P.S.Sharma vs State & Anr.
2015 Latest Caselaw 4945 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 3rd MARCH, 2015
                                  DECIDED ON : 14th JULY, 2015

+      CRL.M.C. 2014/2007 & CRL.M.A.No.7159/2007
       P.S.SHARMA (P-1)                                        ..... Petitioner
                            Through :       Mr.Vijay Aggarwal, Advocate with
                                            Ms.Chaitali Jain & Mr.Vaibhav,
                                            Advocates.
                            versus
       STATE & ANR.                                            ..... Respondents
                            Through :       Ms.Kusum Dhalla, APP.
                                            Mr.K.T.S.Tulsi, Sr.Advocate with
                                            Mr.Gaurang Vardhan, Advocate for
                                            R2.


+      CRL.M.C. 2015/2007
       GOPAL (P-2)                                             ..... Petitioner
                            Through :       Mr.Vijay Aggarwal, Advocate with
                                            Ms.Chaitali Jain & Mr.Vaibhav,
                                            Advocates.
                            versus
       STATE & ANR.                                            ..... Respondents
                            Through :       Ms.Kusum Dhalla, APP.
                                            Mr.K.T.S.Tulsi, Sr.Advocate with
                                            Mr.Gaurang Vardhan, Advocate for
                                            R2.

+      CRL.M.C. 2039/2007 & CRL.M.A.No.7249/2007
       DEEPAK KATHPALIA (P-3)                                  ..... Petitioner
                            Through :       Mr.Pavan Narang, Advocate with

Crl.M.C. 2014/2007 & connected petitions.                            Page 1 of 13
                                             Mr.Anish Dhingra, Mr.Shivam
                                            Takiar & Ms.Vasundhara Chauhan,
                                            Advocates.

                            Versus

       STATE & ANR.                                            ..... Respondents
                            Through :       Ms.Kusum Dhalla, APP.
                                            Mr.K.T.S.Tulsi, Sr.Advocate with
                                            Mr.Gaurang Vardhan, Advocate for
                                            R2.
AND
+   CRL.M.C. 2040/2007 & CRL.M.A.No.7251/2007
       SUSHIL ANSAL (P-4)                                      ..... Petitioner
                            Through :       Mr.Pavan Narang, Advocate with
                                            Mr.Anish Dhingra, Mr.Shivam
                                            Takiar & Ms.Vasundhara Chauhan,
                                            Advocates.
                            versus
       STATE & ANR.                                            ..... Respondents
                            Through :       Ms.Kusum Dhalla, APP.
                                            Mr.K.T.S.Tulsi, Sr.Advocate with
                                            Mr.Gaurang Vardhan, Advocate for
                                            R2.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by an order dated 19.06.2007 of learned ACMM

by which the petitioners were summoned for commission of offences

punishable under Sections 188/506/509 IPC read with Section 120 B IPC,

they have preferred the instant petitions to challenge its legality and

correctness. Respondent No.2 / complainant has contested the revision

petitions.

2. Briefly stated, the facts giving rise to the instant petitions

were that a complaint dated 11.05.2007 was lodged by respondent No.2

before learned Addl. Sessions Judge conducting trial CBI vs. Sushil Ansal

to the effect that on 10.05.2007 at about 03.55 p.m. when she along with

her husband and two members of the Association of the Victims of Uphar

Tragedy (AVUT) came out of Court after attending proceedings,

P.S.Sharma (P-1) and Deepak Kathpalia (P-3), Ansals' employees started

clicking her pictures on their mobile with some ulterior motive and it

could be misused. They were accompanied by two security guards of

Ansals that time. Finding to have been noticed, all of them fled the spot.

She further averred that earlier also she had brought to the notice of the

Court certain lewd remarks passed by the security guards. She requested

the learned Presiding Officer to take strict action as it was illegal to click

pictures without consent in Court-premises where photography was

prohibited. When the application was taken up for consideration on

23.05.2007, learned Addl. Sessions Judge by order dated 23.05.2007

directed the application to be placed before 'appropriate' authority for

taking appropriate action as per provisions of the law. It was directed to be

sent to learned ACMM who had the 'administrative powers'. On receipt

of the application / complaint, learned ACMM issued Court notice to

respondent No.2 for appearance on 25.05.2007. On 28.05.2007, statement

of the complainant as CW-1 was partly recorded. On 18.06.2007,

statements of the complainant and other witnesses examined by her were

recorded. By an order dated 19.06.2007 the petitioners were summoned

for the commission of aforesaid offences.

3. I have heard the learned counsel for the petitioners and

learned Senior Counsel for the respondent No.2 and have examined the

file. I have also gone through the written submissions filed on record

along with citations.

4. Learned counsel for the petitioners urged that the impugned

order being without jurisdiction is unsustainable. It was not permissible to

take cognizance for commission of offence under Section 188 IPC in the

absence of any complaint in terms of Section 195 Cr.P.C. Section 196(2)

Cr.P.C. specifically created a bar to take cognizance of the offence

punishable under Section 120B IPC. The impugned order was passed

mechanically without appreciation of legal evidence. The complaint did

not disclose commission of any offence under Sections 506 and 509 IPC.

Issuance of process without compliance of the mandatory provisions of

Section 204 Cr.P.C. was bad. Learned Trial Court fell in grave error to

take into consideration the previous complaints lodged by the complainant

to infer conspiracy.

5. Learned Senior Counsel for the respondent No.2 urged that

the petitioners had taken pictures of the complainant with ulterior motive.

Security guards, whose identity was not known to the complainant, had

uttered lewd remarks to criminally intimidate the complainant with the

sole object to prevent her from pursuing her legal remedies. Such an

attempt was made earlier also on various occasions for which complaints

were lodged. Infraction of procedure in initiating proceeding against the

petitioners is not sufficient to disbelieve the complainant and dislodge her

version. Assuming that there were certain lapses, for that reason alone, the

petitioners can't be let off.

6. Admitted position is that respondent No.2 along with her

husband and other victims who had formed Association of the Victim of

Uphaar Tragedy (AVUT) used to regularly attend Court proceedings in a

case CBI vs. Sushil Ansal etc. Undeniably, on 10.05.2007 respondent

No.2 and the petitioners had attended the Court proceedings.

7. Complainant's grievance in her complaint dated 11.05.2007

(Ex.CW-1/A) was only against P-1 and P-3 for clicking her pictures on

mobile. In the said complaint, she at nowhere averred about hatching of

any conspiracy by the petitioners for commission of any such offence. She

had accused two security guards (of Ansals) also who were allegedly

present at the time of clicking of her pictures. In the complaint (Ex.CW-

1/A), there are no allegations if at that time any of the security guards

passed any specific lewd remark to her. The complainant desired to take

strict action barely for clicking her pictures illegally without her consent

only against P-1 and P-3. She apprehended that any inaction would

encourage them to continue to misbehave in future.

8. The complaint was assigned by the learned Addl. Sessions

Judge vide order dated 23.05.2007 to the appropriate authority i.e. ACMM

who had administrative powers, to take appropriate action as per

provisions of law. Apparently, the learned Addl. Sessions Judge herself

did not take cognizance of the complaint. No complaint under Section

195 Cr.P.C. was filed by the Court concerned.

9. In her deposition as CW-1 in pre-summoning evidence, the

complainant made vital improvements and assigned specific 'lewd'

remarks allegedly uttered by one of the security guards. She further

proved her earlier complaint (Ex.CW-1/B), lodged before Judge Incharge,

Patiala House Courts on 13.09.2004; complaint (Ex.CW-1/C) lodged at

PS Tilak Marg against one Ajeet Chaudhary, Manager, Uphar Cinema

(Ansals' employee); (who had allegedly misbehaved and threatened her of

dire consequences on 18.09.2000); statement (Ex.CW-1/D) recorded

therein at the police station. She further informed that in the past also,

certain documents were tempered with for which FIR No. 207/2006 dated

17.05.2006 at Police Station Tilak Marg was lodged. Somewhat similar

are the statements of CW-2 (R.Krishnamoorty) - respondent's husband,

CW-3 (R.S.Rahi), CW-4 (Durga Dass) and CW-5 (Naveen Sahni), the

other victims.

10. For offence under Section 188 IPC, complaint of the public

servant whose order has been disobeyed is necessary. It was not

permissible for the Trial Court to take cognizance of the offence under

Section 188 IPC in the absence of any regular formal complaint under

Section 195 Cr.P.C. in writing by the public servant who issued the

prohibition order.

11. Gopal (P-2) and Sushil Ansal (P-4) were summoned to face

trial under Sections 188/506/509 IPC with the aid of Section 120 B IPC.

There is, however, not an iota of evidence / material on record to prima

facie infer if at any stage both of them hatched conspiracy with P-1 and P-

3 to commit the said offences. Indisputably, neither of them was present at

the spot outside the Court room when snaps were allegedly clicked.

Nothing is on record to show that the said offenders were in constant

touch with P-2 and P-4 or had their express or tacit instructions / orders to

click respondent No.2's photographs without her consent. There is

nothing in evidence if soon after clicking photos, these were passed on or

forwarded to them or they retained or used / misused them any time. In

complaint (Ex.CW-1/A), the complainant did not assign or attribute any

role whatsoever to P-2 and P-4. In her statement as CW-1, there are no

specific allegations for hatching conspiracy. Lodging of the earlier

complaints (Ex.CW-1/B and Ex.CW-1/C) by the respondent No.2 were

not sufficient to infer conspiracy among the petitioners. Complaint

(Ex.CW-1/B) was lodged way back on 13.09.2004 before the learned

Administrative Judge, Patiala House Courts. The said complaint was

primarily against one lady advocate who had put appearance on behalf of

the accused Radha Krishan Sharma, Manager, Uphar Cinema on

09.09.2004 and had allegedly misbehaved with her at P-2's behest.

Apparently, at that time also, P-2 and P-4 themselves had not extended

any such threat. Complaint (Ex.CW-1/C) dated 19.09.2000 was against

one Ajeet Kumar Chaudhary, former manager of Uphar Cinema for threat

and criminal intimidation. The said complaint has no bearing as Ajeet

Kumar Chaudhary is not a party in the complaint. It is not clear if any

action was taken on the said complaints or the complainant instituted any

complaint case in the Court in the absence of any action by the police.

Merely because P-2 and P-4 were employers of P-1 and P-3, it cannot be

presumed that they hatched conspiracy with them to commit the offence

in question.

12. I am conscious that generally conspiracies are not hatched in

the open, by their nature, they are secretly planned. It is not always

possible to give affirmative evidence about the date of its formation, about

the persons who took part in it, about the object which the conspirators set

before themselves and about the manner in which the object of the

conspiracy was to be carried out. Conspiracy can be established by direct

or circumstantial evidence or conduct of the parties. At the same time, it is

also settled position of law that mere suspicion is not enough to proceed.

If reliance is placed upon circumstantial evidence, a clear link has to be

established and the chain has to be completed. Conspiracy cannot be

assumed from a set of unconnected facts or from a set of conduct

exhibited by different accused persons at different places and time without

a reasonable link. Meeting of minds or the element of agreements is the

essence of the offence under Section 120 B IPC. Mere relationship of

employer and employee ipso facto can't lead to an inference beyond doubt

that there was a meeting of mind; it cannot constitute a valid foundation

for proceedings against P-2 and P-4 for commission of the aforesaid

offence with the aid of Section 120 B IPC for individual acts of P-1 and P-

3. Offence of conspiracy requires some kind of physical manifestation of

agreement such as by way of meetings and communications which is

lacking herein.

Imputations in the complaint (Ex.CW-1/A) do not relate to P-

2 and P-4. The complaint wanted action against P-1 and P-3. It seems that

the Trial Court without legal evidence enlarged its scope to summon P-2

and P-4. Since there was no worthwhile evidence on record to infer

conspiracy, summoning of P-2 and P-4 with the aid of Section 120 B IPC

cannot be sustained and proceedings against them are ordered to be

quashed.

13. Ingredients of Section 506 IPC for which P-1 and P-3 have

been summoned are not attracted as at the time of clicking the

complainant's photographs, no threat whatsoever was extended to her to

cause any injury to her person, reputation or property or to cause alarm.

The threat referred to under Section 503 IPC (Criminal Intimidation) must

be a threat communicated or uttered with the intention of its being

communicated to the person threatened for the purpose of influencing his

or her mind. Observations of this Court in 'Kanshi Ram Vs. State', 2000

(54) DRJ 112 are relevant :

"So far as the offence under Section 506 IPC is concerned, the complainant Israr Ahmed stated in his case diary statement that at the relevant time the petitioner had exhorted his security personnel to thrash the journalists. According to Israr Ahmed, the exact words used by the petitioner were "Maro Salon Ko". Strangely enough, Israr Ahmed has nowhere stated in his statement that the alleged threat had caused an alarm to him. On the contrary the circumstances of the case clearly go to show that even after the alleged threat, the complainant or other media persons did not retrace their steps. It is well settled that mere threat is no offence. That being so, the threat alleged to have been given by the petitioner does not fall within the mischief of Section 506 IPC. Consequently, no charge under Section 506 IPC can be framed against the petitioner on the basis of the said evidence."

14. The Trial Court apparently fell in grave error to take

cognizance of offence under Section 506 IPC.

15. I am of the considered view that P-1 and P-3 can be

proceeded against for commission of offence under Section 509 IPC. In

complaint (Ex.CW-1/A), the complainant categorically accused them of

clicking her photos on mobile without her permission. They have not

given any reasonable explanation as to what had prompted them to click

complainant's photographs on their mobile without her permission and

consent. It is to be ascertained during trial as to what was their real

intention / motive to click her photographs. It is true that Section 509 IPC

does not specifically prohibit a person from photographing a woman

without her consent. Nevertheless, it punishes a person who intentionally

insults the modesty of a woman in any of the ways specified therein. It

intends to protect the modesty of a woman. It deals with word, gesture or

act intended to insult the modesty of a woman. In the instant case, the

petitioners - P-1 and P-3 employees of Ansals facing trial before the

Court of learned Addl. Sessions Judge had no plausible reasons to take

complainant's photographs in a public place in the Court premises on their

mobile. They will have to explain as to for what purpose, the photographs

were taken clandestinely without complainant's permission. The

allegations made in the complaint and the solemn statements of the

complainant and her witnesses CW-2 to CW-5 are enough to proceed

against them prima facie for commission of offence under Section 509

IPC as no minute and exhaustive inquiry is required to be conducted at

this stage.

16. In the light of above discussion, Crl.M.C.Nos.2015/2007 and

2040/2007 preferred by petitioners - P-2 and P-4 are allowed and the

proceedings pending against them before the Trial Court are quashed.

17. P-1 and P-3 shall face trial for the commission of offence

under Section 509 IPC only. They shall appear before the Trial Court on

21st July, 2015. Crl.M.C.Nos. 2014/2007 and 2039/2007 are disposed of

accordingly.

18. Pending applications also stand disposed of.

19. Trial Court record be sent back forthwith with the copy of the

order.

(S.P.GARG) JUDGE JULY 14, 2015 / tr