Punjab-Haryana High Court
Hari Mohan Swami And Another vs State Of U.T. Chandigarh & Ors on 10 February, 2011
Crl. Misc. No.M-8243 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-8243 of 2009
Date of Decision: 10.02.2011
Hari Mohan Swami and another
....Petitioners
Versus
State of U.T. Chandigarh & Ors.
...Respondents
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. H.S. Sethi, Advocate
for the petitioners.
Mr. Preetpal, Additional P.P. U.T., Chandigarh
for respondent No.1.
Mr. Surinder Gandhi, Advocate
respondent No.2, in person.
Mr. Rajesh Sethi, Advocate
for respondents No.3 and 4.
*****
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the
Digest ?
**
NIRMALJIT KAUR, J.
This is a petition under Section 482 Cr.P.C read with Article 215 of the Constitution of India for quashing of complaint dated 20.07.2006 pending in the Court of Additional Sessions Judge, Chandigarh.
The facts, in short, are that the petitioner No.1 is an ex-Director-cum-Principal of Government Medical College and Hospital, Sector 32 (here-in-after referred to as `GMCH-32'), Chandigarh and petitioner No.2 is a qualified doctor but otherwise a house wife. One Vinod Kumar allegedly a Mali in GMCH-32, Sector 32, Chandigarh is stated to be an employee of the contractor who supplied manpower to the institute. The said Mali is supposedly being paid salary through the said Crl. Misc. No.M-8243 of 2009 2 Contractor. The said Vinod Kumar filed a complaint on 20.07.2006 against petitioner No.1 and his wife i.e petitioner No.2. In pursuance to the said complaint, the petitioners were summoned vide order dated 12.04.2008 passed by the Judicial Magistrate Ist Class, Chandigarh and the case was committed to the Special Court under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (here-in-after referred to as `the Act').
Aggrieved, the petitioners have filed the present petition under Section 482 Cr.P.C praying for quashing of the complaint inter-alia by raising following arguments :-
(1) Firstly, the complaint, in question, is mala fide and filed with dishonest intention to harass and humiliate petitioner No.1 and his family. The said Vinod Kumar is only a tool in the hands of Smt. Madhu Puri and her husband-Shri Surinder Gandhi who is practicing lawyer.
This is evident from the fact that ;
(a) Madhu Puri was the nurse in her parent department and was repatriated against her desire/wish to her parent department in July 2005. Since the same was on the directions of Director Principal-petitioner No.1, she was inimical towards him. Madhu Puri had also filed an application against petitioner No.1 and impleaded him as respondent No.4 in the Original Application No.319-CH of 2005 filed by her in the Central Administrative Tribunal, wherein, serious allegations were levelled against petitioner No.1 demanding initiation of disciplinary proceedings against him.
(b) She was being represented by her husband- Crl. Misc. No.M-8243 of 2009 3 Surinder Gandhi who is an advocate.
(c) In fact, a complaint was also filed against her in Police Station, Sector 34, Chandigarh and a complaint was filed against Sh. Surinder Gandhi before the Bar Council. Therefore, both of them bore grudge against the petitioner and his family and therefore they have been entangled in the present litigation at the behest of both of them.
(d) Surinder Gandhi is the lawyer of Vinod Kumar.
(e) Applications under the Right to Information Act, 2005 were also filed through their son-Varun Gandhi. The petitioner No.1 being the Appellate Authority under Right to Information Act, had directed Varun Gandhi s/o Shri Surinder Gandhi to appear before him. However, Shri Surinder Gandhi appeared on behalf of his son and entered into war of words with petitioner No.1 and made all kinds of allegations. The petitioner submitted complaints against Surinder Gandhi to Home Secretary, Chandigarh and to Central Chief Information Commissioner and the present complaint has been filed by the said Vinod Kumar and Mr. Surinder Gandhi is his counsel.
(f) It is stated that Vinod Kumar is not an employee of GMCH-32, Sector 32, Chandigarh and is neither under the control/administration of GMCH-32 authorities but is an employee of the Contractor who supplies manpower to the institute. The Contractor pays him the salary and not the GMCH-32.
(g) Vinod Kumar, Mali cannot afford the litigation which Crl. Misc. No.M-8243 of 2009 4 is an expensive proportion. It was, therefore, contended that all the litigation between the petitioner and Ms. Madhu Puri prove the fact that the complaint has been indirectly preferred by Mrs. Madhu Puri and her husband Surinder Gandi, who have extended support to Vinod Kumar with an objective to harass and humiliate the petitioners and such, the same is out of vengeance and is, therefore, nothing but malicious.
2. Secondly, no offence under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out against the petitioners, in as much as,
(a) The petitioners were not aware of the fact that respondent belonged to Scheduled Caste and Scheduled Tribes and they had no knowledge of the complainant's caste, especially when, he is stated to be a "Mali."
(b) Reading of Section 3(1) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 clearly shows that to attract provisions of Section 3(1), the alleged offence must be committed in public place or in public view. There is no such averment that the said occurrence was in a public place or in public view. Thus, no offence is made out. Learned counsel for the petitioners also contended that the petitioners were granted bail on account of the fact that no offence was made out against them.
3. The third argument raised by learned counsel for the petitioners is that the entire story is highly improbable and is rather causing aspersion on the character of petitioner No.2 and highly objectionable.
4. Lastly, the complaint has been filed after nine months of the alleged occurrence i.e on 20.07.2006, whereas, the Crl. Misc. No.M-8243 of 2009 5 alleged occurrence took place on 26 and 27.10.2005.
5. Finally, it was submitted that there is no allegation against petitioner No.1.
Learned counsel for the respondent, on the other hand, submitted that the present petition was not maintainable as the petitioners had not challenged the summoning order. The said summoning order dated 12.04.2008 passed by the Judicial Magistrate Ist Class, Chandigarh has not been attached with the present petition. Learned counsel appearing on behalf of respondents No.3 and 4 stated that the respondents have been unnecessarily dragged in the litigation. The respondent No.4 has only discharged his professional duties. The respondent No.4 has conducted a number of cases against the GMCH administration and the Chandigarh Administration. As such, no mala fide can be attached just because he has appeared as counsel for Vinod Kumar.
It is further contended by the learned counsel for the respondent that an offence under Section 3(1)(i) of the Act, as in the present case, does not require that the same should be in a public place or in a public view. Further, the father of the complainant was present at the time and as such, the same was in the public view. Besides, few facts have been mentioned by respondents No.3 and 4 in order to substantiate his argument that the petitioner No.1 during his tenure as Director Principal has committed and caused to be committed countless illegalities and procedural irregularities amounting to serious offences.
Learned counsel for the parties were heard at length. Although, the complaint has been filed by one Vinod Kumar, Madhu Puri and her husband-Mr. Surinder Gandhi have been made as respondents in the present petition. Various unpleasant allegations have been levelled by the parties against each other. In order to adjudicate upon the present petition, basically three issues arise before this Court ; Crl. Misc. No.M-8243 of 2009 6
(i) Whether any offence is made out under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 or not.
(ii) Whether the allegations in the complaint are absurd and highly improbable.
(iii) Whether the said complaint is mala fide and an outcome of malice or not.
For the purpose of deciding first issue, it would be necessary to refer to the allegations in the complaint. The relevant paras 5 and 6 of the said complaint read as under :-
" 5. That on 26.10.2005, when I came for work, the Cat had shit in the verandah of the house but Ms. Madhu Swami asked the applicant that how cat has, to which the applicant replied that he does not know as he has had just arrived. But Ms. Madhu Swami asked the applicant to eat that shit of the cat. The applicant refused to do so but the applicant pick it and threw it out. She also started abusing the applicant and warned because the applicant has not obeyed her she will get the applicant dismissed from service. The applicant told the whole matter to Dr. Hari Mohan Swami but Dr. Hari Mohan Swami asked the applicant to obey the order of the madam and made me run away from there.
6. That on 07.10.2005, the applicant came with his father to the house of Ms. Madhu Swami and the father of the applicant requested her to pardon the applicant being child. But she told that the applicant can be pardoned only if he urinate before her and drink the same. In the meantime, Dr. Hari Mohan Swami arrived and warned that if applicant wants to serve in the Medical College then he must obey the order of the Madam. The applicant refused to drink the urine. Becoming furious on this, Ms. Madhu Swami abused calling `Chamaroo, Churoo, Kuttoo' run away from here and also threatened that she will not allow me to remain Crl. Misc. No.M-8243 of 2009 7 in Medical College."
A perusal of the complaint shows that the same is divided in two different incidents on two different dates. The said allegation falls under Section 3(1)(i) and 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The offence under Section 3(1)
(i) of the Act reads as under :-
"3(1)(i) Punishments for offences of atrocities Force a member of a Scheduled Caste or a Scheduled Tribes to drink or eat any inedible or obnoxious substance;"
Even if, the above allegation is accepted as true, it is evident that there was no force used by Madhu Swami. In fact, the complainant- respondent did not do what is stated to have been directed by Madhu Swami. As such, for the action to fall under Section 3(1)(i) of the Act, in my opinion, the following ingredients should be satisfied ;
(i) Force should have been used.
(ii) The person actually drank or ate the said
obnoxious substance.
From the above allegation, neither any force was used nor the complainant ate or drank the said substance. As such 3(1)(i) is not made out.
Now coming to Section 3(1)(x) of the Act, the same reads as under :-
"3(1)(x) Punishments for offences of atrocities.
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;"
One of the ingredients to make out an offence under Section 3 of the Act is that the same should be in a public view.
This Court, in the case of Kuldip Raj Mahajan vs. Hukam Crl. Misc. No.M-8243 of 2009 8 Chand reported as 2008(1) R.C.R. (Criminal) 370 held that since the incident happened in Bank premises when no public person was present, it cannot be said that the same was at a place within public view and observed in para 12 as under :-
"12. As regards offence under Section 3 of the Act, it was contended that alleged incident on 9.9.1999 took place at 4.45 p.m., when bank customers were not there. It has not been even alleged in the impugned complaint that any public person, except the three bank employees cited as witnesses, was present at the time of alleged occurrence. It was accordingly contended that the alleged occurrence had not happened in any place within public view which is mandatory requirement of offence under Section 3(1)
(x) of the Act. Reliance in support of this contention has been placed on judgment in the case of J.
Sumana v. Endluri Aseerwadamma and another, reported as 2003(2) RCR(Criminal) 503 (A.P.), wherein it was held that no offence under Section 3(1)
(x) of the Act was made out when the accused abused a member of Scheduled Caste in his office, as the offence was not committed at public place. There is considerable force in the argument. In the instant case, the occurrence took place inside the bank office when public persons were not present. Consequently, the incident cannot be said to have occurred at a place within public view. Accordingly, offence under Section 3(1)(x) of the Act is not made out."
Similarly, in the case of Swaran Singh vs. State through Standing Counsel reported as 2008(4) RCR (Criminal) 74, Hon'ble the Apex Court clearly distinguished the expression `public place' viz-a-viz expression used in the Act `in any place within public view' and came to the conclusion that the appellant Swaran Singh did not use offensive words in the public view. Paras 27 and 28 of the judgment reads thus ;
"27. Learned counsel then contended that the Crl. Misc. No.M-8243 of 2009 9 alleged act was not committed in a public place and hence does not come within the purview of section 3 (1)(x) of the Act. In this connection it may be noted that the aforesaid provision does not use the expression `public place', but instead the expression used is `in any place within public view'. In our opinion there is a clear distinction between the two expressions.
28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by appellants 2 and 3 (by calling him a `Chamar') when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression `place within public view' with the expression `public place'. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies."
The incident is stated to have taken place in house, which in the present case was admittedly not a public place. It is also not in public view as the only person who was present, is the father of Vinod Kumar. Crl. Misc. No.M-8243 of 2009 10 The father, under no circumstances, can be said to be a public person and not a spectator as would be the interpretation of the word "public."
Thus, the above allegation, as alleged, do not make out an offence under Section 3 of the Act.
Moreover, a bare reading of the complaint shows that improbable story has been propounded causing uncharitable aspersions which read thus :-
"She told the applicant can be pardoned if he urinate before her and drunk the same. In the meantime, Dr. Hari Mohan Swami arrived and warned, if he wants to serve in Medical College, then he must obey the order of Madam."
The same is highly improbable. No woman, in her senses will direct a man to urinate in front of her. It is further highly improbable that her husband would come to support his wife and direct such a person to obey the order of his wife. Moreover, the allegation that the petitioner asked the respondent to eat shit, also does not appeal to the aesthetic sense of any prudent person. The allegation, besides being improbable, are absurd on the face of it. Hon'ble the Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others while warning and directing the Courts to exercise power under Section 482 Cr.P.C sparingly and with circumspection and that too in the rarest of rare cases, laid down a list of such cases, where the Court can exercise its inherent jurisdiction for quashing of the FIR which are as under :-
(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an Crl. Misc. No.M-8243 of 2009 11 investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
The case, in hand, squarely falls under No.5 of the said list i.e. where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. The FIR, therefore, deserves to be quashed on this Crl. Misc. No.M-8243 of 2009 12 ground alone.
The story becomes more difficult to believe as the incident occurred on 26/27.10.2005, whereas, the complaint was filed on 20.07.2006 i.e after nine months of the alleged occurrence. Learned counsel for the respondent, however, tried to justify the delay by saying that the complainant had approached the police before filing the complaint and has placed on record a photocopy of the complaint addressed by the complainant-Vinod Kumar to the Advisor, U.T., Adminsitration, The Home Secretary-cum-Medical Education and Research, U.T. Chandigarh, District Magistrate, Chandigarh and S.S.P., Chandigarh. However, the said complaint is also dated 03.01.2006 i.e two months after the incident. Obviously, the present complaint is drafted after due consultation and at leisure and the allegation and the incident, if at all, has been exaggerated out of proportion to enrope the present petitioners under Section 3 of the Act by hook or crook. As such, it is highly unbelievable.
The Single Bench of Calcutta High Court in the case of Somesh Das vs. State of Chhattisgarh reported as 2004(2) RCR (Criminal) 801 after taking into consideration the 14 days of delay held that the delay in lodging the complaint in itself creates doubt about the genuineness of the complaint. Para 11 of the same reads as under :-
"11. It is also admitted position, that as per the complaint of complainant Kalicharan the alleged offence was committed by the applicant on 27.04.2003, whereas the complaint was lodged on 11.05.2003 i.e about 14 days after the incident and in the complaint itself it has been written that it is delayed because some compromise talks were going on and moreover, as per the complaint, the allegations against the present accused/applicant are that when he reached at the site Kalicharan greeted him. Accused Somesh Das said that you do not deserve `Namaskar'. Madarchod Bhosadiwale Gond Crl. Misc. No.M-8243 of 2009 13 Adivasi, how are you creating hurdles in their activities, you will be murdered. This complaint was lodged after consultation and after 14 days of the incident. This fact itself creates doubt about the genuineness of the complaint."
In the present case, the delay is almost of nine months. Thus, the fact that the said complaint is a result of planning, consultation, leading to obnoxiously exaggerated unbelievable and improbable allegations and made with some ulterior motive is writ large on the face of it.
In view of the above discussion, it is apparent that besides the fact that no offence under Section 3 of the Act is made out, the allegations are highly absurd and improbable on the face of it and moreover, they filed after nine months of the incident making the story hard to believe. Hence, it is a fit case where inherent jurisdiction under Section 482 of the Cr.P.C should be exercised to quash the complaint being a misuse of the process of law.
Since this Court is quashing the present complaint on the first two issues, there is no need to go into the third issue i.e. whether the said complaint is an outcome of malice or not and hence, no opinion is being expressed on the same.
Accordingly, the present petition is allowed and complaint dated 20.07.2006 pending in the Court of Additional Sessions Judge, Chandigarh, as well as, all other proceeding arising out of the same are, hereby, quashed.
(NIRMALJIT KAUR) 10.02.2011 JUDGE gurpreet