Ajay Awasthi Alias Ajay Kumar ... vs State Of U.P. And Another
2023 Latest Caselaw 22467 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:167698
 
Reserved
 
Court No. - 79
 
Case :- APPLICATION U/S 482 No. - 33795 of 2018
 
Applicant :- Ajay Awasthi Alias Ajay Kumar Awasthi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Sudhir Kumar (Chandraul), ,Vimlendu Tripathi
 
Counsel for Opposite Party :- G.A.,Monika Arya,Nitin Chandra Mishra
 
Hon'ble Vipin Chandra Dixit,J.

1. The present application under Section 482 Cr.P.C. has been filed by the applicant for quashing of entire proceedings of Case No.27720 of 2017 (State Vs. Ajay Awasthi) as well as for quashing the charge-sheet dated 15.5.2017 and order of cognizance dated 31.5.2017 passed by learned Additional Chief Metropolitan Magistrate-VIII, District Kanpur Nagar, arising out of Case Crime No.53 of 2016, under Section 509 I.P.C., P.S. Harbansh Mohal, District Kanpur Nagar.

2. Heard Sri Vimlendu Triptahi, learned counsel for the applicant, learned A.G.A. for the State, Ms. Bina Gaur, opposite party no. 2 in person and perused the record.

3. Brief facts of the case is that the opposite party no.2 had joined the company namely PNB Met Life in the year 2009 on the post of Assistant Sales Manager at Kanpur. The applicant was posted as Branch Manager of PNB Metlife Insurance Company Limited, Mal Road, Kanpur Nagar in November, 2011 and worked as Branch Manager of aforesaid branch of company upto 2014. The opposite party no.2 was under subordination of applicant during the aforesaid period. The opposite party no.2 applied for transfer and was transferred on 1.3.2014 from Kanpur to Lucknow. The opposite party no.2 had resigned from the company on 31.10.2015 and after resignation she had made a complaint to National Commission for Women against the applicant and three other officers of the company on 8.12.2015 to the effect that a false e-mail was sent by the applicant and other officers to defame her. The complaint was sent to the local police to get enquired the same which was enquired by Inspector, In-charge, Crime Branch, Kanpur Nagar, who concluded the enquiry and submitted his report on 30.3.2016 to the effect that opposite party no.2 was not promoted on account of her poor performance and she was apprehended about her demotion and it was also found that e-mail was sent by one Pankaj Sharma and contents of e-mail do not disclose any offence against the applicant and suggested in his report to register a criminal case against Pankaj Sharma under Section 509 I.P.C. In spite of enquiry report the F.I.R. was not lodged against Pankaj Sharma but was lodged on 14.04.2016 against the applicant and other three officers of the company as Case Crime No.0053 of 2016, under Section 509 I.P.C. in Police Station Harbansh Mohal, Kanpur Nagar.

4. After registration of F.I.R. the matter was investigated by Sub Inspector Suhail Akhtar, who after due investigation did not find any material against the applicant and other accused persons and prepared a final report on 8.7.2016 vide Parcha No.8. The Circle Officer instead of sending the final report to the court, passed the order on 22.7.2016 for further investigation. The subsequent Investigating Officer Sri Deepak Saxena also conducted the investigation and in spite of best efforts by the I.O. the opposite party no.2 was not agree for recording her statement under Section 164 Cr.P.C. rather she has stated that she does not want to prosecute the accused persons as the matter has already been settled through compromise but copy of compromise was not provided by opposite party no.2 to the I.O. The subsequent I.O. closed the investigation by endorsing the earlier final report dated 12.9.2016.

5. The Circle Officer again passed the order on 30.9.2016 entrusting the investigation to another Investigating Officer Jaswant Singh. The statement of opposite party no.2 under Section 164 Cr.P.C. was recorded. The statement of applicant and other accused persons were also recorded and confidential report of complaints committee of the PNB Met Life was also provided to Investigating Officer, which concludes that allegations of sexual harassment are unsubstantiated. The Investigating Officer sought legal opinion and the Joint Director (Prosecution), Kanpur Nagar vide legal opinion dated 12.12.2016 opined that no offence under Section 509 I.P.C. is made out against the applicant rather the offence under Section 509 I.P.C. is made out against Pankaj Sharma. The Circle Officer again transferred the investigation to one Sri S.K. Singh, In-charge Inspector of concerned Police Station. In 4th round of investigation the present Investigating Officer submitted the charge-sheet only against the applicant under Section 509 I.P.C. and other co-accused persons were exhonerated. Learned Magistrate had summoned the applicant vide order dated 31.5.2017.

6. It is submitted by learned counsel for applicant that the opposite party no.2 was working under the subordination of the applicant. The work of opposite party no.2 was not upto the mark and her performance was not in accordance with the norms of the company and on several occasions she was asked to improve her performance. The overall performance of opposite party no.2 was only 27% and as such she could not be promoted. The F.I.R. was lodged on altogether incorrect facts only to harass the applicant. The opposite party no.2 was working under the supervision of applicant, who was the then Branch Manager of the company and had warned the opposite party no.2 on so many occasions to improve her performance but no heed was paid. The opposite party no.2 was not promoted on account of her poor performance, on account of which she was annoyed with the applicant.

7. It is further submitted that the contents of F.I.R. and all the statements of opposite party no.2 under sections 161 and 164 of Cr.P.C. recorded during several rounds of investigation do not disclose any date of the incident; however, the confidential report of the complaint's committee mentions the incidents that occurred in the year 2011, whereas the F.I.R. was lodged on 14.4.2016 after more than 4 years and as such the prosecution itself is barred by limitation in view of Section 468 of Cr.P.C. For ready reference Section 468 is reproduced herein below:-

"468. Bar to taking cognizance after lapse of the period of limitation.

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment."]

8. It is further submitted that section 468 Cr.P.C. provides limitation for taking cognizance of the offence. Since the F.I.R. has been lodged under Section 509 I.P.C. for which the maximum punishment is provided as simple imprisonment of three years and fine, which was amended w.e.f. 03.02.2013 vide Act No.13 of 2013 and prior to which the maximum punishment was provided as simple imprisonment of one year and as such in view of Section 468(2)(c) Cr.P.C. the maximum limitation is of 1 year only but in the present case the F.I.R. itself has been lodged after more than 4 years and as such the prosecution is barred by limitation and learned Magistrate had failed to consider the provisions of Section 468 Cr.P.C. by summoning the applicant in the present case.

9. It is further submitted by learned counsel for the applicant that in the F.I.R. date, time and place of alleged incident have not been mentioned whereas Section 212 Cr.P.C. provides that charge shall contain such particulars as to the time and place of alleged offence but in the present case neither the date and time of alleged incident have been mentioned neither the place of incident is mentioned. Section 212 Cr.P.C. is reproduced herein below:-

"212. Particulars as to time, place and person.

(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219;

Provided that the time included between the first and last of such dates shall not exceed one year."

In the present case since the opposite party no.2/complainant has not disclosed the place of incident as well as the date and time of alleged incident, the Court cannot frame the charge against the applicant and it is an abuse of process of Court. Moreover, the allegations as find place in the F.I.R. and statements of opposite party no.2 recorded during investigation and the emails appended with counter affidavit of opposite party no.2 clearly reflect that the grievance of a service dispute for not getting the promotion was twisted into malicious prosecution by concocting the facts.

10. Lastly it is submitted that the matter was investigated thrice and all the Investigating Officers had submitted final report to the effect that no offence against the applicant is made out. The legal opinion was also sought from the Joint Director (Prosecution), who also submitted that from the evidence and materials which were collected during the investigation, no offence against the present applicant is made out rather the offence under Section 509 I.P.C. is made out against one Pankaj Sharma. The Circle Officer in spite of final report submitted by the Investigating Officer thrice, again directed for reinvestigation and in 4th round of investigation, the Investigating Officer wrongly submitted the charge-sheet against the applicant. The Investigating Officer while submitting the charge-sheet did not collect any new material or evidence against the applicant and on the basis of investigation conducted by his predecessors, the charge-sheet was submitted and learned Magistrate without considering the entire evidence and materials which are available on record, summoned the applicant. Learned Magistrate also failed to consider that the House Committee of the Insurance Company had also enquired the complaint of opposite party no.2 and after recording the statements of other staffs (male and female) had come to the conclusion that no offence of sexual harassment is made out against the applicant and being Branch Manager he asked the opposite party no.2 to improve her performance and given show cause notices to opposite party no.2. Learned Magistrate also failed to consider while taking the cognizance and summoning the applicant, that the matter was investigated thrice and the Investigating Officers have not found any evidence or material against the applicant and on the basis of same material the present charge-sheet has been filed by subsequent Investigating Officer. Learned Magistrate also failed to consider that the incident was alleged to be occurred without any date and time whereas the applicant was posted as Branch Manager of the said branch in the month of November, 2011 and more so the F.I.R. was lodged in the year 2016 after several years and there is no explanation by the opposite party no.2. The opposite party no.2 was already transferred from Kanpur to Lucknow on 1.3.2014 and she resigned from service on 31.10.2015 whereas the F.I.R. has been lodged against the applicant on 14.4.2016 by the opposite party no.2 after resigning from service of Insurance Company. The performance of the opposite party no.2 was not up to the mark as per terms and conditions of Insurance Company and her performance is very poor only up to 27% and as such she was denied for promotions and only for this reason, the first information report was lodged on false allegations. Even during pendency of present criminal misc. application, the opposite party no.2 again moved an application for further investigation, whereupon vide order dated 05.03.2019 passed by the S.S.P., Kanpur Nagar, the further investigation about the I.P. address for the alleged email dated 19.12.2014 as well as about the allegations of opposite party no.2 was conducted, which has also been completed on 27.01.2020 vide parcha no.SCD-54, dated 24.01.2020 and the communication of S.P. (Crime), Kanpur Nagar dated 27.01.2020. Its conclusion is the same as in the earlier final reports mentioning that the opposite party no.2, annoyed for not getting promoted, had lodged the criminal case, wherein evidence in support of her allegations has not been found and no offence is made out. Moreover, the applicant also left the PNB Met Life India Insurance Company in the year 2016 and joined Future Generali India Life Insurance Company Ltd. on 01.12.2016 and is currently working as Zonal Head in that company. The counsel for the applicant has relied upon the case-laws being, Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394, Sarah Mathew vs. Institute of Cardio Vascular Diseases by its Director and others, (2014) 2 SCC 62 on the point of limitation of offence and the case laws being, Har Kishan Sharma vs. State and another, 2018 SCC OnLine Del 11456, Sri Jagdish Krishnaswamy and others vs. Deputy Conservator of Forest Kudremukh Wild Life Division, Karnataka and another, ILR 2013 Kar 2251, Bhagwant Singh and anr. vs. The State of Punjab, 1989 SCC OnLine P & H 520 on the point of section 212 Cr.P.C.

11. On the other hand, answering opposite party Bina Gaur, who appeared in person, has submitted that present application U/s 482 Cr.P.C. has been filed by the applicant on altogether incorrect facts. The applicant was rightly summoned by the learned Magistrate vide its summoning order dated 31.5.2017 and there is no illegality in any manner and the present petition is liable to be dismissed by imposing heavy cost. It is further submitted that the answering opposite party had joined the company known as PNB Met Life in the year 2009 on the post of A.S.M. and the work and performance of the answering opposite party is up to the mark as per terms and norms of the company. The performance of answering opposite party was 118% in the year 2013 which was excellent performance of the year and she became first Chief Business Manager in whole region in July, 2013. The yearly performance of answering opposite party was extraordinary and she was given appraisal by the company in the year 2014. The applicant had joined the company as head of branch in November, 2011 and only for taking advantage of his post, the applicant used to make sexual harassment and exploitation of answering opposite party and also crate pressure to make physical relations. Since the answering opposite party did not accept the offer of applicant, who was the then Branch Manager, the applicant only to harass the answering opposite party has sent her performance incorrectly to the higher authorities. On account of incorrect performance report of opposite party no.2 as 27% the next promotion of the answering opposite party was withheld whereas the performance of answering opposite party since 2009, i.e., at the time of her joining was up-to-date and appreciable. The answering opposite party had joined the company on the post of A.S.M. in the year 2009 and she was promoted in the year 2010 as S.M. and was again promoted in September, 2010 on the post of S.S.M. and was also promoted on the post of S.B.M. in the year 2011. The answering opposite party had also received Met Life Value Achiever Award and qualify A.D.C. for A.G.M. in the year 2012 and she was again promoted in the year 2013 on the post of C.B.M. which itself shows that answering opposite party had performed her duty sincerely and honestly and completed all the targets instructed to her by her company. It is incorrectly stated by the applicant that since the performance of opposite party no.2 was only 27% and she was denied for promotion, the false allegation of sexual harassment was made against the applicant, whereas in fact the performance of answering opposite party was upto the mark.

12. It is further submitted by answering opposite party that Investigating Officers with the collusion of applicant submitted final reports and on the direction of Circle Officer the reinvestigation was again conducted and the final report was submitted under the influence and pressure of applicant who is holding a higher post in the company. The Investigating Officers in collusion of applicant only to provide benefit to the applicant submitted final report again and again but lastly the investigation was conducted in a very fair manner and the charge-sheet has been submitted against the applicant. Learned Magistrate after considering the entire evidence and materials collected by Investigating Officer and after prima-facie satisfaction that offence under Section 509 I.P.C. is made out against the applicant, has summoned the applicant vide order dated 31.5.2017.

13. It is further submitted that answering opposite party was sexually harassed by the applicant and on being harassed by applicant she sought transfer from Kanpur to Lucknow but since the applicant was promoted as Regional Manager of the company and taking advantage of his position, the answering opposite party was also harassed at Lucknow and ultimately she had no option except to resign from post and she resigned the company in the year 2015.

14. Considering the rival submissions of learned counsel for the applicant and opposite party no.2 in person and on perusal of record, it is an admitted fact that opposite party no.2 had joined the PNB Met Life in the 2009 on the post of Assistant Sales Manager and applicant was posted as Branch Manager in the aforesaid company in November, 2011 and opposite party no.2 was under subordination of applicant. The applicant had several times asked the opposite party no.2 to improve her performance as the performance of opposite party no.2 is only 27% which is against the norms of company. The applicant was posted at Kanpur upto 2014 whereas the opposite party no.2 was transferred from Kanpur to Lucknow on 1.3.2014 and after some time she resigned the company on 31.10.2015. The opposite party no.2 did not make any complaint against the applicant during her service period and the complaint was made first time on 8.12.2015 to National Commission for Women against the applicant and three other officers of the company whereas she had already resigned from service on 31.10.2015. The complaint made by opposite party no.2 was sent to local police and the F.I.R. was registered against the applicant and other three officers of the company. The Investigating Officer after due investigation has submitted final report as no offence is made out against the applicant and the matter was again investigated on the direction of Circle Officer and again final report was submitted and the investigation was conducted thrice and all the time the final reports were submitted by the Investigating Officers and in 4th round of investigation the charge-sheet was submitted against the applicant. The Investigating Officer without collecting any new material and on the basis of material and evidence which were collected by the Investigating Officers in earlier rounds of investigations, submitted the present charge-sheet. From bare perusal of F.I.R., it is apparent that the incident is without any specified date, whereas the F.I.R. itself was lodged on 14.4.2016 after several years and also there is no date and time of incident in question in the entire record of the investigation. Since the punishment under Section 509 I.P.C. was only one year before the amendment dated 03.02.2013 and was enhanced upto 3 years, the limitation for lodging the complaint/report is either only one year or 3 years in view of Section 468(2)(c) Cr.P.C. depending upon the date of incident. As the F.I.R. also does not disclose the date, time and place of alleged incident and Section 212 Cr.P.C. provides that charges shall contain such particulars as to the time and place of alleged offence and as such in view of the mandatory provisions of Sections 468 and 212 Cr.P.C., it is not possible to ascertain as to what would be the time period of limitation for taking cognizance of the offence in present matter. Moreover, the only reference to the time period of the alleged incident occurs in the confidential report of the complaint's committee of the PNB Met Life dated 08.04.2016, wherein it is mentioned that 'the ICC noted that the complainant referred to incidents that occurred in 2011'. Section 469 (1) provides for the commencement of the limitation period, wherein sub-section (a) provides the commencement of limitation from the date of offence. Sub-section (b) thereof comes into play when the date of offence is not known to the person aggrieved or any police officer, and sub-section (c) comes into play when the identity of the offender is not known to the person aggrieved or any police officer. In the present matter, the date of offence and identity of the alleged offender are not unknown to the opposite party no.2, and hence, the case in hand is required to be dealt with under section 469 (1) (a) of Cr.P.C.; There is another aspect of the matter that the amendment of section 509 I.P.C. in the year 2013 (w.e.f. 03.02.2013) has enhanced the punishment from one year to three years but when the date of offence is not available, it is incomprehensible to apply the amended provision of section 509 I.P.C. in the present matter. Even otherwise, the amended provision of section 509 I.P.C. also does not aid the opposite party no.2 to get the prosecution continued because the confidential report of the complaint's committee discloses the time-period of the year 2011, as already noted, which is also beyond the period of four years from the date of initiation of prosecution on 14.04.2016. The Constitutional Bench of Supreme Court, in the case of Sarah Mathew vs. Institute of Cardio Vascular Diseases by its Director and others, (2014) 2 SCC 62 upheld the verdict of Japani Sahoo's case (supra) and has held that the relevant date is the date of filing of the complaint or the date of insitution of prosecution to compute the period of limitation under section 468 Cr.P.C. Thus, the date of offence and the date of filing of complaint/institution of prosecution are the two time-stones required to be ascertained for the computation of the period of limitation. In the present matter, the date of institution of prosecution is 14.04.2016, but the date of offence is absent, and the case in hand does not fall under the sub-section (b) and (c) of section 468 (1) of Cr.P.C. and hence, according to the settled law, the present prosecution is barred by limitation.

15. Moreover, the allegations levelled by the opposite party no.2 are not only vague but are also not substantiated even prima facie in view of the materials available in the case diary. The allegations, as found in the F.I.R. and statements of opposite party no.2 recorded under section 161 of Cr.P.C., do not specify which of the words were allegedly uttered by the applicant to insult the modesty of opposite party no.2. It is only in the statement under section 164 of Cr.P.C. recorded on 25.11.2016 that a vague allegation of asking for undue physical favour from opposite party no.2 has been levelled for the first time, which does not contain the date, time and place. The materials collected by the investigating officer during several rounds of investigation negate such allegation, which includes the statements of all the female employees of the company to the effect that they never faced any sort of discrimination, harassment, or indecent behaviour in the company from any of the senior officials including the present applicant and the opposite party no.2 being most aged among female employees of the company was always given due respect even by the senior officials including the present applicant. It has also come on record of the investigation that the husband of opposite party no.2 Saurabh Gaur was also working as an adviser in the company and used to come in the office along with opposite party no.2 and used to remain with her regularly in the office, wherein the opposite party no.2 used to sit in an open cabin and the allegations of opposite party no.2 levelled against the applicant are incorrect. As per investigation papers, the office space of the company is not a small space or a closed room and hence, the specific place of the incident in such office premises was also required to be disclosed necessarily, but this aspect is also absent in the allegations of opposite party no.2. The further investigation conducted vide report dated 27.01.2020 on the application of opposite party no.2, during the pendency of this criminal misc. application, also culminated with the absence of evidence, concluding that no offence is made out against any person. Not only the investigation materials available on record, but the documents appended with the counter affidavit, including a plethora of emails, speak loudly about the real grievance of opposite party no.2, which relates to the denial of promotion to her. Even in her submissions, the opposite party no.2, repeatedly emphasised her performance in the company and incorrect denial of her promotion. The series of events that took place during the service of opposite party no.2 in the PNB Met Life Company demonstrates a harsh reality regarding the sense of disappointment caused to opposite party no.2 due to the appraisal of her performance regarding the career prospect in that private sector company, and she may not have achieved growth according to her perception and expectation. The company's performance appraisal process, to which several senior officials would have participated, may have caused a grievance to the opposite party no.2. Still, such disappointment and grievance of the opposite party no.2 cannot be stretched up to the launch of a prosecution against senior officials of the private sector company, especially when the allegations are prima facie vague and improbable. A gamut of materials is available in the case diary to dislodge such allegations. In a matter like the present one, the absence of date, time and place of the offence makes the provisions of section 212 Cr.P.C. unworkable, which is mandatory to ensure a fair opportunity for the accused to understand the charge of the offence alleged against him and is the foundation of entire prosecution. In the absence of necessary details of the offence, the continuation of criminal proceedings is against the scheme of the criminal justice delivery system. The judgments in Har Kishan Sharma's case (supra), Sri Jagdish Krishnaswamy's case (supra) and Bhagwant Singh's case (supra) are from different High Courts, but these determinations throw sufficient light on the issues involved in the present matter, and this court finds agreement with the views taken in those case-laws.

16. In any view of the matter, the present prosecution against the applicant is an abuse of the process of the Court. Learned Magistrate has passed the order impugned summoning the applicant in the aforesaid case without considering the fact that there is no substantive material to disclose prima facie offence under section 509 I.P.C. and the matter was investigated thrice and that no evidence or material against the applicant was found by the Investigating Officers and final reports were submitted and in the 4th round of investigation without collecting any new material, the charge-sheet has been submitted by the Investigating Officer and that the prosecution is barred by limitation as well as ignoring the fact that the date, time and place of incident has not been disclosed by the complainant/opposite party no.2 and thus, it is an abuse of process of law.

17. In view of above, the application under Section 482 Cr.P.C. is allowed. The summoning and cognizance order dated 31.5.2017 along with entire proceeding of Case No.27720 of 2017 pending in the court of Additional Chief Metropolitan Magistrate-VIII, District Kanpur Nagar, arising out of Case Crime No.53 of 2016, under Section 509 I.P.C., Police Station Harbansh Mohal, District Kanpur Nagar is hereby quashed.

Order Date :-21.08.2023

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