Chattisgarh High Court
Dr. Manish Tiwari vs State Of Chhattisgarh on 1 November, 2021
Page 1 of 20
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 363 of 2018
Reserved on : 19.08.2021
Delivered on : 01.11.2021
Dr. Manish Tiwari, S/o Shri Vijay Kumar Tiwari, Aged About 50 Years,
R/o Village Joki, P.S.- Sakri, District- Bilaspur (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh, through the Secretary Ministry of Home,
Mantralaya, Naya Raipur, District- Raipur (C.G.)
2. The Superintendent of Police, District- Bilaspur (C.G.)
3. Mahila Thana, Bilaspur, through the Station House Officer,
Bilaspur (C.G.)
4. Smt. Rajni Kujur, W/o Shri Tobius Kujur, Aged About 43 Years,
R/o Near Lafagarh Gas Agency, Behind Mahirishi School, Civil
Lines, Bilaspur (C.G.)
---- Respondents
For Petitioner : Mr. B.P. Sharma, Advocate.
For State/Res. 1 to 3 : Mr. Ashish Gupta, Panel Lawyer.
For respondent No. 4 : Mr. Manoj Paranjpe, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. ORDER
1. The petitioner, who is working as an Assistant Professor in D.P.
Vipra College, Bilaspur, has filed present writ petition under
Article 226 of the Constitution of India for quashing FIR No. 0036
dated 25.06.2018 (Annexure P/1) registered against him on the
basis of complaint made by respondent No. 4 at Women Police
Station, Bilaspur (C.G.) for commission of offence punishable
under Section 354 (A) of IPC & Section 3(1)(xii) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (Amended 2015) (for short "the Act, 1989).
2. The brief facts, as projected by the petitioner, are that Police
Station- City Kotwali, District- Bilaspur (C.G.) has submitted final
report against respondent No. 4/complainant along with 33 other
teaching staff of D.P. Vipra College, Bilaspur in connection with
Crime No. 52/2012 registered at Police Station- City Kotwali,
Bilaspur before Judicial Magistrate First Class, Bilaspur in
Criminal Case No. 9555/2014 for committing offence punishable
under Sections 147, 294, 506 of IPC. The allegations in the said
criminal case were that on 08.02.2012, the accused persons
have committed offence of unlawful assembly, used criminal
intimidation and force with object to harass Dr. Pawan Kumar
Tiwari, Ramesh Pratap Singh & present petitioner- Dr. Manish
Tiwari. One of the complainants namely Dr. Pawan Kumar Tiwari
has been assaulted by throwing chair on him with criminal
intimidation committed by them. On the basis of complaint
submitted by the complainant, a criminal case has been
registered wherein, the petitioner has deposed before learned
Judicial Magistrate First Class and the Judicial Magistrate First
Class vide its order dated 22.06.2018 (Annexure P/3) has
convicted the accused persons for committing offence under
Section 294 of IPC imposed fine of Rs. 500/- each and in default
of payment of fine amount to undergo for 20 days simple
imprisonment. The operative part of the order dated 22.06.2018
passed by the Judicial Magistrate First Class, Bilaspur is
extracted below:-
"15- izdj.k esa izkFkhZ rFkk vU; pPNwn'khZ lkf{k;ksa ds }kjk ;g
Li"V dFku fd;k x;k gS fd ?kVuk ds laca/k esa vfHk;qDrx.k
izkpk;Z ds d{k esa ?kqls FksA izkFkhZ ds }kjk vius fyf[kr
vkosnu i= rFkk U;k;ky;hu dFku ds varxZr vfHk;qDrx.k
ds }kjk xanh&xanh xkyh xykSt djuk crk;k x;k gS ftldk
leFkZu pPNwn'khZ lk{kh euh"k frokjh vkSj jes'k izrki flag ds
}kjk fd;k x;k gSA lk{kh euh"k frokjh ds }kjk Hkh ;g
crk;k x;k gS fd vfHk;qDrx.k ?kVuk ds le; v'yhy xkyh
xykSt dj jgs Fks rFkk lk{kh jes'k izrki flag ds }kjk
Hkh ;g crk;k x;k gS fd vfHk;qDrx.k xanh&xanh xkfy;ak ns
jgs Fks ftls lqudj mUgsa vkReXykuh gqbZ Fkh vkSj izkpk;Z dks
nh tk jgh xkfy;ksa ls mUgsa vR;ar ihM+k gqbZA bl izdkj
?kVukLFky Mh-ih- foiz egkfo|ky; tgka ij yksxksa dk
vkuk&tkuk jgrk gS ,slh fLFkfr esa mDr LFkku yksx LFkku
dh Js.kh esa vkrk gS tgak ij vfHk;qDrx.k ds }kjk izkFkhZ dks
v'yhy xkyh fn;k tkuk izkFkhZ vkSj pPNwn'khZ lkf{k;ksa ds
}kjk rFkk vfHk;kstu ds }kjk ;qfDr;qDr lansg ls ijs izekf.kr
fd;k x;k gS fd vfHk;qDrx.k ds }kjk nh tk jgh xkfy;ksa ls
Hkh lquus okys O;fDr;ksa dks {kksHk dkfjr gqvk ,slk Hkh lk{kh
jes'k izrki flag ds U;k;ky;hu dFku ls Li"V gS ftlds
vk/kkj ij vfHk;kstu vfHk;qDrx.k ds fo:) /kkjk 294 Hkk-n-
la- ds varxZr vkjksi ;qfDr;qDr lansg ls ijs izekf.kr djus esa
lQy jgk gSA vr% vfHk;qDrx.k dks ?kVuk fnukad 08-02-12
dks nksigj 2-30 cts ;ks mlds yxHkx Mh-ih- foiz
egkfo|ky; vkj{kh dsUnz flVh dksrokyh fcykliqj N-x- esa
vU; vfHk;qDrx.k ds lkFk izkFkhZ iou frokjh dks v'yhy
xkyh xykSt djus ftlls izkFkhZ rFkk vU; lquus okys dks
{kksHk dkfjr gqvk ds laca/k esa Hkk-n-la- dh /kkjk 294 ds varxZr
nks"kfl) fd;k tkrk gSA
16- fopkj.kh; iz'u Ø-&02 vfHk;qDrx.k dks /kkjk 147] 506
Hkk-na-la- ds vkjksi ls lansg dk ykHk nsrs gq;s nks"keqDr fd;k
tkrk gS rFkk Hkk-na-la- dh /kkjk 294 ds varxZr nks"kfl) fd;k
tkrk gSA vr% vfHk;qDrx.k dks Hkk-na-la- dh /kkjk 294 ds
varxZr 500&[email protected]& :i;s ds vFkZn.M ls nf.Mr fd;k gSA
vFkZn.M dh Hkqxrku dh O;frØe dh n'kk esa 20 fnol dk
lk/kkj.k dkjkokl Hkqxrk;k tk;sA"
3. Learned counsel for the petitioner would submit that being
aggrieved by conviction order dated 22.06.2018 passed by
Judicial Magistrate First Class, Bilaspur, respondent No. 4 has
lodged FIR No. 0036 dated 25.06.2018 (Annexure P/1) against
the petitioner at Women Police Station, Bilaspur for commission
of offence punishable under Section 354 (A) of IPC & Section
3(1)(xii) of the Act, 1989. The contents of the FIR is extracted
below:-
"7- d{k ds ckgj vkdj MkW - euh"k frokjh us eq > s dgk
fd eS M e ;fn vki Nq V ~ V h pkgrh gS rks eq > ls vdsy s eas
vkdj feyas
8- MkW- euh"k frokjh ds }kjk mijksDr okD; ftl vlH;rk ds
lkFk dgk x;k mlls eSa vR;ar viekfur eglwl dh rFkk
eq>s izp.M vkReXykfu gqbZ vius yxHkx Ms< n;kZd dh
izk/;kidh; thoudky esa vkt rd MkW- euh"k frokjh dks
NksM+dj esjs lkFk ,slk cnRehthiw.kZ vlH; O;ogkj fdlh us
ugh fd;k gSA
9- mijksDr ?kVuk ls eekZgr gksdj eSa 'kke dks ?kj xbZ ,oa
vius ifr ls bldk ftdz fd;k lqurs gha mUgksus eq>s <ak<l
ca/kk;k ,oa funsZf'kr fd;k eSa egkfo|ky; izca/kd dks ,sls
vlH; rFkk vlkekftd O;fDr ds d`R;ksa ls rRdky voxr
djkÅa ,oa ;g fo'okl O;Dr fd;k fd egkfo|ky;
izca/kd ,sls vkijkf/kd izo`fRr okys izk/;kid ds fo:) vo';
rRdky dk;Zokgh djsxkA
10- mijksDr funsZ'kkuqlkj eSa fnukad 17-06-2017 dks nksigj
yxHkx 12-00 cts viuh lgdehZ izks- Le`frjkuh izdk'k ds
lkFk izkpk;Z ds uke ls MkW- euh"k frokjh ds fy;s rS;kj fd;k
x;k f'kdk;rh i= ysdj izkpk;Z d{k esa igqaph tgak izHkkjh
MkW- foey dqekj iVsy ds lkFk MkW- euh"k frokjh Hkh mifLFkr
FksA
11- MkW- iVsy us esjk vkosnu i<us ds ckn rRdky mls ysus
ls euk dj fmn;k ,oa ;g le>kb'k nsus ysxs fd ,slh
NksVh&eksVh ckrksa dks lgus dh vknr gesa Mky ysuh pkfg,A
muds bl dFku ij esjs lkFk xbZ izks- Le`frjkuh izdk'k us
viuh izfrfdz;k O;Dr djrs gq, mu ij iz'u nkxk fd D;k
vki pkgrs gSa fd ge vieku lgdj ;gak dke djsa\ bl ij
MkW- foey iVsy pqj gks x;sA
12- MkW- iVsy ds pqi gksus ds ckn MkW- euh"k frokjh us eq>ls
dgk fd eSMe lkWjh eq>s ekQ dj nhft, eq>ls xyrh gks
xbZ gS] eSa Hkfo"; esa ,slk dHkh Hkh ugha d:axk vkSj u gh eSa
vki ls vkxs dHkh Hkh ckr d:axkA
13- eSus iqu% MkW- iVsy dh vksj eq[kkfrc gksdj muls
f'kdk;rh i= dks Lohdkj djrs gq, dk;Zokgh djus dh eakx
dh ftl ij mUgksus eq>s dgk fd lkspdj crkrk gwaA
14- tc eS d{k ls ckgj fudyus yxh rc MkW- foey iVsy
us eq>s dgk fd eSMe vki ml i= dks fMLisp esa ns nhft;s]
rnkuq:i eSus viuk f'kdk;rh i= fnukad 17-6-2017 dks
izkpk;Z dk;kZy; esa tek fd;k ftldh ,d izfr vk;qDr mPp
f'k{kk ,oa v/;{k iz'kklu lfefr dks Hkh fn;k FkkA eq>s iw.kZ
fo'okl Fkk fd egkfo|ky; iz'kklu rRdky esjh f'kdk;r ds
vk/kkj ij oS/kkfud dk;Zokgh djsxhA
15- fnukad 19-6-2017 dks esjs lkFkh izk/;kidksa us eq>s lwfpr
fd;k fd egkfo|ky; ds vU; ofj"B izk/;kidx.kkas us esjs
izdj.k esa rRdky ,Q-vkbZ-vkj- ntZ djkus fo"k;d ,d vkSj
vkosnu izkpk;Z dk;kZy; fHktok;kA
16- vkt fnukad rd izkpk;Z dk;kZy; us MkW- euh"k frokjh ds
fo:) iqfyl Fkkus esa dksbZ f'kdk;r ntZ ugh dhA esjh
loksZPp tkudkjh esa bldk ewy dkj.k jkT; 'kklu ds }kjk
egkfo|ky; dh takp gsrq xfBr mPp Lrjh; takp lfefr ds
izLrqr fjiksVZ ds vuqlkj QthZ izos'kdk.M eas MkW- euh"k frokjh
,oa MkW- foey iVsy dks nks"kh Bgjk;k x;k gS] ftl ij
'kklu ds funsZ'kkuqlkj muds fo:) ,Q-vkbZ-vkj- ntZ djkus
fo"k;d dkj.k ekuuh; N-x- mPp U;k;ky; esa yafcr gSA MkW-
foey dqekj iVsy vkijkf/kd d`R; esa vius lkFk lafyIr MkW-
euh"k frokjh ds laj{k.k iznku djus ds mn~ns'; ls ,d
vkfnoklh efgyk dks viekfur ,oa izrkfM+r djus okys
vkjksih ds fo:) ,Q-vkbZ-vkj- ntZ djkus ls cp jgs gSA
djc) fuosnu gS fd bl lE; lekt esa ,d vkfnoklh
efgyk ds lEeku dks viekfur ,oa f[kyokM+ djus okys
O;fDr MkW- euh"k frokjh] lgk;d izk/;kid Mh-ih-foiz
egkfo|ky;] fcykliqj ds fo:) ;Fkk'kh?kz lacaf/kr Fkkus
dks ,Q-vkbZ-vkj- ntZ dj leqfpr oS/kkfud dk;Zokgh djus
dk funsZ'k nsus dh d`ik djsaA "
4. Learned counsel for the petitioner would further submit that
respondent No. 2 without conducting an enquiry, has registered
FIR against the petitioner, whereas Hon'ble the Supreme Court
has directed all the High Courts for taking steps for protection of
witnesses not only from physical abuse but also from false
accusation. The petitioner has submitted all the facts to Assistant
Superintendent of Police (ASP), Bilaspur and also to Deputy
Superintendent of Police (DSP), Bilaspur vide his letter dated
21.06.2017, a copy of the application was forwarded to Director
General of Police, Inspector General of Police, but the same has
not been taken into consideration.
5. He would further submit that with regard to the complaint made
by respondent No. 4, an enquiry has been conducted by
committee constituted under the Sexual Harassment of Women
at Work Place (Prevention, Prohibition and Redressal) Act, 2013
(for short "the Act, 2013") headed by Dr. Smt. Anju Shukla
(President) with Members- Dr. Smt. Shushma Sharma, Dr. Smt.
Shikha Pahare, Smt. Abha Tiwari, Smt. Toshima Mishra, who
have submitted their report on 11.07.2017 (Annexure P/5) to the
Principal, D.P. Vipra College, Bilaspur. He would further submit
that the alleged incident as reflected from FIR in column No. 3 is
of 16.06.2017 whereas FIR has been lodged on 25.06.2018 i.e.
after three days of the judgment passed by the trial Court
convicting respondent No. 4 & other accused persons under
Section 294 of IPC imposing fine of Rs. 500/- each of them and
after lapse of one year of alleged incident. He would further
submit that no ingredient of offence under Section 354 (A) of IPC
is made out. He would further submit that the offence under the
Act, 1989 is also, prima facie, not established as the commission
of alleged offence has not been committed because of the fact
that respondent No. 4 belongs to Scheduled Caste community,
as such, no offence under Section 3(1)(xii) of the Act, 1989 and
Section 354 (A) of IPC is made out against the petitioner. He
would rely upon the judgment rendered by Hon'ble the Supreme
Court in Dr. Subhash Kashinath Mahajan Vs. The State of
Maharashtra & another1, Haryana Vs. Bhajan Lal2, Rajiv
Thapar Vs. Madan Lal Kapoor3 & Vineet Kumar Vs. State of
Utter Pradesh & others4.
6. On the other hand, learned counsel for the State/ respondent No.
1 to 3 has filed their return, in which, they have stated that after
registration of FIR, statement of respondent No. 4 under Section
164 of the Cr.P.C. has been recorded before the Judicial
Magistrate First Class, wherein, she has narrated the incident
and cognizance has been made out. It has been further
contended that statement of Smt. Rajni Kujur, Smt. Snehlata
Mishra, Smt. Dr. Urja Ranjan Sinha, Smt. Smritirani Prakash &
Mr. Sonal Tiwari have also been recorded. The police after
investigation, lodged the FIR and after due investigation charge-
sheet has been filed against the petitioner before the trial Court,
therefore, there is no illegality or irregularity in the order passed
by the trial Court as well as in registration of FIR against the
petitioner, therefore, the present petition is liable to be
dismissed. In support of his arguments, learned State counsel
would rely upon the judgment passed by Hon'ble the Supreme
Court in M.C. Abraham & another Vs. State of Maharashtra &
others5 and would submit that when the investigation is going
on, the Court should not normally interfere in the investigation.
7. This Court vide its order dated 10.07.2018 directed that no
coercive steps shall be taken against the petitioner till the next
date of hearing which is continued till date, therefore, respondent
No. 4 has filed application on 10.09.2018 for vacating the interim
order passed by this Court on 10.07.2018 mainly contending that
the incident took place on 16.06.2017 and since then respondent
No. 4 has been making all efforts to ensure that an investigation
1 (2018) 6 SCC 454 / Criminal Appeal No. 416 of 2018 (decided on 20.03.2018)
2 1992 Suppl. (1) SCC 335
3 (2013) 3 SCC 330
4 (2017) 13 SCC 369
5 (2003) 2 SCC 649
into commission of offence is being looked into. Respondent No.
4 is a professor in D.P. Vipra College, Bilaspur and if she cannot
perform her duties without fear, it shall be highly unfortunate for
the entire academic faculty. The accused shall gather more
courage and confidence and there shall be a sense of fear in the
mind of the students as well. If the faculty members are unsafe
in such an unhealthy working environment in the college, then
the students are the most vulnerable class existing there. He
would further submit that the complaint made by respondent No.
4 on 20.06.2017 requires thorough investigation by the officer of
rank of Deputy Superintendent of Police and it was only after a
thorough investigation, FIR has been registered. He would
further submit that Respondent No. 4 has made complaint
before Assistant Superintendent of Police (ASP), Bilaspur and
Deputy Superintendent of Police (DSP), Bilaspur on 21.06.2017,
therefore, the FIR has been registered according to the
established procedure of law.
8. Learned counsel for the petitioner would submit that the remarks
made by the petitioner against respondent No. 4 cannot be
termed as sexual coloured remarks as the petitioner has only
said that eS M e ;fn vki Nq V ~ V h pkgrh gS rks eq > ls vdsy s ea s vkdj
feyas it may be have some confidentiality and inference cannot be
drawn that it is sexual coloured remarks. He would further
submit that the factual foundation of the dispute between the
parties, is ongoing criminal proceeding and finally conviction of
respondent No. 4 and other teachers by imposing fine of Rs.
500/- each. He would further submit that the petitioner and
respondent No. 4 are working as Assistant Professors in the
same college in the same capacity, therefore, it cannot be
presumed that the petitioner is in a position to dominate the will
of respondent No. 4, who belongs to Scheduled Caste and
petitioner can use to exploit her sexually to which, she would not
have otherwise agreed. In such circumstances, it cannot be
presumed as sexual coloured remarks, but it can be held to be
counter-blast of the criminal proceeding, therefore, continuation
of the criminal proceeding against the petitioner is nothing but an
abuse of process of law, which is liable to be quashed.
9. Learned counsel for the petitioner has also filed written
submission reiterating the stand taken in the writ petition.
10. Learned counsel for respondent No. 4 has also filed written
submission contending that the petitioner himself has apologized
her, which also establishes the offence. He would further submit
that respondent No. 4 has already submitted complaint before
Superintendent of Police, Police Station- City Kotwali on
20.06.2017 for registration of FIR against the petitioner whereas
the incident took place on 16.06.2017 and she has submitted
representation on 21.06.2017 to Assistant Superintendent of
Police (ASP), Bilaspur and also to Deputy Superintendent of
Police (DSP) for registration of FIR against the
petitioner/accused, but after thorough investigation FIR has been
registered on 25.06.2018 at Police Station- City Kotwali,
Bilaspur, therefore, it cannot be said that the FIR is a counter
blast of order of conviction by the trial Court. There is no delay
and after a long persuasion made hereinabove, FIR has been
registered. He would further submit that the police after
submission of complaint conducted enquiry and then only FIR
has been registered. He would further submit that the statement
made by the petitioner to respondent No. 4 that eS M e ;fn vki
Nq V ~ V h pkgrh gS rks eq > ls vdsy s eas vkdj feyas which made the
complainant/ respondent No. 4 to feel humiliated and caused
grievance, as such, statement felt as an attack to the dignity and
modesty of the complainant. It is the feeling perceived by the
victim that is of the paramount consideration and not what the
accused states. This proposition is validated/ substantiated by
the judgment rendered by Hon'ble the Supreme Court in case
Additional District and Sessions Judge 'X' Vs. High Court of
Madhya Pradesh6.
6 (2015) 4 SCC 91
11. It has been further contended by learned counsel for respondent
No. 4 that since respondent No. 4 belongs to Scheduled Caste
community, therefore, she preferred a complaint to Chhattisgarh
Rajya Anusuchit Janjati Ayog and after making an enquiry, vide
its letter dated 02.07.2018 (Annexure P/2) has advised the
petitioner/ accused to maintain good behaviour with the
complainant/ respondent No. 4. He would further submit that
from bare perusal of the letter dated 02.07.2018, it is evident that
no such finding of issuance of clean chit to the petitioner, has
been given.
12. It has been further contended that the learned Judicial
Magistrate First Class, Bilaspur vide its judgment dated
22.06.2018 has found respondent No. 4 & other co-accused
guilty of offence under Section 294 of IPC and imposed fine of
Rs. 500/- each and thereafter, FIR has been registered against
the petitioner after three days i.e. on 25.06.2018. From bare
perusal of chronology of facts of the instant lis, it is evident that
the contention raised by the petitioner is not tenable as the date
of incident is 16.06.2017 and complaint was preferred
immediately on 20.06.2017, therefore, submission made by
learned counsel for the petitioner is not correct and liable to be
rejected. He would rely upon the judgment rendered by Hon'ble
the Supreme Court in Mahesh Chaudhary Vs. State of
Rajasthan7, Mohd. Akram Siddiqui Vs. State of Bihar8 &
Rajeev Kourav Vs. Baisahab9.
13. Learned counsel for respondent No. 4 would also refer to the
judgment rendered by Hon'ble the Supreme Court in Additional
District and Sessions Judge 'X' Vs. Registrar General, High
Court of Madhya Pradesh & others 10, wherein it has been held
as under:-
"26........"The interjections by the learned senior
counsel for the petitioner, are always delightful".
7 (2009) 4 SCC 439
8 (2019) 13 SCC 350
9 (2020) 3 SCC 317
10 (2015) 4 SCC 91
Learned senior counsel for the petitioner, had
serious objection to the term, ''delightful'' used, with
reference to "her". She questioned, the use of the
term, ''delightful" by posing to the learned senior
counsel, whether similar interjections by men, were
also considered by him as delightful. Why then, she
questioned, should "her" interjection be found
''delightful''. In expressing her view, she went on to
describe the response of the learned senior
counsel as "sexually coloured". Having given our
thoughtful consideration to the response, of the
learned counsel for the petitioner, we may only say,
that she may well be right. There is a lot to be
learnt, from what she innocuously conveyed. Her
sensitivity to the issue, one may confess, brought
out to us, a wholly different understanding on the
subject. It is, therefore, that we have remarked
above, that the evaluation of a charge of sexual
harassment, would depend on the manner in which
it is perceived. Each case will have to be decided
on its own merits. Whether the perception of the
harassed individual, was conveyed to the person
accused, would be very material, in a case falling in
the realm of over-sensitivity. In that, it would not be
open to him thereafter, to defend himself by
projecting that he had not sexually harassed the
person concerned, because in his understanding
the alleged action was unoffending."
14. He would further submit that there is, prima facie, offence made
out against the petitioner, therefore, the FIR registered against
him cannot be quashed as it is well settled by Hon'ble the
Supreme Court that the FIR can be quashed in rarest of rare
case, which is not the present one, therefore, the present
petition is liable to be dismissed by this Court.
15. I have heard learned counsel for the parties and perused the
documents appended thereto with utmost satisfaction.
16. The point required to be determined by this Court is (i) whether
the offence under Section 3(1)(xii) of the Act, 1989 is, prima
facie, made out against the petitioner ?
(ii) whether the contents of FIR prima facie establish that the
offence under Section 354(A) of IPC is made out against the
petitioner or not ?
17. For better understanding of facts of the case, it is expedient by
this Court to examine the provision of Section 3(1)(xii) of the Act,
1989, which is extracted as under :-
"Section 3(1) (xii)- being in a position to dominate
the will of a woman belonging to a Scheduled
Caste or a Scheduled Tribe and uses that position
to exploit her sexually to which she would not have
otherwise agreed."
18. Respondent No. 4 & other persons whose statement has been
recorded by the police, have not stated anything about alleged
commission of offence under Section 3(1)(xii) of the Act, 1989.
The statement of respondent No. 4, Smt. Snehlata Mishra, Smt.
Dr. Urja Ranjan, Smt. Smriti Rani Prakash, are extracted below:-
Respondent No. 4- --------izkpk;Z d{k esa ml le;
mifLFkr MkW- euh"k frokjh Hkh ihNs&ihNs d{k ls ckgj vk;s
vkSj eq>ls cksys fd vxj vkidks vodk'k pkfg;s rks eq>ls
vdsys esa vkdj feyksA eSa ;g 'kCn lqudj bLrC/k jg xbZA
D;ksafd mlus brus xyr rjhds ls dgk Fkk ftlls eq>s cgqr
gh T;knk rdyhQ gqbZ blds ckn eSa 'kke dks ?kj okil vkbZ
bl laca/k esa vius ifr ls ppkZ dh eq>s egkfo|ky; ds deZ-
ds }kjk euh"k }kjk ds }kjk bl izdkj ds 'kCnksa dk iz;ksx
fd;k x;k gS rks esjs ifr Mh-ih- foiz egkfo|ky; fcykliqj
ds izkpk;Z ls bl laca/k esa voxr djk;saxsA fnukad
[email protected]@2017 dks vius lgdehZ Le`fr jkuh izdk'k dh lkFk
izkpk;Z d{k esa MkW- euh"k frokjh ds f[kykQ izHkkjh izkpk;Z MkW-
foey dqekj iVsy dks fn;k ,oa eqag tckuh voxr djk;kA
izHkkjh izkpk;Z }kjk esjs }kjk fn;s x;s vkosnu dks ckn ysus ls
euk fd;s vkSj eq>s le>kbZl nsus yxs fd LVkWQ esa NksVh
eksVh ckrs gksrh jgrh gSA lgus dh vknr Mkfy;s] rc esjs
lkFk xbZ izksQslj Le`fr jkuh us Hkh cksyh fd ge vieku
lgu dj dke djsa rc izHkkjh izkpk;Z foey iVsy pqi gks
x;s---------
Smt. Snehlata Mishra- -------- rks izkpk;Z us eq>s vodk'k
gsrq v/;{k iz'kklu lfefr ls feyus ds fy;s dgk mlds
mijkar rc eSa izkpk;Z d{k ls ckgj vk;h rks esjs ihNs&ihNs
MkW- euh"k frokjh Hkh vk;k vkSj izkpk;Z dk;kZy; ds lkeus
cjkenk esa dgk fd esMe vki ;fn NqV~Vh pkgrh gSa rks eq>ls
vdsys esa vkdj feys vkSj crk;h fd ;g 'kCn lqudj LrC/k
jg x;h D;ksafd mlsus ¼euh"k frokjh½ brus xyr rjhds ls
dgk Fkk ftlls jtuh esMe dks dkQh rdyhQ gqbZ--------
Smt. Dr. Urja Ranjan Sinha- --------fQj jtuh dqtwj
us ;g Hkh crk;k fd og tc izkpk;Z d{k ls ckgj fudyh rks
MkW- euh"k frokjh Hkh ihNs&ihNs ckgj fudyk vkSj dgk fd
vxj vkidk vodk'k pkfg;s rks eq>ls vdsys eas vkdj feysA
;g ckyrs gq, jtuh ,dne :vkalh gks xbZ Fkh rc eSus mls
dgk fd vjs mldh fgEer dSls gqbZ reqls bl rgj ckr
djus dhA fQj eSus Hkh dgk fd bl pht dk fojks/k cgqr
t:jh gS--------
Smt. Smriti Rani Prakash- --------vkSj mlh vftZr
vodk'k ds laca/k esa ckr djus fnukad [email protected]@17 dks izkpk;Z
d{k xbZ Fkh rks izkpk;Z us eq>s v/;{k iz'kklu lfefr ls ppkZ
djsaA ;g lqudj os mBh vkSj ckgj tkus yxh mlh le; izks-
euh"k frokjh vkSj muds ihNs&ihNs vkdj cjkenk esa mlls
dgk fd eSMe ;fn vki NqV~Vh pkgrh gSa rks eq>ls vdsys esa
vkdj feys dgk ,slk crk;h rc irk pyk gS eSa fnukad
[email protected]@17 dks dkyst vk;h rc izkpk;Z d{k eas jtuh esMe
viuh f'kdk;r i= euh"k frokjh ds fo:) esa nsus ds dksb
xbZ mlds lkFk eSa Hkh x;h Fkh --------
19. From bare perusal of Section 3(1)(xii) of the Act, 1989, in order
to attract the ingredient of this Section, the following ingredient
must be satisfied.
(i) The accused must belong to either member of Scheduled
Tribe/ Scheduled Caste
(ii) The victim woman must belong to a member of Scheduled
Tribe/ Scheduled Caste.
(iii) The accused must be in a position to dominate the will of
the victim woman.
(iv) The accused must use such position to exploit the victim
woman sexually to which, she would not have otherwise
agreed.
'Position to dominate' means 'commanding and controlling'
position. The position of the accused coupled with the
use of such position to exploit the victim woman
sexually are important criteria from the caste/tribe
factor of the victim/ accused.
20. From perusal of the statement of the complainant & other
witnesses, it cannot be, prima facie, established the offence has
been committed with racial prejudice and respondent No. 4 and
witnesses had never stated that the petitioner was in a position
to exploit respondent No. 4 sexually, petitioner and respondent
No. 4 are working as Assistant Professors in the same college,
therefore, it cannot be presumed that the petitioner was in a
position to dominate the respondent No. 4 or to command or
control her. Apart from the fact that the prosecutrix belongs to
the Scheduled Caste community and the accused belongs to
different communities, there is nothing on record to show that the
crime was perpetrated by the petitioner for the sole reason that
the prosecutrix belonged to Scheduled Caste community.
Therefore, prima facie, no offence under Section 3(1)(xii) of the
Act, 1989 is made out against the petitioner. Hon'ble the
Supreme Court in case of Pramod Suryabhan Pawar Vs. The
State of Maharashtra & others11, has held as under:-
"22 Without entering into a detailed analysis of the
content of the WhatsApp messages sent by the
appellant and the words alleged to have been
spoken, it is apparent that none of the offences set
out above are made out. The messages were not
in public view, no assault occurred, nor was the
appellant in such a position so as to dominate the
will of the complainant. Therefore, even if the
allegations set out by the complainant with respect
to the WhatsApp messages and words uttered are
accepted on their face, no offence is made out
under SC/ST Act (as it then stood). The allegations
on the face of the FIR do not hence establish the
commission of the offences alleged."
21. Hon'ble the Supreme Court in Dr. Subhash Kashinath Mahajan
(Supra), has issued certain direction in this regard in paragraph
No. 77 & 79, which are as under:-
"77. Accordingly, we direct that in absence of any
other independent offence calling for arrest, in
respect of offences under the Atrocities Act, no
arrest may be effected, if an accused person is a
public servant, without written permission of the
appointing authority and if such a person is not a
public servant, without written permission of the
Senior Superintendent of Police of the District.
Such permissions must be granted for recorded
reasons which must be served on the person to be
arrested and to the concerned court. As and when
a person arrested is produced before the
Magistrate, the Magistrate must apply his mind to
the reasons recorded and further detention should
be allowed only if the reasons recorded are found
to be valid. To avoid false implication, before FIR is
registered, preliminary enquiry may be made
11 (2019) 9 SCC 608
whether the case falls in the parameters of the
Atrocities Act and is not frivolous or motivated.
Conclusions
79. Our conclusions are as follows:
79.1. Proceedings in the present case are clear
abuse of process of court and are quashed.
79.2. There is no absolute bar against grant of
anticipatory bail in cases under the Atrocities Act if
no prima facie case is made out or where on
judicial scrutiny the complaint is found to be prima
facie mala fide. We approve the view taken and
approach of the Gujarat High Court in Pankaj D.
Suthar Vs. State of Gujarat [(1992) 1 Guj LR 405]
and N.T. Desai Vs. State of Gujarat [(1997) 2 Guj
LR 405] and clarify the judgments of this Court in
State of M.P. Vs. Ram Kishna Balothia [(1995) 3
SCC 221]
79.3. In view of acknowledged abuse of law of
arrest in cases under the Atrocities Act, arrest of a
public servant can only be after approval of the
appointing authority and of a non-public servant
after approval by the S.S.P. which may be granted
in appropriate cases if considered necessary for
reasons recorded. Such reasons must be
scrutinized by the Magistrate for permitting further
detention.
79.4. To avoid false implication of an innocent, a
preliminary enquiry may be conducted by the DSP
concerned to find out whether the allegations make
out a case under the Atrocities Act and that the
allegations are not frivolous or motivated.
79.5 Any violation of direction (iii) and (iv) will be
actionable by way of disciplinary action as well as
contempt.
79.6. The above directions are prospective."
22. Hon'ble the Supreme Court in Union of India Vs. State of
Maharashtra & others12, has held as under:-
"52. There is no presumption that the members of
the Scheduled Castes and Scheduled Tribes may
misuse the provisions of law as a class and it is not
resorted to by the members of the upper Castes or
the members of the elite class. For lodging a false
report, it cannot be said that the caste of a person is
the cause. It is due to the human failing and not due
to the caste factor. Caste is not attributable to such
an act. On the other hand, members of the
12 (2020) 4 SCC 761
Scheduled Castes and Scheduled Tribes due to
backwardness hardly muster the courage to lodge
even a first information report, much less, a false
one. In case it is found to be false/unsubstantiated,
it may be due to the faulty investigation or for other
various reasons including human failings
irrespective of caste factor. There may be certain
cases which may be false that can be a ground
for interference by the Court, but the law cannot
be changed due to such misuse. In such a
situation, it can be taken care in proceeding
under section 482 of the Cr.PC."
23. Now the second point requires to be determined by this Court is
whether the contents of FIR prima facie establishes that the
offence under Section 354 (A) of IPC is made out against the
petitioner or not ?
24. For better understanding of facts of the case, it is expedient by
this Court to examine the provision of Section 354 (A) of IPC,
which is reproduced hereunder:-
"Section 354A. Sexual harassment and
punishment for sexual harassment- (1) A man
committing any of the following acts--
(i) physical contact and advances involving
unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a
woman; or
(iv) making sexually coloured remarks, shall be
guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in
clause (i) or clause (ii) or clause (iii) of sub-section
(1) shall be punished with rigorous imprisonment for
a term which may extend to three years, or with fine,
or with both.
(3) Any man who commits the offence specified in
clause (iv) of sub-section (1) shall be punished with
imprisonment of either description for a term which
may extend to one year, or with fine, or with both."
25. Learned counsel for the petitioner would submit that the
petitioner asked respondent No. 4 as reflected in the FIR that
eS M e ;fn vki Nq V ~ V h pkgrh gS rks eq > ls vdsy s eas vkdj feya s and
would submit that such statement made by the petitioner does
fall within the ambit of Section 354 (A) of IPC. Learned counsel
for respondent No. 4 has tried to make out the case under
Section 354 (A) of IPC and whether such words can be used as
sexually coloured remarks. Learned counsel for the petitioner
would submit that no offence is made out from the complaint
made by respondent No. 4, statement of the witnesses, recorded
under Section 161 of the Cr.P.C. for commission of offence of
sexually coloured remarks. It has been contended by learned
counsel for the petitioner that the criminal proceeding has been
initiated by the complainant in a malafide intention to harass and
humiliate the petitioner, as criminal case against all the teachers
are going on and vide order dated 25.06.2018, learned Judicial
Magistrate First Class imposed fine of Rs. 500/- to all the
teachers of the institution.
26. Learned counsel for respondent No. 4 would submit that the
offence under Section 354 (A) of IPC is made out against the
petitioner as it is sexually coloured remarks falling within ambit of
sexual harassment, which is punishable under Section 354 (A)
of the IPC. He would refer to paragraph 14, 17 & 23 of the
judgment rendered by Hon'ble the Supreme Court in Rupan
Deol Bajaj Vs. Kanwar Pal Singh Gill13 has held as under:-
"14. Since the word `modesty' has not been
defined in the Indian Penal Code we may
profitably look into its dictionary meaning.
According to Shorter Oxford English Dictionary
(Third Edition) modesty is the quality of being
modest and in relation to woman means "womanly
propriety of behaviour; scrupulous chastity of
thought, speech and conduct". The word `modest'
in relation to woman is defined in the above
dictionary as "decorous in manner and conduct;
not forward or lewd; shamefast". Webster's Third
New International Dictionary of the English
language defines modesty as "freedom from
coarseness, indelicacy or indecency; a regard for
propriety in dress, speech or conduct". In the
Oxford English Dictionary (1933 Ed) the meaning
of the word `modesty' is given as "womanly
propriety of behaviour; scrupulous chastity of
13 (1995) 6 SCC 194
thought, speech and conduct (in man or woman);
reserve or sense of shame proceeding from
instinctive aversion to impure or coarse
suggestions."
17. It is undoubtedly correct that if intention or
knowledge is one of the ingredients of any
offence, it has got to be proved like other
ingredients for convicting a person. But, it is also
equally true that those ingredients being states of
mind may not be proved by direct evidence and
may have to be inferred from the attending
circumstances of a given case. Since, however, in
the instant case we are only at the incipient stage
we have to ascertain, only prima facie, whether
Mr. Gill by slapping Mrs. Bajaj on her posterior, in
the background detailed by her in the FIR,
intended to outrage or knew it to be likely that he
would thereby outrage her modesty, which is one
of the essential ingredients of Section 354 IPC.
The sequence of events which we have detailed
earlier indicates that the slapping was the finale to
the earlier overtures of Mr. Gill, which considered
together, persuade us to hold that he had the
requisite culpable intention. Even if we had
presumed he had no such intention he must be
attributed with such knowledge, as the alleged act
was committed by him in the presence of a
gathering comprising the elite of the society - as
the names and designations of the people given in
the FIR indicate. While on this point we may also
mention that there is nothing in the FIR to indicate,
even remotely, that the indecent act was
committed by Mr. Gill, accidentally or by mistake
or it was a slip. For the reasons aforesaid, it must
also be said that, - apart from the offence under
Section 354 IPC - an offence under Section 509
IPC has been made out on the allegations
contained in the FIR as the words used and
gestures made by Mr. Gill were intended to insult
the modesty of Mrs. Bajaj.
23. We are constrained to say that in making the
above observations the High Court has flagrantly
disregarded - unwittingly we presume - the settled
principle of law that at the stage of quashing an
FIR or complaint the High Court is not justified in
embarking upon an enquiry as to the probability,
reliability or genuineness of the allegations made
therein. Of course as has been pointed out in
Bhajan Lal's case (supra) an F.I.R. or a complaint
may be quashed if the allegations made therein
are so absurd and inherently improbable that no
prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding
against the accused but the High Court has not
recorded such a finding, obviously because on the
allegations in the FIR it was not possible to do so.
For the reasons aforesaid we must hold that the
High Court has committed a gross error of law in
quashing the FIR and the complaint. Accordingly,
we set aside the impugned judgment and dismiss
the petition filed by Mr. Gill in the High Court under
Section 482 Cr.P.C."
27. He would also refer to the judgment rendered by Hon'ble the
Supreme Court in Mohd. Akram Siddiqui, Vs. State of Bihar14,
wherein it has been held as under:-
"5. Ordinarily and in the normal course, the High
Court when approached for quashing of a criminal
proceeding will not appreciate the defence of the
accused; neither would it consider the veracity of
the document(s) on which the accused relies.
However an exception has been carved out by this
Court in [Yin Cheng Hsiung Vs. Essem Chemical
Industries, 2011 (15) SCC 207; State of Haryana
& Ors. Vs Bhajan Lal & Ors., 1992 Supp.(1) SC
335 and Harshendra Kumar D. Vs. Rebatilata
Koley Etc., (2011) 3 SCC 351] to the effect that in
an appropriate case where the document relied
upon is a public document or where veracity
thereof is not disputed by the complainant, the
same can be considered."
28. Learned counsel for the petitioner relied upon the order passed
by the Judicial Magistrate First Class to substantiate that the
present FIR is counter blast of ongoing criminal proceeding
against the petitioner and other teaching staff of the college, the
same has been objected by learned counsel for respondent No.
4 stating that the same cannot be taken into consideration by
this Court while hearing the case under Section 482 of the
Cr.P.C. This contention of learned counsel for respondent No. 4
is not acceptable as Hon'ble the Supreme Court has held in case
of Mohd. Akram Siddiqui (Supra) that in an appropriate case
where the document relied upon is a public document or where
veracity thereof is not disputed by the complainant, the same
can be considered.
14 (2019) 13 SCC 350
29. Section 354 (A) of the Act, 1989 has been inserted with effect
from 03.2.2013 which provides that any man who commits the
offence specified in clause (i) or clause (ii) or clause (iii) of sub-
section (1) shall be punished with rigorous imprisonment for a
term which may extend to three years, or with fine or with both.
Any may who commits the offence specified in clause (iv) of sub-
section (1) shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine
or with both.
30. Learned counsel for the petitioner would submit that since there
is no physical contact and advances; or any demand or request
for sexual favours, therefore, the offence is not made out against
the petitioner. From bare perusal of Section 354 (A) of IPC, it is
evident that the aforesaid ingredients should be involved in the
complaint for commission of offence under Section 354 (A) of
IPC, which are not available in the present case, therefore, the
offence under Section 354 (A) of IPC is not made against the
petitioner. As there was no demand or request for sexual favors
as such offence under Section 354(A)(ii) is also not made out
against the petitioner. From perusal of statement made by the
complainant as also the other witnesses and the contents of the
FIR that no allegation of showing pornography against the will of
a woman has been made out, therefore, offence under Section
354 (A)(iii) is also not made out against the petitioner
31. If we see that the contents of the complaint wherein respondent
No. 4 has stated that the petitioner has said that eSMe ;fn vki
NqV~Vh pkgrh gS rks eq>ls vdsys eas vkdj feyas which cannot be inferred
that there is any sexual coloured remarks against respondent
No. 4. The remarks made by the petitioner towards respondent
No. 4 in their conversation do not fall within ambit of sexual
harassment in order to prosecute the petitioner for commission
of offence under Section 354 (A)(iv) of IPC.
32. The contention of learned counsel for respondent No. 4 that she
has already made complaint on 17.06.2017, which is prior to
judgment passed by learned Judicial Magistrate First in Criminal
Case No. 9555/2014, therefore, the petitioner cannot take
advantage of the judgment passed by learned Judicial
Magistrate First Class. Submission made by learned counsel for
respondent No. 4 is not acceptable as the criminal case has
been registered on 14.06.2012 on the basis of criminal case
registered against respondent No. 4 and other teachers of the
institution bearing Criminal Case No. 9555/2014. It means
before filing of the complaint by respondent No. 4 itself, criminal
proceeding is going on and judgment was passed on
25.06.2018, therefore, this Court can certainly reach to a prima
facie opinion that since the criminal case is going on, therefore, it
is counter-blast on the part of respondent No. 4, as such,
adjudication of the proceeding against the petitioner for
commission of offence under Section 354 (A) of IPC will be
nothing, but an abuse of process of law.
33. In view of the above-stated legal proposition as well as the
judgment rendered by Hon'ble the Supreme Court, FIR No. 0036
dated 25.06.2018 (Annexure P/1) registered against the
petitioner by respondent No. 4 at Women Police Station,
Bilaspur (C.G.) for commission of offence punishable under
Section 354 (A) of IPC & Section 3(1)(xii) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989, deserves to be and is hereby quashed.
34. In view of the above, the present petition is allowed.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun
