Delhi District Court
Priya Darshini Arora vs State on 27 October, 2020
1
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQ)
TIS HAZARI COURTS, DELHI
Cr. Revision No. 366/2019
PRIYA DARSHINI ARORA
LAURUS LAW OFFICES
261, LAWYERS CHAMBER
CIVIL WING, TIS HAZARI COURTS,
NEW DELHI, DELHI 110054
.... REVISIONIST
versus
1. STATE
2. AXIS BANK LIMITED
THROUGH ITS CEO, SHIKHA SHARMA
148, STATESMAN HOUSE,
BARAKHAMBA ROAD,
NEW DELHI 110001
3. JAYANT KUMAR, ADDITIONAL VICE PRESIDENT
CREDIT CARD DIVISION, AXIS HOUSE,
SECTOR 128, NOIDA 128, NOIDA 201304
4. ABHISHEK SINGH, MANAGER
CREDIT CARD DIVISION, AXIS HOUSE,
SECTOR 128, NOIDA 128, NOIDA 201304
.... RESPONDENTS
Date of filing : 07.06.2019
First date before this court : 07.06.2019
Arguments concluded on : 15.10.2020
Date of Decision : 27.10.2020
Appearances :
Counsel for Revisionist: Shri Jai Kumar Bhardwaj, Advocate
Counsel for Private Respondents: Ms.Apoorva Saxena, Advocate
Additional Public Prosecutor for State: Shri K.D.Pachauri
Cr. Revision No.366/2019
Priya Darshini Arora vs State & Ors. Page 1 of pages 12
2
JUDGMENT
1. By way of this petition under Section 397 CrPC, the revisionist has assailed order dated 04.02.2019 of the learned Magistrate whereby application under Section 156(3) CrPC of the revisionist/complainant was dismissed, granting her an opportunity to substantiate her allegations by leading evidence. The private respondents herein are officers of a bank, sought to be summoned for trial as accused. I heard learned counsel for the revisionist and the private respondents as well as learned prosecutor for the State, who all took me through records.
2. Briefly stated, the circumstances leading to the impugned order are as follows.
2.1 The revisionist, a practicing lady advocate holds, since the year 2011 an account and a credit card issued by the respondent bank. On 22.08.2018, the revisionist got a call from the respondent bank, demanding certain payments outstanding against the said credit card, to which the revisionist politely assured to pay within two weeks.
2.2 But again on 24.08.2018, the revisionist received another phone call from the specified phone number at 09:00pm and the caller identified himself to be from the respondent bank. The caller started hurling abuses without any reason or provocation and said "tu paise de rahi hai ya nahi? Mujhe pata hai tu kahan rehti hai aur wo bhi akeli, agar seedhi tarah se paise nahi diye toh hume aur bhi tarike aate hain". The revisionist got scared on hearing the said call. 2.3 Thereafter on 27.08.2018, three persons from the respondent bank came to the chamber of the revisionist in Civil Wing, Tis Hazari Courts and in the presence of her clients and staff, again started hurling abuses, saying "paisa tere baap ka hai jo nahi de rahi hai. Agar tune paisa nahi diya toh tujhe pata nahi ki Cr. Revision No.366/2019 Priya Darshini Arora vs State & Ors. Page 2 of pages 12 3 hum kya kar sekte hain". On account of shouting by the said persons outside the chamber of the revisionist, her image was tarnished amongst her neighbors. 2.4 On 10.09.2018, again the revisionist received a call and the caller asked, "Priya bol rahi hai, main Axis Bank se bol raha hoon". The revisionist immediately conveyed her refusal to speak with said person or anybody from Axis Bank and handed over the telephone to a colleague after which the caller disconnected the call.
2.5 The revisionist tried calling up the respondent bank to enquire about the identity of the callers but the bank did not disclose the same. 2.6 On 10.10.2018 at about 05:56pm, the revisionist received another phone call in which the caller asked "tu Priya bol rahi hai?" When the revisionist affirmed her identity, the caller said "tu seedhi tarah se paise de rahi hai ya hum koi aur tarika apnaye". When the revisionist asked the caller to speak properly and politely, the caller shouted back "Mujhe tameez sikhane wali tu hoti kaun hain. Khud toh paise de nahi rahi aur mujhe tameez sikhane chali hai". Hearing this, the revisionist disconnected the call and blocked the said phone number. 2.7 The revisionist believes that all those illegal threatening calls were made by the anti-social elements and goons engaged by the private respondents in order to illegally extort money from her. According to the revisionist, even if she owed some money to the respondent bank, procedure laid down by law ought to have been adopted instead of making such phone calls to her. Since the local police of PS Sabzi Mandi did not take any action on the complaint filed by her, the revisionist filed an application under Section 156(3) CrPC in the magisterial court, which culminated into the impugned order. Hence, the present revision petition.
Cr. Revision No.366/2019Priya Darshini Arora vs State & Ors. Page 3 of pages 12 4
3. In the impugned order, the learned magistrate took a view that apparently some outstanding payments against the credit card were not made by the revisionist so the officials of the recovery wing of the respondent bank were repeatedly calling her up and she has specified some selected portions of her conversation with those officials. The learned magistrate further observed in the impugned order that no doubt the language used is harsh and may be offensive for any educated woman, but the same would not bring her case within the parameters of any cognizable offence. Therefore, the application under Section 156(3) CrPC was dismissed granting opportunity to the revisionist to substantiate her allegations by leading evidence.
4. On behalf of the revisionist, it was argued that her complaint prima facie establishes offences under Section 506 IPC and under Section 509 IPC, insofar as the utterances made by the agents of the accused persons intimidated the revisionist and she got scared. Further, according to the revisionist, the utterances of the agents of the accused persons also amount to offence under Section 509 IPC. So far as the offence alleged under Section 506 IPC is concerned, for present purposes, it was fairly admitted on behalf of the revisionist that the offence under Section 506 IPC being a non-cognizable offence, the police could not have registered a case and even the learned magistrate could not have directed investigation under Section 156(3) CrPC. But since the offence under Section 506 IPC was committed in the same transaction as with the offence under Section 509 IPC, the latter offence being a cognizable offence, according to the revisionist, the learned magistrate ought to have directed the registration of FIR and investigation. According to the revisionist, the learned magistrate erred in holding that no cognizable offence is made out.
Cr. Revision No.366/2019Priya Darshini Arora vs State & Ors. Page 4 of pages 12 5
6. Learned counsel for the revisionist referred to the utterances of the recovery agents, as detailed in the complaint of the revisionist as well as in the present revision petition, and contended that the words uttered by the recovery agents of the accused persons clearly amount to outraging the modesty of the revisionist since she is living alone, so offence under Section 509 IPC is made out. In support of his arguments, learned counsel for revisionist placed reliance on the judgment of the Hon'ble Supreme Court in the case of Rupam Deol Bajaj vs Kanwar Pal Singh Gill, MANU/SC/0080/1996 and of the Hon'ble Gauhati High Court in the case of Swapna Barman vs Subir Dass, MANU/GH/0277/2003.
7. Learned counsel for private respondents argued that there is no evidence brought by the revisionist in support of her allegation that she received late night phone calls, as she could have placed on record screen shots of her call logs. It was also argued by learned counsel for private respondents that merely on the oral statements of the revisionist, FIR could not registered by police. As regards the offence under Section 509 IPC, learned counsel for private respondents argued that offence under Section 509 IPC is not made out insofar as the 'modesty' referred to in Section 509 IPC implies the sexuality of a woman and unless the utterances shock decency of the lady concerned, offence under Section 509 IPC is not made out. In support of her arguments, learned counsel for private respondents placed reliance on the judgment of Hon'ble Bombay High Court in the case of Sau. Anuradha R. Kshirsagar vs State of Maharashtra & Ors, 1991 CriLJ 410.
8. Learned prosecutor supported the impugned order contending that the alleged utterances of the recovery agents of the private respondents do not Cr. Revision No.366/2019 Priya Darshini Arora vs State & Ors. Page 5 of pages 12 6 amount to invasion of privacy and at the most only an offence of intimidation is prima facie made out under Section 506 IPC which is a non-cognizable offence, so the FIR cannot be registered in this case.
9. The core question accordingly is as to whether the complaint filed by the revisionist prima facie makes out an offence under Section 509 IPC. If so, the offence under Section 509 IPC being a cognizable offence, the view taken by the learned magistrate in the impugned order cannot be upheld.
10. At the outset, it would be apposite to traverse through the relevant legal position.
10.1 The provision under section 509 IPC lays down thus:
"509. 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."
10.2 In the case of Rupan Deol Bajaj (supra), relied upon by learned counsel for the revisionist, the act of the accused, tested on the anvil of Section 509 IPC was the accused slapping the complainant lady on her posterior. The Hon'ble Supreme Court held that the ultimate test for ascertaining whether modesty has been outraged is: whether the action of the offender such, as could be perceived as one which is capable of shocking the sense of decency of a woman; and the act of slapping the lady on her posterior certainly amounted to outraging her modesty, because it was not only an affront to the normal sense of feminine decency, but also an affront to the dignity of the lady - "sexual overtones" or not, notwithstanding.
Cr. Revision No.366/2019Priya Darshini Arora vs State & Ors. Page 6 of pages 12 7 10.3 In the case of Swapna Barman (supra), relied upon by learned counsel for the revisionist, the impugned act was that for past 7-8 months, the accused, coupling his name with the complainant used to call her up, inflicting abusive language, and on the fateful night at about 11:30pm, the accused entered verandah of her house and knocked at the door calling her names, uttering that her life would not be happy with Dhiresh (husband of complainant) and that it is he (the accused) who is her husband. The Hon'ble Gauhati High Court held that if a prudent man goes through these statements, he will definitely come to a conclusion that there was evil intention on the part of that person using the language depending on the manner in which it was spoken, the odd hours and place where it was spoken. The Hon'ble High Court also held that coupling the name with the name of a woman is sufficient to insult her modesty. 10.4 In the case of Sau.Anuradha (supra), relied upon by learned counsel for private respondents, the impugned act was the utterances of the accused, exhorting to catch the ladies by their hair, kick them on the waist, pull them out and see as to how those lady teachers, who did not leave the hall, stay at Akola. The Hon'ble Bombay High Court held thus:
"6. We have now to find out whether these utterances have anything to do with the modesty of the woman. The utterance are (1) catch them by their hair (2) kick them on the waist, (3) pull them out and (4) I will see as to how those lady teachers, who did not leave the hall, stay at Akola. What Mr. Sirpurkar urged before me was that when the accused uttered the words of catching the lady teachers by their hair, it is violative of modesty of a woman and, therefore, these utterances constitute an offence punishable under Section 509 of the Indian Penal Code. It is difficult to accept this proposition. 'Modesty of a woman' is altogether different concept which has a very little to do with the physique of the Cr. Revision No.366/2019 Priya Darshini Arora vs State & Ors. Page 7 of pages 12 8 woman. Modesty of a woman is intimately connected with the feminity including her sex. Bashfulness is another characteristic of this feminity. Any attempt of assault on this aspect may amount to insulting the modesty. Mudholkar J.
in State of Punjab v. Major Singh, observed in paragraph 13 :
"In my judgment when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that act must fall within the mischief of this section."
Bachawat, J. in paragraph 16 observed :
"I think that the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses the modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under S. 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act, nevertheless, the offender is punishable under the section."
6A. Sarkar, J. dissented with the majority decision, but the dissent was on other point with which we are not concerned in the present case. The dissent was on the point whether the woman must necessarily be conscious of the assault on her Cr. Revision No.366/2019 Priya Darshini Arora vs State & Ors. Page 8 of pages 12 9 modesty. As far as the other position is concerned, there is unanimity of opinion. The concept of 'modesty' concerns with feminity including sex. Wherever there is an assault or insult to this feminity or the like qualities accompanying it, the offence under Section 509 of the Indian Penal Code will be made out.
7. From this point of view, the utterances with which we are concerned in the present case, do not violate the concept of feminity. Catching the woman by hair, kicking on her waist, pulling her out or giving threats has nothing to do with the feminity and consequently it has nothing to do with the modesty of the woman. These are the common offences vis- a-vis a female or a male. This is altogether different category. In my opinion, therefore, the learned Additional Sessions Judge was quite right in coming to the conclusion that the offence under Section 509 of the Indian Penal Code is not made out." (emphasis supplied) 10.5 In the case of S.K.Bhalla vs State, Crl.M.C. No. 2727/2009, decided by the Hon'ble Single Judge of the Delhi High Court on 13.05.2011, the factual matrix on test was that the respondents, neighbours of petitioner demolished the existing structure of their property and raised new construction with two windows at the first floor of the construction, which overlooked the courtyard of the property of the petitioner; that petitioner protested against opening of the windows so, respondent No. 2 converted one of those windows into a ventilator, but the petitioner was not satisfied and insisted on closing of the window as well as the ventilator; that when the respondents refused to oblige, petitioner filed a criminal complaint under Section 509/109 IPC. The Hon'ble Delhi High Court held thus:
"10. On reading of Section 509 IPC, it is apparent that in order to bring an act committed by a person within the purview of Section 509 IPC, the act must have been Cr. Revision No.366/2019 Priya Darshini Arora vs State & Ors. Page 9 of pages 12 10 committed with the intention to insult the modesty of any woman or to intrude upon the privacy of such woman. Thus, intention is the basic ingredient of the offence under Section 509 IPC. Only allegation against the respondents No. 2 to 4 in the complaint as well as charge sheet is that respondents No. 2 to 4 have opened window and a ventilator, overlooking the courtyard of the house of the petitioner at the first floor of his property. There is no allegation whatsoever that the window and the ventilator were opened with the intention to insult the modesty of woman folk of the petitioner's family or to intrude upon their privacy. If a person opens a window or ventilator in his property to ensure light and ventilation, it cannot be said to be an act intending to violate the privacy of woman folk of the neighbour or to insult their modesty. There is no allegation that aforesaid window/ventilator were used by anyone for any oblique purpose. Therefore, in my considered view, the learned M.M. as well as the revisional court has rightly concluded that the essential ingredient of offence under Section 509 IPC i.e. intention to insult the modesty of woman is lacking in this case." (emphasis supplied).
11. Falling back to the present case, the alleged utterances of the recovery agents of the private respondents, quoted above verbatim, establish only that the revisionist was liable to pay some money and in order to coerce her, the alleged recovery agents threatened the revisionist. Of course, quite unfortunately, it is becoming common these days that the financial institutions resort to illegal modes for recovery of outstanding dues, especially when litigation would not be cost effective. And such practices have to be curbed with heavy hand. But the courts while adjudicating must not get swayed, and must decide the lis strictly within the parameters of law. In the present case, the question is as to whether by Cr. Revision No.366/2019 Priya Darshini Arora vs State & Ors. Page 10 of pages 12 11 the utterances, attributed to the alleged recovery agents of the private respondents, modesty of the revisionist was insulted and whether the alleged recovery agents of the private respondents intended to do so. And the answer, in view of the legal position described above has to be in negative.
12. In my judgment, none of the alleged utterances of the recovery agents of the private respondents is even remotely suggestive of sex according to the common notions of mankind so as to make those utterances fall within the mischief of section 509 IPC. The alleged utterances, extending threats had nothing to do with the femineity of the revisionist and consequently the same had nothing to do with her modesty. These threats are the common offences vis-a-vis a female or a male. Even males can be subject to such intimidatory utterances.
13. Further, there is no allegation in the complaint of the revisionist that the threats to pay back the outstanding dues were extended by the recovery agents of the private respondents with the intention to insult the modesty of the revisionist or to intrude upon her privacy. If a person threateningly demands payback of the outstanding dues, it cannot be said to be an act intending to violate the privacy of the lady debtor or to insult her modesty.
14. That being so, I am of the considered view that there are no sufficient grounds to proceed against the private respondents for offence under Section 509 IPC and there is no infirmity in the view taken by the learned magistrate that no cognizable offence is made out in the complaint of the revisionist.
15. I am unable to find any illegality, incorrectness or impropriety in the impugned order, so the same is upheld. Consequently, the revision petition is Cr. Revision No.366/2019 Priya Darshini Arora vs State & Ors. Page 11 of pages 12 12 dismissed. Copy of this judgment be sent to the learned trial court along with the trial court record and Revision file be consigned to records.Digitally signed by GIRISH
Announced in the Open Court GIRISH KATHPALIA KATHPALIA on this 27th day of October, 2020 Date: 2020.10.27 18:05:43 +05'30' (GIRISH KATHPALIA) PRINCIPAL DISTRICT & SESIONS JUDGE (HQ) TIS HAZARI COURTS, DELHI Cr. Revision No.366/2019 Priya Darshini Arora vs State & Ors. Page 12 of pages 12