Manmohan Sharma & Ors. vs State & Anr.
2019 Latest Caselaw 6286 Del

$~55
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 06.12.2019
+      CRL.M.C. 4060/2019 & RL.M.A.33702/2019 & 36891/2019
       MANMOHAN SHARMA & ORS.                            ..... Petitioners
                         Through      Mr. Meet Malhotra, Sr. Adv with
                                      Mr. Kushank Singh, Mr. Abhinav,
                                      Mr. Yashovardhan & Mr. Syed
                                      Massod, Advocates
                         versus
       STATE & ANR.                                     ..... Respondents
                         Through      Mr. K K Ghai, APP for State
                                      SI Dharmender, PS Vasant Kunj (N)
                                      Mr. Sunny Sharma & Mr. Rahul
                                      Gupta, Advs. for R-2 with R-2 in
                                      person
       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                         J U D G M E N T (ORAL)

1. Vide the present petition, the petitioners seek directions thereby to

quash the FIR No.576/2016 dated 02.12.2016, registered at P.S. Vasant

Kunj North, Delhi for the offences punishable under Sections 323/

341/354/354B/509/34 IPC and consequent proceedings emanating

therefrom.

2. The case of the petitioners is that they are residents of Sector-A,

Pocket-B & C, Vasant Kunj, New Delhi and respondent no.2 is the

complainant in the FIR mentioned above, filed against the petitioners. As

per the FIR, it is alleged that on 06.11.2016 at around 08:30 AM, the

respondent-2 along with her staff went to supervise the distribution of

magazines in Vasant Kunj. Her staff member, namely; Deepak Chand was

stopped by the guard at the gate of Pocket A Sector B & C. Accordingly,

she asked the guard as to why the staff was not being allowed to distribute

the magazines. The guard in the meantime called some persons to the spot.

Thereafter, her staff was manhandled by all the persons present there and

they snatched his phone away and threw it on the ground. When she

protested, she was also manhandled and assaulted by all the persons present

there, including the petitioners.

3. Mr. Meet Malhotra, learned Senior Advocate appearing for the

petitioners submits that without appreciating the background and the

inherent improbable nature of the accusations, an FIR was registered and a

chargesheet was filed subsequently for the offences punishable under

Sections 323/341/354/354B/509/34 of IPC. The charge sheet does not even

prima facie disclose the commission of cognizable offence. However,

despite the same, Ld. Metropolitan Magistrate chose to take cognizance of

the offences as detailed vide order dated 19.09.2018. Moreover, even if the

contents of the charge sheet as well as the FIR are taken at face-value, they

do not contain any direct allegations of cognizable offence which has been

committed by them. FIR is completely false and motivated to silence the

petitioners who have always been vocal about opposing the distribution of

"Yellow Pages" in the colony by the respondent No.2 and/or her employees

or agents.

4. It is further submitted that respondent no.2, for a very long time, has

been indulging in a lot of vexatious correspondence/ complaints to the

concerned police authorities with a view to harass the petitioners so that the

petitioners concede to her illegally untenable demands of supplying /

distributing the magazines in the Vasant Kunj area. The respondent no.2 had

also filed a Writ Petition (Civil) bearing No. 1101/2017, before this Court

wherein she prayed for an order that her magazines are distributed in the

entire Vasant Kunj area and areas in its vicinity, without any hassle. The

respondent no.2, in the Writ made the following prayer:-

"Issue appropriate writ in the nature of mandamus directing the respondents to allow the free circulation and distribution of the monthly publication of the petitioner's "Vasant Kunj Informer and Shopper" amongst residents of all sectors of Vasant Kunj every month, unhindered, without any objection or complaint."

5. The said petition was disposed of vide order dated 05.04.2019 and the

relevant portion thereof is reproduced hereunder:-

"8. ... the present petition is allowed and the petitioner is permitted to circulate and distribute the monthly publication in question without any hindrance from the respondents. It is further clarified that in the event that there is any complaint regarding the conduct of the persons distributing the said publication, the respondents are not precluded from filing an appropriate complaint with the concerned authorities.

9. If any of the residents communicates to the petitioner that he/she does not want to receive the said publication, then the petitioner shall honour the said request."

6. Learned senior counsel submits that the present dispute is nothing but

a civil dispute which has been given the colour of criminality in order to

wrongly gain profit from a civil disagreement. The present proceedings are

nothing but misuse and abuse of the process of Court which attract the

inherent power of the High Court under Section 482 of the Cr.P.C.

7. To strengthen his arguments, learned senior counsel has relied upon

the decision of the Hon'ble Supreme Court of India in the landmark case of

Vineet Kumar and Ors. vs. State of U.P. and Ors. (31.03.2017-SC):

MANU/SC/0351/2017 wherein the Hon'ble Court pleased to hold:

" Inherent power given to the High Court under Section 482 Code of Criminal Procedure is with the purpose and

object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there is material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction Under Section 482 Code of Criminal Procedure to quash the proceeding under Category 7 as enumerated in the case of State of Haryana v. Bhajan Lal, which is to the following effect:

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

8. He further submits that since the instant proceedings have been

initiated only for seeking personal vendetta and to mount pressure on the

petitioners, therefore, it is liable to be quashed. He has placed reliance on

Inder Mohan Goswami and Ors. vs. State of Uttaranchal and Ors.

(09.10.2007 - SC) : MANU/SC/7999/2007: wherein it was held that "the

court must ensure that criminal prosecution is not used as an instrument of

harassment or for seeking private vendetta or with an ulterior motive to

pressure the accused." He thus submits that the continuance of criminal

proceedings against the petitioners would not serve any purpose, other than

to cause severe hardship and unnecessary prejudice to them in the matter

and will have to face the ordeal of facing the trial unnecessarily.

9. Learned counsel lastly but strongly submits that in the handwritten

complaint dated 06.11.2016 made by the respondent no.2, she has nowhere

mentioned about the alleged outraging of her modesty by the petitioners,

whereas, in the complaint filed subsequently under Section 200/202 Cr.P.C.

she has stated that while her field staff namely Deepak Chand was trying to

make video recording of the entire episode, the petitioners started hurling

abuses on him and manhandled him to snatch his mobile. The relevant

portion of the said complaint reads as under:-

"On 6.11.2016 at around 8.30 a.m. the complainant had gone to supervise the distribution of the magazine at the locality at Sector A, pocket B & C, Vasant Kunj along with her

distribution/field staff. One security guard of Sector A, pocket B & C present there at the entry gate namely Surinder stopped her staff and did not allow them entry, stating that he has been so instructed by the office bearers of the RWA to not allow the distribution of yellow pages magazine in the complex and not allow entry to the staff engaged by the yellow pages magazine. Upon query as to the reason of this obstruction when they were carrying police verification certificates and were not in a manner disturbing the peace of the residents, the guard Surinder hurled abuses at the field staff Deepak Chand and pushed him away. Having faced such hostile action at the hands of the security guard, the field staff Deepak Chand immediately informed the complainant who was going to drop the other field staff to another location. The complainant returned to the spot and again asked the reason why her magazine was stopped from being distributed. Surinder, while using abusive language with her also, stated that "Geetha Madam" has instructed him to not allow the distribution of yellow pages magazine in the complex. Surinder telephonically called few residents to the entry gate and within a matter of 2- 3 minutes, one R. C. Sridhar, Manmohan Sharma, Geetha Viveknandan and Amit Agarwal, along with 2-3 more persons, came to the entry gate and started hurling abuses at the complainant as to how they had dared to come there and said that they will not allow distribution of this magazine unless a monthly payment of Rs 10,000/- is made to them. "We need

money for running our RWA" one of them stated. The RWA President Mrs. Geetha Vivekanandan told the complainant that she was clearly informed by Mr. Bhanu Bishnoi, Chairman of the Federation of RWAs of Vasant Kunj, that money has to be paid by the yellow pages on a monthly basis for distribution. Facing this extortionist attitude at the hands , of the accused persons, the complainant reminded Mrs. Geetha that at the Federation Meeting held on 24th of July, 2016, Mr. Bishnoi had clearly stated in the presence of the 50- 60 odd members that there was no question of any money being demanded by any RWA for the distribution of the yellow pages and only the gate passes would be made by whichever RWA that required the same. However, Mrs. Geetha did not pay heed to the complainant and insisted that extra money needs to be paid for allowing entry for distribution in the sector. The complainant reminded Mrs. Geetha that in pursuance with the requirement set forward by her RWA to get passes made of Sec A, pocket B & C had already taken a sum of Rs.1,200/- on 04.08.2016 vide Receipt No. 7723 for issuing annual gate passes for six staff, which the RWA had not issued even after several requests, hence their coming for distribution' was justified on the basis of the receipt. .The complainant also tried to reason that any money, other than that for the gate pass, which they were asking for distribution of this magazine is outrightly illegal as they have no justification for hindering this bonafide occupation and putting

such a condition for distribution of this magazine as it is only meant for the residents of the locality giving them the contact details of service providers and other household and daily facilities and similar useful information which as stated in our constitution is a basic right - the right to information and in no manner should be obstructed as it has no concern with the RWAs and the distribution of this monthly magazine is done in a very peaceful manner within a period of one to two hours only once in a month by staff who have undergone due police verification and Delhi Police .has issued Police Clearance Certificate to all the staff who are engaged in this distribution. While this conversation was going on with the accused, the accused tried to shout down the complainant, they suddenly in a split second rushed to the side to pounce Deepak Chand who was trying to make video recording of the entire episode and started hurling abuses on him and manhandled him to snatch his mobile. The complainant went to his rescue and tried to reason with the accused not to hurt the staff. The accused persons without even caring to reason or a dialogue resorted to most uncivilized and criminal behaviour. Accused no. 2 at the instigation of accused no.3 pushed the complainant by hitting on her chest and shoulder and as a result she fell on a car, as a result of which the complainant blacked out for a moment, kept requesting them to "give her a moment" to gain her balance, but they did not stop. Accused no.2 and 3 snatched the phone from the field staff Deepak Chand and

broke the same. However when the complainant tried to gain balance, accused no. 1 and 2 pushed her away holding her arm and threatened her that she should not be seen in the vicinity lest she might have to face dire consequences for the same. As a result of this criminal assault the kurta worn by the complainant got the neck. They threatened to implicate the staff in theft and proclaim them as "terrorists." The field staff Mr Peepak Chand who came forward to help the complainant was also roughed up by the accused persons mercilessly. They got into a verbal abusive fight with a senior citizen and resident Mrs. Achla Bhandari who came forward to help the complainant. The complainant, on gaining composure, immediately called police at no. 100 and in pursuance to her call one constable Mr. Paramveer and later Mr Deen Dayal, ASI came to the spot. The police personnel after coming to the spot did not take any action against the accused persons nor did they care to take the complainant to the hospital for immediate medical attention as according to them, there was "no bloodshed." All they said was the complainant could write and give in a complaint to the local police on her own accord. The complainant filed a complaint at the local police station. The police has failed to take action as per legal norms and duty cast upon them and have sided with the accused persons and has failed to take action against culprits as per law."

10. This Court specifically asked the complainant, who is present in

Court, as to why in the complaint dated 06.11.2016 there was no whisper

about outraging of her modesty by the petitioners? To which, replied that

she had filed a written complaint on 06.11.2016 about the alleged

incident and thereafter she checked that her shirt was torn and thus, she

mentioned the aforesaid facts in her subsequent complaint filed under

Section 200/202 Cr.P.C. before the Metropolitan Magistrate. Further

submits that she is not a lawyer and is only a journalist and is therefore,

not aware as to what are the contents of outraging of modesty.

11. It is not in dispute that the charge sheet has been filed by the police

and statements of Ct. Paramveer and ASI Deen Dayal have been recorded

under Section 161 Cr.P.C. wherein they stated that the complainant had not

told them about any alleged outraging of her modesty by the petitioners.

12. The fact remains that, in the written complaint dated 06.11.2016, the

complainant had specifically mentioned about the incident that took place,

i.e., manhandling of her staff by a guard and two-three other persons and

despite the President of the said area being present at that time, did not

intervene to protect them. Thus, incident had taken place, accordingly, FIR

has been lodged.

13. However, undisputed fact is that complaint was filed by the

complainant/respondent no.2 with the police station Vasant Kunj dated

06.11.2016 about the alleged incident, but there is no whisper about the

allegation of outraging the modesty of the complainant by the petitioners

and admittedly, the complaint was lodged after 1½ hours of the incident.

The complainant is qualified journalist. Had any incident happended

regarding her womanhood, she would have mentioned that fact very strongly

at the first instance i.e. in complaint dated 06.11.2016, but there is no

whisper of such allegations. Moreover, her alleged „torn shirt‟ mentioned in

complaint filed under Section 200 Cr.P.C. has not been seized by the police.

In absence of same, offence under Section 354/354-B cannot be proved.

14. Accordingly, I hereby quash only sections 354/354B IPC against the

petitioners. However, the trial shall continue against the petitioners under

the rest of sections.

15. With these observations, the present petition stands disposed of along

with the pending applications.

(SURESH KUMAR KAIT) JUDGE DECEMBER 06, 2019 sm