Himachal Pradesh High Court
Rakesh Kumar Bansal vs State Of H.P. And Others on 9 July, 2024
Neutral Citation No. ( 2024:HHC:4780 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No.825 of 2023
.
Reserved on: 27.06.2024
Date of Decision: 09.07.2024.
Rakesh Kumar Bansal ...Petitioner
Versus
State of H.P. and others
Coram
r to ...Respondents
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. P.P. Chauhan, Advocate
(through VC) with Ms. Tara Devi,
Advocate.
For the Respondents : Mr Jitender Sharma, Additional
Advocate General, for respondents
No.1 to 3-State.
Mr. Ajay Kumar Dhiman, Advocate,
for respondent No.4.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
quashing of FIR No. 95 of 2023, dated 9.5.2023, registered under
Section 354-A of IPC and Section 7 of the Protection of Children
from Sexual Offences Act (POCSO Act) with Police Station Paonta
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Sahib, District Sirmour, H.P. (The parties shall hereinafter be
referred to in the same manner as they were arrayed before the
.
learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present
petition are that the Principal of Government Senior Secondary
School received a complaint regarding the sexual harassment of
a girl. The matter was referred to the Sexual Harassment
Committee, which called the girl and her parents; however, they
did not appear before the Committee and the Committee was
unable to do anything. The matter involved the sexual
harassment of a girl; therefore, a request was made to the police
to take action as per law.
3. The police conducted the investigation and went to
the school. The statement of the victim was recorded and the
accused was arrested. The victim made a statement under
Section 164 of Cr.P.C. The female students also mentioned their
views against the accused. 21 girls had objected to the behaviour
of the accused. The police recorded the statements of about 20
girls, who stated that the accused used to utter double-meaning
words and touch the girls on their backs, cheeks etc. which made
them uncomfortable. Hence, the challan was prepared and
presented before the Court for the commission of offences
.
punishable under Section 354-A of IPC and Section 10 of the
POCSO Act.
4. The petitioner/accused filed the present petition
asserting that he was falsely implicated. The Principal
misunderstood the tenor of the complaint and referred the
matter to the Chairperson of the Sexual Harassment Committee
to take further action. The Sexual Harassment Committee also
did not take any action in the matter and referred it back to the
principal. The petitioner/accused has been serving in the
Department for 22 years and has won many awards from various
institutions. No offence is made out against the petitioner even if
the allegations in the FIR are taken to be true. Continuing with
the criminal proceedings will amount to gross abuse of the
judicial process. Therefore, it was prayed that the present
petition be allowed and the FIR be quashed.
5. I have heard Mr P.P. Chauhan, learned Counsel
through video-conferencing with Ms Tara Devi, learned counsel
for the petitioner, Mr Jitender Sharma, learned Additional
Advocate General, for respondents No.1 to 3 and Mr Ajay Kumar
Dhiman, learned counsel for respondent No.4.
.
6. Mr. P.P. Chauhan, learned Counsel for the petitioner
submitted that the initial complaint made to the Principal did not
disclose the commission of any cognizable offence. There was
not even a mention of sexual harassment and the principal erred
in referring the complaint to the Sexual Harassment Committee.
The Sexual Harassment Committee also did not carry out any
investigation and the principal referred the matter to the police.
The allegations in the complaint even if accepted to be correct do
not fulfill the ingredients of Section 7 of the POCSO Act. The
continuation of the proceedings amounts to abuse of the process
of the Court. Therefore, he prayed that the present petition be
allowed and the FIR be quashed.
7. Mr. Jitender Sharma, learned Additional Advocate
General for respondents No.1 to 3-State submitted that the police
found after investigation that the accused had sexually assaulted
the girl students. The truthfulness or otherwise of the allegations
is not to be seen at this stage but is to be seen after the
conclusion of the trial. The allegations in the charge sheet
constitute the commission of an offence punishable under
Section 7 of the POCSO Act. Therefore, he prayed that the present
.
petition be dismissed.
8. Mr. Ajay Kumar Dhiman, learned counsel for
respondent No.4 adopted these submissions of learned
Additional Advocate General and prayed that the present petition
be dismissed.
9. I have given considerable thought to the submissions
at the bar and have gone through the records carefully.
10. The law regarding the exercise of jurisdiction under
Section 482 of Cr.P.C. was considered by the Hon'ble Supreme
Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it
was observed: -
9. The law with regard to the exercise of jurisdiction under
Section 482 of Cr. P.C. to quash complaints and criminal
proceedings has been succinctly summarized by this Court
in the case of Indian Oil Corporation v. NEPC India Limited
(2006) 6 SCC 736: 2006 INSC 4521 after considering the
earlier precedents. It will be apposite to refer to the
following observations of this Court in the said case, which
read thus:
"12. The principles relating to the exercise of jurisdiction
under Section 482 of the Code of Criminal Procedure to
quash complaints and criminal proceedings have been
stated and reiterated by this Court in several decisions. To
mention a few--Madhavrao Jiwajirao
Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC
692: 1988 SCC (Cri) 234], State of Haryana v. Bhajan
Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], Rupan Deol
.
Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194: 1995 SCC
(Cri) 1059], Central Bureau of Investigation v. Duncans Agro
Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri) 1045], State
of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164: 1996 SCC
(Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC
259: 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P)
Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269: 2000 SCC (Cri)
615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000)
4 SCC 168: 2000 SCC (Cri) 786], M. Krishnan v. Vijay
Singh [(2001) 8 SCC 645: 2002 SCC (Cri) 19] and Zandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1
SCC 122 : 2005 SCC (Cri) 283]. The principles, relevant to our
purpose are:
(i) A complaint can be quashed where the allegations
made in the complaint, even if they are taken at their
face value and accepted in their entirety, do not
prima facie constitute any offence or make out the
case alleged against the accused.
For this purpose, the complaint has to be examined
as a whole, but without examining the merits of the
allegations. Neither a detailed inquiry nor a
meticulous analysis of the material nor an
assessment of the reliability or genuineness of the
allegations in the complaint is warranted while
examining prayer for quashing a complaint.
(ii) A complaint may also be quashed where it is a
clear abuse of the process of the court, as when the
criminal proceeding is found to have been initiated
with mala fides/malice for wreaking vengeance or to
cause harm, or where the allegations are absurd and
inherently improbable.
(iii) The power to quash shall not, however, be used
to stifle or scuttle a legitimate prosecution. The
power should be used sparingly and with abundant
caution.
(iv) The complaint is not required to verbatim
.
reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is laid in
the complaint, merely on the ground that a few
ingredients have not been stated in detail, the
proceedings should not be quashed. Quashing of the
complaint is warranted only where the complaint is
so bereft of even the basic facts which are necessary
for making out the offence.
(v.) A given set of facts may make out : (a) purely a
civil wrong; (b) purely a criminal offence; or (c) a
civil wrong as also a criminal offence. A commercial
transaction or a contractual dispute, apart from
furnishing a cause of action for seeking remedy in
civil law, may also involve a criminal offence. As the
nature and scope of a civil proceeding are different
from a criminal proceeding, the mere fact that the
complaint relates to a commercial transaction or
breach of contract, for which a civil remedy is
available or has been availed, is not by itself a ground
to quash the criminal proceedings. The test is
whether the allegations in the complaint disclose a
criminal offence or not.
11. Similar is the judgment Maneesha Yadav v. State of
U.P., 2024 SCC OnLine SC 643, wherein it was held: -
12. We may gainfully refer to the following observations
of this Court in the case of State of Haryana v. Bhajan
Lal1992 Supp (1) SCC 335: 1990 INSC 363:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the
following categories of cases by way of illustration
.
wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise
to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or
rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first
information report or the complaint, even if
they are taken at their face value and accepted in
r their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation
is permitted by a police officer without an order
of a Magistrate as contemplated under Section
155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
.
the accused.
(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the
concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
r 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.
103. We also give a note of caution to the effect
that the power of quashing a criminal
proceeding should be exercised very sparingly
and with circumspection and that too in the
rarest of rare cases; that the court will not be
justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and
that the extraordinary or inherent powers do not
confer an arbitrary jurisdiction on the court to
act according to its whim or caprice."
12. The police conducted the investigation and recorded
the statements of the victim and other girls. The victim stated
that the accused caught her by her neck. Another girl stated that
the accused used to touch the back and the cheek of the girls. One
girl stated that the accused used to utter double-meaning words.
One girl stated that the accused used to touch the girls in the
.
class inappropriately. One girl stated that the accused used to say
that he was very sexy and would not age. Another girl stated that
the girls are doing whatever is to be done after the marriage. He
used to ask the girls whether they knew how the children were
born.
13. The accused was a teacher of physics and had no
concern with reproduction. Many girls stated that he used to
touch the girls inappropriately on their back, cheek and neck. He
used to comment about himself and the dress of the girls. These
acts constitute the commission of an offence punishable under
Section 7 of the POCSO Act, which provides punishment for
physical contact with a minor with sexual intent. It was laid
down by the Hon'ble Supreme Court in Attorney General v. Satish,
(2022) 5 SCC 545: 2021 SCC OnLine SC 1076 that any act involving
physical contact done with sexual intent would attract Section 7
of the POCSO Act. It was observed:
"34. Now, from the bare reading of Section 7 of the Act,
which pertains to the "sexual assault", it appears that it is
in two parts. The first part of the section mentions about
the act of touching the specific sexual parts of the body
with sexual intent. The second part mentions about "any
other act" done with sexual intent which involves physical
contact without penetration. Since the bone of contention
.
is raised by the learned Senior Advocate Mr Luthra with
regard to the words "touch", and "physical contact" used
in the said section, it would be beneficial first to refer to
the dictionary meaning of the said words.
35. The word "touch" as defined in the Oxford Advanced
Learner's Dictionary means "the sense that enables you to
be aware of things and what are like when you put your
hands and fingers on them". The word "physical" as
defined in the Advanced Law Lexicon, 3rd Edn., means "of
or relating to body...." and the word "contact" means "the
state or condition of touching; touch; the act of
touching...". Thus, having regard to the dictionary
meaning of the words "touch" and "physical contact", the
Court finds much force in the submission of Ms Geetha
Luthra, learned Senior Advocate appearing for the
National Commission for Women that both the said words
have been interchangeably used in Section 7 by the
legislature. The word "touch" has been used specifically
with regard to the sexual parts of the body, whereas the
word "physical contact" has been used for any other act.
Therefore, the act of touching the sexual part of the body
or any other act involving physical contact, if done with
"sexual intent" would amount to "sexual assault" within
the meaning of Section 7 of the POCSO Act.
36. There cannot be any disagreement with the
submission made by Mr Luthra for the accused that the
expression "sexual intent" having not been explained in
Section 7, it cannot be confined to any predetermined
format or structure and that it would be a question of fact,
however, the submission of Mr Luthra that the expression
"physical contact" used in Section 7 has to be construed as
"skin-to-skin" contact cannot be accepted. As per the rule
of construction contained in the maxim "ut res magis
valeat quam pereat", the construction of a rule should give
effect to the rule rather than destroying it. Any narrow and
pedantic interpretation of the provision which would
defeat the object of the provision, cannot be accepted. It is
also needless to say that where the intention of the
.
legislature cannot be given effect to, the courts would
accept the bolder construction for the purpose of bringing
about an effective result. Restricting the interpretation of
the words "touch" or "physical contact" to "skin-to-skin
contact" would not only be a narrow and pedantic
interpretation of the provision contained in Section 7 of
the POCSO Act, but it would lead to an absurd interpretation
of the said provision. "Skin-to-skin contact" for
constituting an offence of "sexual assault" could not have
been intended or contemplated by the legislature. The very
object of enacting the POCSO Act is to protect children from
sexual abuse, and if such a narrow interpretation is
accepted, it would lead to a very detrimental situation,
frustrating the very object of the Act, inasmuch as in that
case touching the sexual or non-sexual parts of the body
of a child with gloves, condoms, sheets or with cloth,
though done with sexual intent would not amount to an
offence of sexual assault under Section 7 of the POCSO Act.
The most important ingredient for constituting the
offence of sexual assault under Section 7 of the Act is the
"sexual intent" and not the "skin-to-skin" contact with
the child.
37. At this juncture, it may also be beneficial to refer to the
observations made by the foreign courts in the judgments
cited by Ms Geetha Luthra, wherein the said courts while
interpreting analogous provisions as prevalent in such
countries, have held that "skin-to-skin contact" is not
required to constitute an offence of sexual assault. It is not
the presence or lack of intervening material which should
be focused upon, but whether the contact made through
the material, comes within the definition prescribed for a
particular statute, has to be seen. Of course, the judgments
of the said courts proceed on the interpretation arising out
of the terms defined in the provisions contained in the
legislations concerned and are not pari materia to the
language of Section 7 of the POCSO Act, nonetheless, they
would be relevant for the purpose of interpreting the
expression "touch" and "sexual assault".
.
In R. v. H [R. v. H, (2005) 1 WLR 2005 (CA)], the Court of
Appeal while interpreting the word "touching" contained
in Section 3 of the Sexual Offences Act, 2003 as in force in
the UK, observed that the touching of clothing would
constitute "touching" for the purpose of said Section 3.
Similarly, in State v. Phipps [State v. Phipps, 442 NW 2d 611
(Iowa Ct App 1989)] the Court of Appeals of Iowa held that
a lack of skin-to-skin contact alone does not as a matter
of law put the defendant's conduct outside the definition
of "sex act" or "sexual activity", which has been defined
in Section 702.17 of the Iowa Code.
38. The act of touching any sexual part of the body of a
child with sexual intent or any other act involving physical
contact with sexual intent, could not be trivialised or held
insignificant or peripheral so as to exclude such act from
the purview of "sexual assault" under Section 7. As held by
this Court in Balram Kumawat v. Union of India [Balram
Kumawat v. Union of India, (2003) 7 SCC 628], the law
would have to be interpreted having regard to the subject
matter of the offence and to the object of the law it seeks
to achieve. The purpose of the law cannot be to allow the
offender to sneak out of the meshes of law.
39. It may also be pertinent to note that having regard to
the seriousness of the offences under the POCSO Act, the
legislature has incorporated certain statutory
presumptions. Section 29 permits the Special Court to
presume, when a person is prosecuted for committing or
abetting or attempting to commit any offence under
Sections 3, 5, 7 and Section 9 of the Act, that such person
has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is proved.
Similarly, Section 30 thereof permits the Special Court to
presume for any offence under the Act which requires a
culpable mental state on the part of the accused, the
existence of such mental state. Of course, the accused can
take a defence and prove the fact that he had no such
mental state with respect to the act charged as an offence
in that prosecution. It may further be noted that though as
.
per sub-section (2) of Section 30, for the purposes of the
said section, a fact is said to be proved only when the
Special Court believes it to exist beyond reasonable doubt
and not merely when its existence is established by a
preponderance of probability, the Explanation to Section
30 clarifies that "culpable mental state" includes
intention, motive, knowledge of a fact and the belief in, or
reason to believe a fact. Thus, on the conjoint reading of
Sections 7, 11, 29 and 30, there remains no shadow of
doubt that though as per the Explanation to Section 11,
"sexual intent" would be a question of fact, the Special
Court, when it believes the existence of a fact beyond
reasonable doubt, can raise a presumption under Section
30 as regards the existence of "culpable mental state" on
the part of the accused."
14. In the present case, the physical contact made by the
accused with the girls coupled with the words uttered by him can
only lead to one inference that the touch was with sexual intent.
Merely because the informant had not mentioned the ingredients
of the commission of offence initially in the complaint made to
the Principal cannot lead to an inference that no such facts had
taken place. The girls have made statements showing that the
accused used to touch them inappropriately and the result of the
investigation cannot be ignored at this stage.
15. It was submitted that the accused had won many
awards from many different institutions. This submission will
not help the petitioner, as the Court is not concerned with the
capability of the petitioner as a teacher but with the allegations
.
of sexual assault made against him.
16. It was laid down by the Hon'ble Supreme Court in
Priyanka Jaiswal vs. State of Jharkhand, 2024 SCC OnLine SC 685
that the Court exercises extra-ordinary jurisdiction under
Section 482 of Cr.P.C. and cannot conduct a mini-trial or enter
into an appreciation of evidence of a particular case. It was
observed:-
"13. We say so for reasons more than one. This Court in
catena of Judgments has consistently held that at the time
of examining the prayer for quashing of the criminal
proceedings, the court exercising extra-ordinary
jurisdiction can neither undertake to conduct a mini-trial
nor enter into appreciation of evidence of a particular
case. The correctness or otherwise of the allegations made
in the complaint cannot be examined on the touchstone of
the probable defence that the accused may raise to stave
off the prosecution and any such misadventure by the
Courts resulting in proceedings being quashed would be
set aside. This Court in the case of Akhil Sharda 2022 SCC
OnLine SC 820 held to the following effect:
"28. Having gone through the impugned judgment
and order passed by the High Court by which the High
Court has set aside the criminal proceedings in the
exercise of powers under Section 482 Cr. P.C., it appears
that the High Court has virtually conducted a mini-
trial, which as such is not permissible at this stage and
while deciding the application under Section 482 Cr.
P.C. As observed and held by this Court in a catena of
decisions no mini-trial can be conducted by the High
Court in the exercise of powers under Section 482 Cr.
P.C. jurisdiction and at the stage of deciding the
.
application under Section 482 Cr. P.C., the High Court
cannot get into appreciation of evidence of the
particular case being considered."
17. A similar view was taken in Maneesha Yadav's case
(supra), wherein it was held that: -
"13. As has already been observed hereinabove, the Court
would not be justified in embarking upon an enquiry as to
the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint at the stage of
quashing of the proceedings under Section 482 Cr.
P.C. However, the allegations made in the FIR/complaint, if
taken at its face value, must disclose the commission of an
offence and make out a case against the accused. At the
cost of repetition, in the present case, the allegations made
in the FIR/complaint even if taken at its face value, do not
disclose the commission of an offence or make out a case
against the accused. We are of the considered view that the
present case would fall under Category-3 of the categories
enumerated by this Court in the case of Bhajan Lal (supra).
14. We may gainfully refer to the observations of this Court
in the case of Anand Kumar Mohatta v. State (NCT of Delhi),
Department of Home(2019) 11 SCC 706: 2018 INSC 1060:
"14. First, we would like to deal with the submission of
the learned Senior Counsel for Respondent 2 that once
the charge sheet is filed, the petition for quashing of FIR
is untenable. We do not see any merit in this
submission, keeping in mind the position of this Court
in Joseph Salvaraj A. v. State of Gujarat [Joseph Salvaraj
A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri)
23]. In Joseph Salvaraj A. [Joseph Salvaraj A. v. State of
Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23], this Court
while deciding the question of whether the High Court
could entertain the Section 482 petition for quashing of
FIR when the charge-sheet was filed by the police
during the pendency of the Section 482 petition,
.
observed : (SCC p. 63, para 16)
"16. Thus, the general conspectus of the various
sections under which the appellant is being
charged and is to be prosecuted would show that
the same are not made out even prima facie from
the complainant's FIR. Even if the charge sheet
had been filed, the learned Single Judge [Joesph
Saivaraj A. v. State of Gujarat, 2007 SCC OnLine Guj
365] could have still examined whether the
offences alleged to have been committed by the
appellant were prima facie made out from the
complainant's FIR, charge-sheet, documents, etc.
or not."
18. Hence, it is not permissible for the Court to go into
the truthfulness or otherwise of the allegations.
19. A charge sheet has been filed before the Court. The
learned Trial Court is seized of the matter. It was laid down by the
Hon'ble Supreme Court in Iqbal v. State of U.P., (2023) 8 SCC 734:
2023 SCC OnLine SC 949 that when the charge sheet has been
filed, learned Trial Court should be left to appreciate the same. It
was observed:
"At the same time, we also take notice of the fact that the
investigation has been completed and charge-sheet is
ready to be filed. Although the allegations levelled in the
FIR do not inspire any confidence particularly in the
absence of any specific date, time, etc. of the alleged
offences, we are of the view that the appellants should
prefer a discharge application before the trial court under
Section 227 of the Code of Criminal Procedure (CrPC). We
say so because even according to the State, the
.
investigation is over and the charge sheet is ready to be
filed before the competent court. In such circumstances,
the trial court should be allowed to look into the materials
which the investigating officer might have collected
forming part of the charge sheet. If any such discharge
application is filed, the trial court shall look into the
materials and take a call whether any discharge case is
made out or not."
20. Thus, this Court should not exercise its extraordinary
jurisdiction when the learned Trial Court is seized of the matter.
The allegations made by the girls in their statements under
Section 161 Cr.P.C. duly establish a prima facie commission of the
offence punishable under Section 7 of the POCSO Act and the FIR
cannot be ordered to be quashed at this stage.
21. Consequently, the present petition fails and the same
is dismissed.
22. The observation made herein before shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
9th July, 2024
(Chander)
