Nisha Priya Bhatia vs State Nct Of Delhi & Ors.
2016 Latest Caselaw 7511 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                             Decided on: 21st December, 2016

+                        CRL.M.C. 1901/2016

          NISHA PRIYA BHATIA                                  ..... Petitioner
                        Represented by:          In person.
                              versus
          STATE NCT OF DELHI & ORS.                          ..... Respondents
                        Represented by:         Mr. Amit Ahlawat, APP.
                                                Mr. Sanjay Jain, ASG with Mr.
                                                Anil Soni, CGSC, Ms. Shreya
                                                Sinha, Advs. for R-2 and R-3.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. By the present petition, the petitioner, who appears in person, seeks quashing of FIR No.156/2009 under Sections 451/323/268/427 IPC registered at PS Sector 18, Gurgaon on the complaint of N. Sadanandan, Under Secretary in the Cabinet Secretariat, Govt. of India. The petitioner seeks quashing of this FIR on multiple grounds i.e. that the contents of the FIR do not disclose commission of cognizable offences hence no FIR could be registered by the police, the allegations are mala fide and yet another attempt to harass the petitioner as part of the long drawn harassment being caused to her. The petitioner while narrating her woes also states that on the basis of above noted FIR which was registered for non-cognizable offences, without the approval/directions of a Magistrate she was arrested in the wee hours of morning of 8th December,2009, when 14-15 police personnel barged

into her house, slapped her and took her to police station. She thus alleges that the arrest was in violation of the guidelines laid down in the case reported as (1997) 1 SCC 416 D.K. Basu vs. State and various provisions of Code of Criminal Procedure.

2. Learned Additional Solicitor General, who appears for respondent Nos. 2 and 3 i.e. Additional Secretary, Cabinet Secretariat as N. Sadanandan has since passed away and Secretary(R), Paryavaran Bhawan, CGO, Complex, Lodhi Road, New Delhi submits that the offences alleged in the FIR are cognizable, thus there is no illegality in registration of FIR or the arrest of the petitioner pursuant thereof. Therefore, the FIR in question is not liable to be quashed. He further states that even if the alleged offence was committed by the petitioner in the verandah outside the area where the door bell was fixed, the same would be an integral part of the house as held by this Court and an offence of criminal trespass having been made out which is a cognizable offence, there is no illegality in registration of the FIR in question. He further contends that the mere fact that there are litigations between the petitioner and the respondents arising out of her suspension is no ground to presume that the FIR in question has been registered malafidely and should be quashed.

3. Having heard learned counsel for the parties, before adverting to the contents of the FIR and whether the same is liable to be quashed, this Court would like to note the brief background.

4. The petitioner was a 1987 batch Executive Cadre officer in the Research & Analysis Wing (R&AW) Govt. of India till 18th December, 2009 when she was compulsorily retired. Thus, her litigations regarding service dispute were/are pending in various courts.

5. After charge sheet in the above noted FIR was filed, transfer petition being TP(Crl.) 419-420/2010 was filed before Hon'ble Supreme Court which vide order dated 1st August, 2011 was pleased to transfer the case from the State of Haryana to the jurisdiction of Delhi. The relevant portion of the order reads as under-

"T.P. (Crl.) 419/2010 We have gone through the grievance expressed by the petitioner and we accept the same. Therefore, the complaint case No.164 of 2010 arising from FIR No.156 of 2009 dated 30th October, 2009 of P.S. Sector 18, Gurgaon, Haryana titled as 'State of Haryana Vs. Nisha Priya Bhatia', is ordered to be transferred to the Dwarka Court, New Delhi. The transfer petition is allowed accordingly."

6. In SLP (C)1257/2010 the petitioner placed on record copies of the above noted FIR and charge sheet whereon the Supreme Court passed the following order on 9th July, 2015:

"In pursuance of the order dated 8th April, 2015, the petitioner-in- person has filed the copy of F.I.R and the Charge-sheet that has been filed against her. We have been apprised that Complaint Case No.164 of 2010 arising out of F.I.R. No.156 of 2009 dated 30.10.2009, registered with P.S. Sector-18, Gurgaon, Haryana, is pending before the Chief Metropolitan Magistrate, Dwarka. Having heard the petitioner in-person and Ms. Pinky Anand, learned Additional Solicitor General appearing for the Union of India, further proceedings before the said court is hereby stayed."

7. While disposing off this SLP(C) 1257/2010 the Hon'ble Supreme Court on 6th May, 2016 granted liberty to the petitioner to file appropriate petition seeking quashing of the above noted FIR.

8. Thus, the trial pursuant to the above noted FIR is now being conducted before the learned CMM, South West District. Though a feeble

attempt is made by the respondents to challenge the territorial jurisdiction of this Court to entertain the present petition under Section 482 Cr.P.C. seeking quashing of the FIR in question, however in view of the decision of the Supreme Court in the decisions reported as (2008) 10 SCC 180 Jayendra Saraswati Swamigal(d) Vs. State of Tamil Nadu and decision of this Court reported as 2009 SCC OnLine Del 2305 State Vs. Vikas Yadav & Anr. since trial has been transferred to a Court within the territorial jurisdiction of Delhi, this Court has territorial jurisdiction to entertain a petition under Section 482 Cr.P.C.

9. On 30th October, 2009 FIR No.156/2009 was registered at PS Sector 18 Gurgaon under Sections 451/323/28/427 IPC with the allegations:-

" Ms. Nisha Priya Bhatia, Director, Cabinet Secretariat, New Delhi is presently residing at the residential complex of the departmental Training Institute, Plot No.89A, Sector-18, Gurgaon, Haryana. She has been found to be involved in criminal trespasses to the residences of senior offices and other officials within the campus, causing damage to government properties, creation of nuisance and mischief, as well as criminal intimidation of other staff members residing in the campus. On 12th October, 2009, at around 0415 Hrs, Ms. Bhatia came out running from her house towards the Gate No.2 (residential side of the compound) and called out to the Guard on duty stating "Khun ho giya, Khun ho giya". She took the guard in front of her house to show the broken tail-light protectors of her personal vehicle (Maruti-Wagon R). The guard could not find any trace of khun or the corpse as such and returned to the post. The above guard was on duty from 0300 hrs. to 0600 hrs at that gate. Then the guard observed that Ms. Bhatia moved towards (at around 0417 hrs) the house of Joint Secretary (Trg), and started hitting the official vehicle of JS(Trg) parked outside latter's house (HR 26 AR 8183, Tata Indigo, GLX, Silver grey) with an iron/wooden rod, thereby breaking both side/rear view mirrors and front wind screen wipers. She also tried to break the side window glasses but failed, leaving few

scratches on the glass. It all happened within a span of two minutes, during all this she was shouting/abusing in a very loud voice. Thereafter, Ms. Bhatia went back towards her residence. The Guard Commander of the SSB also visited the scene of the incident and authenticated the statement of the Guard regarding damaging of the official vehicle by Ms. Bhatia. Photographs of the damaged vehicle are attached herewith. On the night of October 9 around 2345 hrs, Ms. Bhatia trespassed into the residence of Director (Trg.). She did not open the door and Ms. Bhatia remained for about 15 minutes in the front verandah hurling vulgar and threatening abuses. Director (Trg) found garbage outside the front door of the house at around 0700 hrs on 12.10.09. Ms. Bhatia threatened Director (Trg) and her husband that this what they would get from her and added that what she had done was nothing and that she would knock off their (Director-Trg and her husband) heads, if required. On the night of 12-13 October, Ms. Bhatia rang the door bell of the residence of Director (Trg), banged the exit door besides indulging in vulgar abuses towards Director (Trg) and her family. Apart from that, Ms. Bhatia is also found to be harassing other residents in the campus using abusive and threatening language. Apart from that, Joint Secretary (Trg) has reported about the criminal conduct of Ms. Bhatia within the Training Institute premises especially her dealing and approach towards SSB guards on security duty in the campus on various occasions. Ms. Bhatia uses every available opportunity to threaten the guards on duty by use of abusive and filthy language. Similar approach is also taken by Ms. Bhatia towards all other staff members. Ms. Bhatia also enters into various residential blocks in the campus occupied by subordinate staffs and their families as well as found to be indulging in use of highly objectionable vulgar and abusive language in front of the ladies and the children. Ms. Bhatia has created an atmosphere of fear in the campus and juniors and their family members are suffering daily."

10. A perusal of the FIR reveals three sets of allegations, firstly that on 12th October, 2009 at about 0417 hours Ms. Bhatia moved towards the house

of Joint Secretary (Trg) and started hitting the official vehicle parked outside her house being HR 26 AR 8183, Tata Indigo, GLS, silver grey with an iron/wooden rod thereby breaking both side/rear view mirrors and front wind screen wipers. She also tried to break the side window glasses but failed, leaving few scratches on the glass. For this offence Section 427 IPC was invoked by the concerned police station however the same is a non- cognizable offence.

11. The second set of allegations is that on the night of October 09, 2009 around 2345 hours Ms. Bhatia trespassed into the residence of Director (Trg.) She did not open the door and remained in the front Verandah and hurled vulgar and threatening abuses. Thus, Sections 451 IPC was invoked.

12. Sector 451 IPC which is cognizable offence reads as under:-

"451. House-trespass in order to commit offence punishable with imprisonment.--Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.

13. Thus, the two essential ingredients of Section 451 IPC are house trespass and in order to commit an offence punishable with imprisonment. On the face of the FIR itself even assuming and accepting the contention of learned Additional Solicitor General that the verandah which is not within the four walls of a house would be an integral part of the house, the trespass has to be for the purpose of committing any offence punishable with imprisonment which is missing in the present case because the allegations pursuant to the alleged trespass is that the petitioner hurled vulgar and

obscene abuses. Hurling of vulgar and obscene abuses is not an offence much less a cognizable offence as defined in the IPC.

14. The issue whether hurling abuses qualifies as an actionable claim came up before the Calcutta High Court in the decision reported as (1899) ILR 26 Cal 653 wherein rendering the opinion on behalf of the majority, the Chief Justice held that it was not an actionable claim. It was noted-

"8. It is difficult to suppose that the causing of mental distress and pain can per se be actionable. Mental condition of this sort may obviously arise from causes other than abuse or insult, and a moment's reflection makes it clear that the proposition thus widely expressed would lead to manifest absurdities. For instance if A and B are sitting in a room together, and A loses his temper, and uses insulting and abusive language towards B, whose feelings are wounded, B may bring an action against A, or if A uses such language of some relation or friend of B, which equally wounds B's feelings, an action will lie. Such a view does not commend itself to one's common sense, nor is it reasonable.

9. It is said that the reported decisions of the Indian Courts, and in particular of this Court, support the position that, to cause mental pain and distress by insult or abuse, as distinct from defamation, is actionable, and a large number of authorities have been cited to us as establishing this. It appears to us, however, unnecessary to discuss these cases in detail. Many of them are so inadequately reported that it is impossible to discover what was the state of facts then under consideration.

13. We would, therefore, answer the question embodied in the reference by expressing the view that abusive and insulting language, not amounting to defamation, is not actionable. Section 95 of the Penal Code indicates that harm of a trumpery nature, i.e., "so slight that no person of ordinary sense and temper would complain of it," is not to be treated as an offence. If mere vulgar abuse, uttered in a moment of anger, abuse to which no person of ordinary sense and temper would attach the slightest importance, is, if it cause mental distress, to afford a ground of action, it is

lamentable to think to what an alarming extent the floodgates of litigation would, in this country, become open. We are but little disposed to favour any such view. On the contrary we agree with the expression of opinion of Pontifex, J., in the case of Nil Madhub Mookerjee v. Dookeeram Khottah (1874) 15 B.L.R. 161 that actions for verbal slander ought not to be encouraged."

15. Learned counsels for the Respondents have not been able to point out any provision in the IPC or any other enactment which provides that abusing is an offence punishable with imprisonment. Since no criminal offence which was liable to be punished with imprisonment was committed by the petitioner at the time of alleged house trespass, ingredients of Section 451 IPC are not attracted and were, thus wrongly invoked.

16. As regards the third allegation that the Director(Training) found garbage outside the front door of her house at around 7.00 hrs. on 12 th October, 2009, Sections 268 IPC has been invoked which defines public nuisance however does not prescribe any punishment whatsoever. Further there is no averment in the FIR nor anything found during investigation that the garbage was thrown by Ms. Bhatia.

17. Further there is no allegation in the entire FIR that Ms. Bhatia assaulted anyone causing hurt to any person thereby permitting invocation of Section 323 IPC which is also a non-cognizable offence if made out. Thus, on the allegations in the FIR the only offence made out is Section 427 IPC which is a non-cognizable offence.

18. Faced with the situation, learned Additional Solicitor General further contends that on the face of the allegations in the FIR even offence under Section 506 IPC is made out though not invoked. The allegations in this regard are that Ms. Bhatia while hurling abuses threatened that what she had

done was nothing and would knock off their heads if required. Thus the threat even if made out was not absolute but if required i.e. contingent. Thus even the ingredients of Section 506 IPC are not attracted.

19. The legal position as to whether the police can register FIR and proceed to investigate the same for a non-cognizable offence is well settled. Section 155 Cr.P.C. permits the police to investigate non-cognizable offence only pursuant to order of learned Magistrate having power to try such offence. Admittedly in the present case, no such order was sought for or passed by the learned Magistrate.

20. The Supreme Court and this Court in a number of decisions have held that where the police registers an FIR and investigates non-cognizable offences, the investigation and the FIR are liable to be quashed. In the decision reported as (1996) 11 SCC 557 Keshav Lal Thakur Vs. State of Bihar while dealing with a FIR registered for offence punishable under Section 31 of the Representation of the People Act, 1950, it was held-

"3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non-cognizable and therefore the police could not have registered a case for such an offence under Section 154 CrPC. Of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155(2) CrPC but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the Explanation

to Section 2(d) CrPC, which defines 'complaint', the police is entitled to submit, after investigation, a report relating to a non- cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates investigation into a cognizable offence -- unlike the present one -- but ultimately finds that only a non-cognizable offence has been made out."

21. This Court in the decision reported as (78) 1999 DLT 2 Mam Chand & Ors. Vs. State held-

"10. I do not find much substance in the contention urged on behalf of the State that since the FIR was registered under section 324 IPC and the said offence being cognizable, there was no bar in the police investigating the case. Once, on the circumstances prevalent at the time of registration of the case, it is evident that a non-cognizable offence, is not made out, permitting the police to first register a cognizable offence, carry out investigations and ultimately if it is found that a cognizable offence was not made out, would be giving a long rope to the police. The nature of the offence is to be gathered from the facts available at the relevant time and if there is a doubt as to whether a cognizable offence is made out or not, the police can report is to the Magistrate concerned and obtain appropriate orders. On the one hand, no prejudice will be caused to the prosecution by adopting a safer course and on the other it will eliminate the possibility of misuse of power by the police. This approach will also be in consonance with the spirit and intention of section 155 of the Code."

22. Even in the decision reported as (2000) 86 DLT 609 Kanshi Ram Vs. State this Court held-

"12. As regards the offence punishable under Section 323 IPC, it has come in the statements of Isran Ahmed, Anil Sharma and other witnesses that the petitioner had assaulted the complainant Isran Ahmed causing simple injuries to him. Learned Senior Counsel for

the petitioner contended that the offence punishable under Section 323 IPC is a non cognizable offence and the police investigated the offence without obtaining the prior permission of the Magistrate concerned and so the investigation conducted by the police is violative of the provisions of sub section (2) of Section 155 Cr.P.C. In my opinion, this argument of the learned counsel so far as it goes, is correct. It is worth mentioning that the FIR lodged by the complainant Isran Ahmed does not disclose the commission of any cognizable offence. On the contrary, it discloses the commission of a non-cognizable offence, i.e., an offence punishable under Section 323 I.P.C. Sub-Section (2) of Section 155 Cr.P.C. debars a police officer from investigating a non-cognizable offence without the order of a Magistrate having power to try such case. Where the FIR discloses a cognizable as well as non-cognizable offence, the police is not debarred from investigating any non-cognizable offence which may arise on the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence. But if the information discloses only a non-cognizable offence, the police officer cannot investigate the offence without the requisite sanction under sub-Section (2) of Section 155 Cr.P.C. Admittedly, no permission had been taken by the police to investigate into the offence punishable under Section 323 I.P.C. In the instant case, it appears that in order to circumvent the mandatory provision of sub-Section (2) of Section 155 Cr.P.C., the case was registered under Sections 147/149/506/323 IPC at the police station. In this view of the matter, the police cannot be allowed to flout the mandatory provision of sub-Section (2) of Section 155 Cr.P.C. That being so, the investigation conducted in violation of the mandatory provision of sub section (2) of Section 155 Cr.P.C. bore the stamp of illegality. Consequently, the petitioner's prosecution for the offence punishable under Section 323 IPC is liable to be quashed.

23. The present is not a case where FIR was registered for cognizable offence and later during investigation commission of only non-cognizable offences were found out in which situation the police would have been

within its right to have investigated the offence and file a charge sheet which charge sheet was to be treated as a complaint as per the Explanation to Section 2(d) Cr.P.C. as held by the Division Bench of this Court in Crl.M.C. 2042/2001 titled N.K. Sharma Vs. State decided on 20th September, 2002. In the present case the allegations in the FIR only disclosed commission of non- cognizable offences. Thus, the FIR was registered and investigated contrary to the provisions of Sections 154 and 155(2) Cr.P.C.

24. Since the above noted FIR and the proceedings pursuant thereto are liable to be quashed on the issue noted above itself and this Court is not required to further delve into the issue whether the above noted FIR was a result of mala fide exercise of power or the other grounds as agitated by the petitioner, this Court is not going into those issues. Suffice it is to note from the allegations in the FIR itself that the provocations to Ms. Bhatia could not be ruled out in view of the fact that the FIR was registered in the official capacity by the complainant putting on record the grievances of a number of individuals and is being pursued institutionally.

25. Consequently FIR No.156/2009 under Sections 451/323/268/427 IPC registered at PS Sector 18, Gurgaon and proceedings pursuant thereto are quashed.

(MUKTA GUPTA) JUDGE DECEMBER 21, 2016 'v mittal'