Punjab-Haryana High Court
Amit Gupta vs State Of Haryana And Another on 3 April, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
Crl. Misc. No. M- 5903 of 2013 -1-
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision:3.4.2014
1)Crl. Misc. No. M- 5903 of 2013
Amit Gupta
---Petitioner
Versus
State of Haryana and another
---Respondents
2) Crl. Misc. No. M- 5904 of 2013
Rajesh Mishra ---Petitioner
Versus
State of Haryana and another
---Respondents
3) Crl. Misc. No. M- 21841 of 2013
Suchee Pahwa Nanda
---Petitioner
Versus
Fidelity Business Services India Private Limited and others
---Respondents
4)Crl. Misc. No. M- 21842 of 2013
Suchee Pahwa Nanda
---Petitioner
Versus
Amit Gupta (TIS)and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
***
Present:- Mr.R.S.Rai, Senior Advocate
Saini Paramjit Kaur Mr. Akshay Bhan, Senior Advocate
2014.04.23 13:35
I attest to the accuracy and
integrity of this document
Chandigarh
Crl. Misc. No. M- 5903 of 2013 -2-
with Mr. S.K.Sharma, Advocate
Mr. Suyash Srivastava, Advocate
Mr. Rajiv Anand, Advocate
for the petitioner(s) (in CRM-M- 5903 and 5904 of 2013)
Ms. Loveleen Dhaliwal Singla, Sr. DAG, Haryana
for the respondent-State
Mr. T.S.Sangha, Senior Advocate with
Mr. H.S.Sangha, Advocate
for respondent No. 2 ( CRM-M- 5903 and 5904 of 2013)
for petitioner(s) ( in CRM-M- 21842-21843 of 2013)
***
1. Whether Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
REKHA MITTAL, J.
By way of this order, I shall dispose of CRM-M 5903 of 2013 titled "Amit Gupta vs. State of Haryana and another", CRM-M- 5904 of 2013 titled "Rajesh Mishra vs. State of Haryana and another, CRM- M- 21841 of 2013 titled "Suchee Pahwa Nanda vs. Fidelity Business Services India Private Limited and others" and CRM-M-21842 of 2013 titled "Suchee Pahwa Nanda vs. Amit Gupta (TIS)and others", as these have emerged out of the same proceedings i.e. Criminal Complainant titled "Ms. Suchee Pahwa Nanda vs. Mr. Rajesh Mishra and others", summoning order dated 19.3.2011 and proceedings emanating therefrom. The facts are being taken from CRM-M- 5903 of 2013.
Ms. Suchee Pahwa Nanda, complainant (respondent No. 2 herein) filed the aforesaid complaint for offence punishable under Sections 323, 504, 354, 506, 212 read with Section 34 of the Indian Penal Code (for short "IPC"). The complainant joined the company namely Fidelity Saini Paramjit Kaur 2014.04.23 13:35 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M- 5903 of 2013 -3- Investments Private Limited in March 2003. As per allegations, on 3.11.2009, the complainant was called by Mr. Rajesh Mishra (Head H.R.) in his cabin at 5.30 p.m. when almost all the employees had left the office. She was told by him to resign immediately. The complainant wanted to know the reason for this and refused to resign. When she wanted to leave the cabin of Mr. Rajesh Mishra, he caught her from neck and called Mr. Amit Gupta, (H.R.) to come in the cabin and blocked the exit door. They threatened the complainant with dire consequences to terminate her job, finish her career and tarnish her reputation. She was not allowed to leave the cabin or communicate with anyone. She was manhandled by both of them and she was caught her by the neck by Mr. Rajesh Mishra while Mr. Amit Gupta was holding her by her shoulders across her chest with full force hurting and molesting her faminehood and they outraged her modesty. On seeing gravity of the situation, she wrote two lines resignation to save herself fearing of insult and humiliation from them. She noted the date on the resignation as 4.11.2009 but Mr. Mishra got the date changed to 3.11.2009 by cutting 4.11.2009.
On 4.11.2009, she went to the office to report to the country head Mr. Pat Shea but she was not allowed to enter the office. The complainant gave many complaints to the company's senior office bearers, the Station House Officer of the concerned police station and senior police officers but no action has been taken. She was persuaded to enter into a compromise with the company but she refused. Mr. Alok Mittal, Joint Commissioner was appointed as an enquiry officer, who further appointed some inspector to conduct the enquiry. The enquiry officer conducted a very long, unilateral and arbitral enquiry without calling the complainant Saini Paramjit Kaur 2014.04.23 13:35 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M- 5903 of 2013 -4- and the accused together.
After recording evidence during preliminary enquiry consisting of statement of the complainant and the documents exhibited on record, the Additional Chief Judicial Magistrate, Gurgaon, issued process for summoning the accused for offence punishable under Sections 323, 504, 354, 506 read with Section 34 IPC, vide order passed on 19.3.2011. The summoning order became subject matter of revision petition preferred before the Court of Sessions but it was dismissed by the Additional Sessions Judge, Gurgaon on 1.2.2013.
Counsel for the petitioner contends that the complainant initiated criminal proceedings as a measure of vendetta as she was asked to resign from the company due to her poor performance and reports received from the customers of the company. It is further submitted that the complainant added many additional facts in the complaint filed before the Court viz-a-viz her allegations in the complaint made to the police with a view to make the net wider and gain sympathy of the Court. It is argued with vehemence that a detailed enquiry to examine allegations levelled by the complainant was conducted by Sh. Dinesh Kumar, Assistant Sub Inspector, Economic Offences Wing, Palam Vihar Gurgaon, the enquiry officer inspected the alleged place of occurrence, examined a number of persons, heard the complainant and the accused and recorded its conclusions that the allegations levelled by the complainant are unfounded and false and no such occurrence took place as alleged. It is further argued that preliminary enquiry conducted by the Assistant Sub Inspector was examined by the Joint Commissioner of Police, Gurgaon, who himself heard the parties and concurred with the findings of the enquiry officer, in view of Saini Paramjit Kaur 2014.04.23 13:35 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M- 5903 of 2013 -5- report dated 5.5.2010 (Annexure P-13). Sh. R.S.Rai, Senior Advocate has submitted that the learned trial court did not advert to the said enquiry report much less assigning any reason to differ with the findings of the enquiring authority while passing the summoning order, therefore, the order passed by the Judicial Magistrate summoning the petitioners to face trial is liable to be set aside and the matter may be remitted to the concerned court for re-consideration in view of report dated 5.5.2010. In support of his contention, he has relied upon the judgments passed by this Court in Kuldip Raj Mahajan vs. Hukam Chand 2008(1)RCR(Criminal)370 and Harbans Singh and another vs. Vidya Devi (CRM-M- 6624 of 2012 decided on 16.7.2013).
Counsel for respondent No. 2, Sh. T.S.Sangha, Senior Advocate while refuting the contentions of counsel for the petitioner has submitted that any preliminary enquiry conducted by an Assistant Sub Inspector, in no circumstances, can be given primacy to the evidence recorded during preliminary enquiry by a court of law. It is further submitted that the persons examined during preliminary enquiry being the employees of the company have every reason to support the cause of the accused, working in the said company at some superior position. It is further submitted that the complainant fairly disclosed to the Court in regard to her having approached the police and conducting of preliminary enquiry. It is further argued that allegations set up by the complainant give rise to disputed questions of fact not amenable to adjudication in proceedings under Section 482 of the Code of Criminal Procedure and require the parties to lead evidence for adjudication on merits.
I have heard counsel for the parties and perused the records. Saini Paramjit Kaur 2014.04.23 13:35 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M- 5903 of 2013 -6- Before adverting to the submissions made by counsel for the parties, it is appropriate to recount the legal position with regard to purpose of pre process enquiry conducted by the Magistrate under Section 202 of the Code. The Hon'ble Supreme Court of India in Vadilal Panchel vs. Dattatraya Dulaji Chandigaonkar,(1961) 1 SCR 1, held which may be usefully quoted hereinbelow:-
"The enquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage, for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial."
In another judgment, Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi and others 1976 AIR (SC) 1947, the Hon'ble Supreme Court while referring to its earlier decisions in Chandra Deo Singh vs. Prokash Chnadra Bose (1964) 1 SCR 639 and Vadilal Panchal's case (supra) held in para 4, which reads as follows:-
"It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited- limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint-(i) on the materials placed by the complainant Saini Paramjit Kaur 2014.04.23 13:35 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M- 5903 of 2013 -7- before the Court; (ii) for the limited purpose of finding out whether a prime facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not."
Perusal of the above extract makes it evident that the scope of enquiry under Section 202 of the Code is extremely limited to the ascertainment of the truth or falsehood of the allegations made in the complainant on the basis of materials placed by the complainant before the Court and at this stage, the court has to examine the allegations only from the point of view of the complainant without at all adverting to any defence that the accused may have, to find out whether a prima facie case is made out for issue of process against the accused.
Counsel for the petitioner has laid much stress on the enquiry report submitted by the Assistant Sub Inspector which was later accepted by the Joint Commissioner of Police to contend that the summoning order is liable to be set aside and the matter may be remitted to the trial court for consideration afresh in the light of said enquiry report (Annexure P-13).
Perusal of enquiry report would reveal that the preliminary enquiry was conducted by the Assistant Sub Inspector, Dinesh Kumar and during enquiry, he recorded statements of Rajesh Mishra (H.R. Head) and Amit Gupta H.R.Department (both summoned as accused to face Saini Paramjit Kaur 2014.04.23 13:35 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M- 5903 of 2013 -8- trial) Poonam Saajwan, Shikha Aggarwal, Bharat Kumar Jha, Gurpratap Singh, staffers of the company who submitted their respective signed statements typed in English. It is understandable that the persons summoned as accused and other staffers of the company in which Rajesh Mishra and Amit Gupta enjoy senior positions, they are bound to support the cause of the company as well as Rajesh Mishra and Amit Gupta. If the contention of the petitioner to consider the enquiry report at this stage is accepted, in view of the nature of the said enquiry wherein report is based upon the statements made by the accused and some other officials of the company, it would virtually amount to allowing the accused to put up their defence when otherwise the accused have no right to be heard at the pre process stage. There is nothing on record to suggest that the statement of complainant Suchee Pahwa Nanda was recorded in those enquiry proceedings much less she being associated at the time of examination of other persons. As such, preliminary enquiry conducted by an Assistant Sub Inspector of Police, in no circumstances, can be equated with the cancellation report prepared by the police on the basis of investigation conducted after registration of FIR.
In Kuldip Raj Mahajan's case (supra), this court in view of the facts and circumstances of the said case and the fact that there was long and unexplained delay in reporting the matter to the police, after investigation by gazetted officer, the FIR lodged was found to be false and cancellation report was submitted; the respondent, despite being aware of the cancellation report concealed the same from the learned Magistrate and the impugned summoning order was also passed without considering or even referring to the cancellation report, the court quashed the complaint Saini Paramjit Kaur 2014.04.23 13:35 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M- 5903 of 2013 -9- and summoning order to prevent the abuse of process of court and secure the ends of justice in the case in which the respondent had initiated proceedings under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 506 IPC. In Harbans Singh's case (supra), the court by referring to the judgment in Kuldip Raj Mahajan's case (supra), set aside the summoning order with a direction to the trial Magistrate to pass a fresh order after taking into consideration the cancellation report submitted by the police. Under these circumstances, the petitioner cannot derive any benefit to his contention from the judgments cited by learned counsel because the controversy in those cases is entirely different from the case in hand So far as the merits of the allegations levelled by the complainant, the same are to be decided by the trial court on the basis of evidence to be led by the parties. At this stage, there is no material on record to conclude that a false complaint has been filed by the complainant because she was asked to submit her resignation due to her poor performance or she voluntarily submitted the resignation.
No other point has been raised before the Court.
For the foregoing reasons, the petitions are dismissed. However, nothing stated in this order shall prejudice the adjudication of the matter by the learned trial court.
(Rekha Mittal) Judge 3.4.2014 Paramjit Saini Paramjit Kaur 2014.04.23 13:35 I attest to the accuracy and integrity of this document Chandigarh