Delhi District Court
B. Venkateswara Rao vs State on 30 November, 2017
IN THE COURT OF SH. SANJEEV KUMAR,
ADDITIONAL SESSIONS JUDGE-05, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL REVISION NO.204814/2016
In the matter of:
B. Venkateswara Rao
S/o Sh. Basavalingarn
R/o 185B, Packet B, Mayur Vihar,
Phase-II, Delhi-110091 ........Revisionist
Versus
1. State
Through Public Prosecutor,
District Court Saket, New Delhi
2. Ms. Latha Venkataraman
D/o Late R. Venkataraman,
R/o A-137-B, First Floor, Sector-27,
Noida-201301 (U.P.) ........Respondents
Arguments heard on : 22.04.2017 and 09.11.2017
Pronounced on : 30.11.2017
JUDGMENT
This revision petition has been filed by the accused-revisionist under Section 397 read with Section 399 of the Code of Criminal Procedure, 1973 (in short "Code") against the order dated 12.08.2016 passed by the learned Metropolitan Magistrate-01/Mahila Court, South-East District, Saket Courts, CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.1 of 13 New Delhi in CIS No. 620942/2016 and FIR No. 288/2006, Police Station Lodhi Colony, New Delhi titled as "Latha Venkataraman v. Venkateshwara Rao" whereby cognizance under Section 190(1)(b) of the Code was taken for the offences under Sections 354, 323 & 509 of the Indian Penal Code, 1860 (in short "IPC") and revisionist was summoned.
2. Sh. Vikas Pahwa, learned senior counsel appearing for the revisionist has submitted that revisionist has challenged second summoning order dated 12.08.2016 in the present revision and first summoning order was challenged earlier in the revision and same was set aside and matter was remanded back. The learned Trial Court ought to have considered the police report in order to ascertain the veracity of the allegations made by the complainant. The allegations leveled by the complainant are highly improbable considering the fact that the place where the complainant is alleging the incident, is not a close chamber/room but open area having work stations and the walls separating all the work stations are only 5 feet 6 inches in height.
3. Sh. Vikas Pahwa has further submitted that the learned Trial Court failed to consider the report of the departmental inquiry which exonerated the revisionist from all the charges after a thorough inquiry including the cross examination of the revisionist and the respondent no.2 (complainant). The police has conducted a full fledged investigation and had filed a concellation report under Section 173 of the Code. The present case (FIR) is nothing but an attempt by a junior officer with malafide intention to harass, blackmail her senior/report officer not to take administrative action against her dereliction of duty. The revisionist being a reporting officer of CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.2 of 13 respondent no.2 had after receiving the letter dated 10.06.2005 from NPC had vide his note dated 13.06.2005 asked for an explanation from respondent no.2 of her abnormal conduct and behaviour at the NPC.
4. Sh. Vikas Pahwa has further submitted that allegations were made by the respondent no.2 almost eight months after the revisionist's writing /reporting the illegal conduct of the respondent no.2. The allegations against the revisionist are a counter blast of the respondent no.2 to blackmail the revisionist and IREDA as they have take up departmental action against her for her indiscipline on the instruction of the management and as per rules. The complaint made by the respondent no.2 was examined and investigated by the complaint committee duly constituted to look into the complaints of 'sexual harassment at work place' and found that no such incident has occurred. Criminal proceedings against the revisionist cannot be continued as the revisionist was exonerated in the departmental proceedings.
5. Sh. Vikas Pahwa has further submitted that the allegations of sexual harassment by the respondent no.2 against the revisionist relating to the incident dated 05.08.2005 for the first time were made on 14.03.2006 i.e., almost seven months after the date of incident. There are four employees of IREDA who were eye-witnesses to the events that took place on 05.08.2005 and all of them had given their statements to the management of IREDA stating about the shouting and commotion created by the respondent no.2 in the open chamber of the revisionist in the presence of another employee namely Chanranjit Singh. The respondent no.2 is well known for her erratic behaviour so much so that one Mr. V.K. Ghai, and IT consultant with IREDA from World Bank in his note dated 15.06.2005 has CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.3 of 13 observed so. In report dated 10.06.2005 received from the NPC, it has been stated that the respondent no.2 had threatened her superiors/ officers and other public of filing police case against them and of dire consequences.
6. Sh. Vikas Pahwa has prayed that the impugned order regarding cognizance and summoning of revisionist dated 12.08.2016 may be set aside. He has placed reliance upon judgments namely, Abhinandan Jha v. Dinesh Mishra, 1967(3) SCR 668; HS Bains v. State (1980) 4 SCC 299; Ram Naresh Prasad v. State of Jharkhand, (2009) 3 SCC 1336; Minu Kumari v. State of Bihar, (2006) 4 SCC 359; Dr. Kapil Garg v. State, (2003) 70 DRJ 621; Dr. Narender Nath v. State 2008 (104) DRJ 655; Dr. Rajni Palri Wala v. Dr. D. Mohan, ILR (2009) IV Delhi 760; PS Rajya v. State of Bihar, (1996) 9 SCC 1; Radheshyam Kejriwal v. State, (2011) 3 SCC 581; Suryalakshmi Cotton Mills v. Rajbir Industries, (2008) 13 SCC 678; Punjab National Bank v. Surendra Prasad Sinha, (1993) SUPP (1) SCC 499 and Pepsi Foods v. Special JM, (1998) 5 SCC 749.
7. Sh. Nischal Singh, learned Additional Public Prosecutor for the State/respondent no.1 has opposed the revision petition stating that the learned Trial Court has rightly taken the cognizance of the offences and has summoned the revisionist.
8. Sh. H. K. Chaturvedi, learned counsel appearing for the complainant- respondent no.2 has also opposed the revision petition stating that there was an inquiry conducted as per guidelines of Supreme Court passed in Vishakha's case and same cannot be equated to departmental inquiry. No departmental inquiry against the revisionist was conducted. The revisionist had admitted the incident as same is mentioned in Article-V of the CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.4 of 13 document filed by the revisionist i.e. "Statement of imputation of misconduct in support of article of charges framed against Latha Venkatraman, Executive Secretary (Grade-I) employee no. 0041, under suspension, EREDA". The learned trial court has perused all the records and has taken into consideration the same and has rightly passed the impugned order.
9. The respondent no.2 herein filed complaint against revisionist before the Court of learned Additional Chief Metropolitan Magistrate. Vide order dated 30.05.2006, the learned Additional Chief Metropolitan Magistrate directed Station House Officer, Police Station Lodhi Colony to register a case and get the allegations investigated by a lady police officer.
10. Pursuant to the direction passed by the learned Additional Chief Metropolitan Magistrate, FIR No.288/2006, under Section 186, 353, 354 & 509 IPC was registered on 19.08.2006 at Police Station Lodhi Colony. After conclusion of the investigation, final /cancellation report under Section 173 of the Code was filed concluding that no such incident took place on 05.08.2005 and no cognizable offence has been made out. The respondent no.2 herein filed protest petition. Vide order dated 26.11.2011 passed by the learned Metropolitan Magistrate, the case was treated as complaint case as same was requested by the respondent no.2 herein. Vide order dated 21.10.2014, the learned Metropolitan Magistrate after considering the complaint and statement of complainant examined under Section 200 of the Code, summoned the accused/revisionist for the offence under Section 354 & 509 IPC.
11. Said summoning order dated 21.10.2014 was challenged by the revisionist before the learned Session Court and vide order dated CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.5 of 13 08.04.2016, said order was set aside and matter was remanded back to the Court of learned Metropolitan Magistrate for passing fresh order after hearing submissions of respondent no.2 herein and all the material placed on the record, including the investigation report and the documents submitted along with.
12. Vide impugned order dated 12.08.2016, cognizance under Section 190(1)(b) of the Code was taken for the offence under Section 354, 323 & 509 IPC and revisionist was summoned.
13. The allegations against the revisionist as mentioned in the complainant/FIR are that the respondent no.2 Ms. Latha Venkataraman appointed on 01.03.1994 and still working as Executive Secretary (Grade-I) with Indian Renewable Energy Development Agency Limited (IREDA). The revisionist B. Venkateswara Rao, General Manager (DCCS) is working with IREDA. On 05.08.2005 around 09.45 AM as routine, complainant Latha Venkataraman entered the cabin of the accused B.V. Rao who is her reporting officer. One Chanranjit Singh was present. Accused V.B. Rao immediately directed Chanranjit Singh to go out. Accused directed the complainant to sit at the computer table, which was very closer to him, and he told her to send some urgent e-mails. The complainant bent down to switch on the computer. Then accused put certain filthy remarks uttering word such as "Latha you are a sexy lady and why are you wasting your time" and also made gesture intended to insult the modesty of complainant. The complainant was shocked to listen such words but she tolerated the same because accused was her boss and she had to work with him. She requested accused not to use such filthy remarks. When the complainant CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.6 of 13 was about to start her work at the computer table, the accused came behind to the complainant chair as the complainant was sitting on computer chair and the complainant was to send e-mails. The accused put his both hands on the shoulders of the complainant and using the criminal force he touched her breasts then, she immediately got up saying sir what are you doing. Then he had forcibly and using the criminal force taken her in his arms and started molesting her by putting his hands against her breasts. And in this manner the accused had outraged the modesty of the complainant. Then at the same time the complainant with her both hands tried to be separated and used her physical force against the chest of accused and also upper parts of his body.
14. After conclusion of the investigation, final/cancellation report under Section 173 of the Code was filed before the learned Metropolitan Magistrate. In said report, it is mentioned that incident of 05.08.2005 was infact reported by revisionist to the senior officers of IREDA, in which he had made complaint against the misbehavior/misconduct and using criminal force by the respondent no.2 herein. The committee for prevention of sexual harassment of working woman of work place was constituted for redressal of the complaint of respondent no.2 herein. The said committee found that the incident of dated 05.08.2005 was not occurred and complaint of respondent no.2 herein against revisionist herein was false and after thought.
15. It is also mentioned in the final/cancellation report that eye-witness of incident Chanranjit Singh did not support the allegation made by respondent no.2 herein and completely contradicted the version of CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.7 of 13 respondent no.2 herein. It is also mentioned in said cancellation report that statement of Chanranjit Singh was also corroborated by other witnesses working in IREDA. It was concluded in the said cancellation report that all the evidence, witness examined and circumstantial observation suggested that no such incident took place on 05.08.2005 and therefore, no cognizable offence has been made out.
16. The learned trial court has passed impugned order at the stage of taking cognizance and issuance of summon. Now, question is what are required to be considered at the stage of taking cognizance and issuance of summon. In Bhushan Kumar & Anr. v. State (NCT of Delhi) & Anr. (Criminal Appeal no. 612 of 2012, decided on 04.04.2012), Hon'ble Supreme Court held that at the stage of taking cognizance, the magistrate has to be satisfied whether there is sufficient ground of proceeding and not whether there is sufficient ground for conviction and whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry.
17. Hon'ble three- Judge Bench of the Supreme Court in Sonu Gupta v. Deepak Gupta & Ors. [Criminal Appeal Nos. 285-287 of 2015 decided on 11.02.2015] held that at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or material or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.8 of 13 not undertake the exercise to find out at this stage, whether the materials will lead to conviction or not. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.
18. Hon'ble Supreme Court in Amarullah and Anr. v. State of Bihar and Ors. [Criminal Appeal No. 299 of 2016] held on 12.04.2016 that it is well settled that at the stage of taking cognizance, the court should not get into the merits of the case made out by the police, in the chargesheet filed by them, with a view to calculate the success rate of prosecution in that particular case. At this stage, the court's duty is limited to the extent of finding out whether from the material placed before it, offence alleged therein against the accused is made out or not with a view to proceed further with the case.
19. Learned counsel for revisionist has argued that the complaint made CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.9 of 13 by the respondent no.2 herein was examined and investigated by the complaint committee duly constituted to look into the complainants of "sexual harassment at work place" and found that no such incident has occurred. Learned counsel relying upon P.S. Rajya's case (supra) and Radheyshyam Kejriwal's case (supra) argued that the criminal proceedings cannot be continued if accused has been exonerated in the departmental proceedings. Hon'ble Supreme Court in the case of State v. M. Krishan Mohan, (2007) 14 SCC 667 held that exoneration in the departmental proceeding ipso facto would not lead to the acquittal of the accused in the criminal trial and the decision in P.S. Rajya (supra) was rendered on peculiar facts obtaining therein.
20. This point also fell for consideration before Hon'ble Supreme Court in the case of Supdt. of Police (C.B.I.) v. Deepak Chaudhary, (1995) 6 SCC 225, where quashing was sought on two grounds and one of the grounds urged was that accused having been exonerated of the charge in the departmental proceedings, the proceedings is fit to be quashed, but said submission did not find favour and same was rejected.
21. In State of N.C.T. of Delhi v. Ajay Kumar Tyagi, Criminal Appeal No. 1334 of 2012, Hon'ble three-Judge Bench of Supreme Court has held on 31.08.2012 that exoneration in the departmental proceedings ipso facto would not result into the quashing of the criminal prosecution however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed but that principal did not apply in the case of departmental proceedings as CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.10 of 13 the criminal trial and the departmental proceedings are held by two different entities and they are not in the same hierarchy.
22. Hence, in view of decisions passed by Hon'ble Supreme Court in Ajay Kumar Tyagi (supra), Deepak Chaudhary (supra) and M. Krishan Mohan (supra), the contentions of learned senior counsel for the revisionist that criminal proceedings cannot be continued as accused has been exonerated in departmental proceedings, cannot be accepted.
23. It is well settled that the learned Metropolitan Magistrate is not bound by the conclusion of the investigating agency mentioned in the final report/cancellation report under Section 173 of the Code and it may take cognizance under Section 190 (1) (b) of the Code if he/she deems fit so from the said police report. In this regard, Abhinandan Jha (supra), HS Bains (supra), India Carat (P) Limited v. State of Karanatka, (1989) 2 SCC 132 can be referred.
24. It is clear from the Bhushan Kumar (supra), Sonu Gupta (supra) and Amarullah (supra) that at the stage of taking cognizance, the Magistrate has to be satisfied whether there is sufficient ground of proceeding and not whether there is sufficient ground for conviction, and whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the inquiry. Hence, at the stage of taking cognizance, the Magistrate is required to apply his mind to find out whether prima facie case has been made out for taking the cognizance and summoning the accused.
25. The complainant-respondent no. 2 has clearly made allegations CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.11 of 13 against the accused-revisionist in respect of offences under Sections 354, 323 and 509 IPC.
26. The revisionist had filed complaint having subject "physically Assaulting/Manhandling of senior officials by Ms. Latha V., ES Gr.I (DCCS) reg." wherein following, inter alia, mentioned:
"I was attending to regular office work today i.e. 05.08.2005, at around 9.45 AM when Mr. Charanjit Singh,D.R. (DCCS) happened to be in my cabin to take out the dak and files cleared by me. At that juncture, Ms. Latha V., ES Gr.I (DCCS) stormed into my cabin and started abusing and shouting at me. Some of things that she said are, "what do you think of yourself and I will see your end". Seeing this situation Mr. Charanjit Singh quickly left the cabin and stood outside the cabin.
Before I could even ask her the reasons for the violent verbal outburst, she suddenly started physically assaulting me and hitting me on my chest and upper body. As it is purely unanticipated that a junior colleague and that too a lady can physically assault me without any reason or provocation, I was totally taken aback and shocked into inaction. In order to maintain decency and decorum of office, and since she is being a lady, I have not retaliated and cried for help from others and security, to avoid further the aggravation of the situation. Hearing my plea for help other officials rushed to my cabin. At this stage, she stopped her assault and in a furious manner warned all the people gathered around the cabin threatening dire consequences in case the matter is reported."
27. Hence, the revisionist has stated in abovesaid complaint regarding the incident dated 05.08.2005. But question is whether the version of the CR No.204814/2016 B. Venkateswara Rao v. State & Anr. Page No.12 of 13 revisionist in respect of said incident is correct or the version/ allegations of the complainant-respondent no.2 is correct. In this regard, keeping in view the stage of cognizance, I am agree with the opinion of learned Metropolitan Magistrate that whether the allegations of the complainant is truthful or not will be a subject matter of trial and even conviction can be based on the sole testimony of the prosecutrix if same inspires confidence and further that the statement of victim (complainant) qua the commission of crime is sufficient for proceedings against the accused. Hence, the learned Metropolitan Magistrate has rightly taken the cognizance under Section 190 (1) (b) of the Code of the offences under Section 354, 323 and 509 IPC and summoned the revisionist. Hence, revision is dismissed.
Announced in the open court
on 30.11.2017 (SANJEEV KUMAR)
Additional Sessions Judge-05
South East District, Saket Courts
New Delhi
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