands against her breast. She alleged that in the said manner, revisionist outraged her modesty. Respondent alleged that in reaction to the act of revisionist, she tried to get separated from him by using her physical force against the chest of revisionist.
6. Respondent stated that she approached the concerned department against the aforesaid act of revisionist, but of no use. She further stated that she had been performing her duties sincerely, honestly and diligently since the date of her appointment. She averred that she reported the incident dated 05.08.05 in writing to various authorities but revisionist concocted the false story and acting upon the false allegations made by the revisionist, she was charge sheeted vide Memorandum dated 12.09.05 and in the charge sheet, it was alleged that she physically assaulted the General Manager by putting his chest and upper part of the body.
7. In support of allegations made in the complaint by CR No.144/15 4 of 13 respondent no.2, she examined herself as CW1. She did not examine any other witness in support of her case.
8. Vide order dated 21.10.14, learned MM was pleased to summon the revisionist for offence punishable u/s 354/509 IPC.
9. Revisionist, feeling aggrieved by impugned order dated 21.10.14 passed by learned MM, has preferred the present petition.
10. On notice, respondent no.1 appeared through Additional Public Prosecutor and respondent no.2 appeared with her counsel to contest the petition. No formal reply to the petition of revisionist has been filed by the respondents.
11. I have heard the submissions advanced by Shri Vikas Pahwa, learned senior counsel for revisionist, Sh. M. Zafar Khan, learned Additional PP for State and Shri H.K. Chaturvedi, learned counsel for respondent no.2.
12. It was submitted by learned senior counsel for revisionist that learned MM, while summoning the revisionist did not consider the closure report filed by police in case FIR No.288/06 Police Station Lodhi Colony, which was registered on the complaint of respondent no.2 Latha Venkatraman. He further submitted that the local police on exactly the same facts and evidence opined that the FIR registered on the complaint of CR No.144/15 5 of 13 respondent no.2 was false and no cognizable criminal offence is made out. He further submitted that the police recorded statement of at least 4 witnesses, who were present at the spot at the time of alleged incident, who gave contrary version of the incident as well as by respondent no.2. He further submitted that the learned trial court did not pass any order on the closure report and while ignoring the same accepted the protested petition and on the request of respondent no.2 treated the same as a private complaint and after recording her statement u/s 200 Cr.P.C., while ignoring the report u/s 173 Cr.P.C. issued the impugned order of summoning. Learned senior counsel argued that the procedure adopted by learned MM is exfacie illegal and without jurisdiction as it was imperative for him to deal with the report u/s 173 Cr.P.C., which was the outcome of investigation conducted by an independent agency. It was further submitted that learned MM failed to appreciate that the police in the present case has conducted a full fledged investigation and had filed a cancellation report u/s 173 Cr.P.C. He argued that allegations against the revisionist were found to be false and baseless and the present case is nothing but an attempt by the respondent no.2 to harass, humiliate and defame the revisionist. He further submitted that the learned MM also failed to appreciate that the revisionist CR No.144/15 6 of 13 was exonerated in the departmental proceedings and was cleared of all the charges in view of the report of complaint committee duly constituted to look into the complaint made by respondent no.2. He further submitted that learned MM, while passing the impugned summoning order wrongly appreciated the law laid down by Hon'ble Apex Court in the case reported as M/s Pepsi Foods Vs. Special Judicial Magistrate & Ors. (1998) 5 SCC
749.
13. Per contra, it was submitted by learned Additional PP for State that the order passed by learned MM is a nonspeaking order and learned MM has not applied his mind to the entire material available on record. He further submitted that learned MM did not consider the report submitted by police on conclusion of investigation in the case in respect of allegations made by respondent no.2. He further submitted that learned MM has passed the impugned order in a mechanical manner and without appreciating the entire facts and circumstances of the case.
14. On the other hand, it was submitted by learned counsel for respondent no.2 that there is no infirmity or illegality in the impugned order passed by learned MM and the same does not call for interference by this court. He further submitted that CR No.144/15 7 of 13 learned MM has passed the impugned order after considering the entire material on record.
15. I have considered the rival submissions of both the parties and perused the material on record.
16. Trial court record shows that on the complaint filed by respondent no.2 Ms. Latha Venkatraman, learned ACMM directed the police to register the FIR and investigate the matter. Pursuant to the directions of learned ACMM, FIR No.288/06 u/s 186/353/354/509 IPC was registered at Police Station Lodhi Colony. Matter was investigated as per law. On conclusion of investigation, the investigating officer filed cancellation report.
17. Respondent no.2 Ms. Latha Venkatraman was not satisfied with the report of investigating officer. Therefore, she filed protest petition. The trial court record reflects that the said protest petition has not been decided by learned ACMM till date. Learned trial court also did not pass any order on the report of investigating agency. On the basis of statement given by respondent no.2 Ms. Latha Venkatraman, on 26.11.11, learned ACMM treated the present case as complaint case.
18. Hon'ble Apex Court in the case of H.S. Bains, Director, Small Saving cum Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), CR No.144/15 8 of 13 (1980) 4 Supreme Court Cases 631, held as under: "The mere fact that the magistrate had earlier ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore, the magistrate will not be barred from proceeding under Sections 200, 203 and 204. The magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. A magistrate who on receipt of a complaint, orders an investigation under Sections 156 (3) and receives a police report under Section 173 (2), may, thereafter, do one of three things : (i) he may decide that there is no sufficient ground for proceeding further and drop action;
(ii) he may take cognizance of the offence under Section 190 (1) (b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their CR No.144/15 9 of 13 report; (iii) he may take cognizance of the offence under Section 190 (1) (a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witness under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202, if he thinks fit.
Thereafter, he may dismiss the complaint or issue process, as the case may be."
19. In the case in hand, learned MM neither accepted the report of investigating officer nor rejected the same. In fact, no order was passed by learned MM regarding acceptance or rejection of the report of investigating officer. Learned MM was expected to pass a reasoned order for acceptance or rejection of the report of investigating agency. Even no order was passed on the protest petition filed by respondent no.2.
20. In view of statement given by respondent no.2, learned MM treated the case as private complaint case. Respondent no.2 examined herself as CW1 in support of the allegations made by her in her complaint. Learned MM summoned the revisionist to face trial for offence u/s 354/509 IPC on the basis of statement given by respondent no.2 and the documents relied upon by her.
CR No.144/15 10 of 13
21. In the case of Pepsi Food Ltd v/s Special Judicial Magistrate (1998) 5 SCC 749, it was observed by Hon'ble Apex Court that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint and have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
22. It is well settled that the order of Magistrate summoning the accused must reflect that he has applied his mind to the facts CR No.144/15 11 of 13 of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.
23. In the instant case, the investigating officer, on conclusion of investigation filed final report/cancellation report. Respondent no.2 filed the protest petition. The material, on the basis of which the revisionist was summoned, has not been discussed in the impugned order. The investigation report and the documents filed along with the report has also not been considered by the learned MM, while passing the impugned order. Thus prima facie, the impugned order passed by learned MM is not sustainable in the eyes of law.
24. For the reasons discussed above, the impugned order of learned MM dated 21.10.2014 is hereby set aside. Matter is remanded back to the court of learned MM, who after hearing submissions of respondent no.2 and all the material on record, including the investigation report and the documents submitted alongwith it shall pass fresh order as per law.
25. In view of above, the petition filed by revisionist is disposed off.
CR No.144/15 12 of 13
26. Parties are directed to appear before learned MM on 22.04.2016 at 02.00 p.m.
27. A true copy of judgment along with TCR be sent back to the court concerned. Revision file be consigned to record room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e. 08.04.2016 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
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