Tayab Hussain vs Kanchan Sharma

K.S. Kumaran, J.

First respondent Kanchan Sharma filed a complaint (Annexure P4) before the learned Chief Judicial Magistrate, Jagadhri (Criminal Case No. 433/1 of 1995) on 26.7.1995 against the petitioners (1) Tayab Husain, and (2) Ayub Husain under Sections 451 and 354 read with Section 34 I.P.C. She has alleged therein that on 19.4.1995 at about 9.00/9.30 a.m., while she was sitting in the office of Saraswati Model School, Yamuna Nagar, where she is working and was attending to her work, the first petitioner Tayab Husain, in furtherance of the common intention with the second petitioner Ayub Husain, forcibly entered into the office, caught hold of her arm and started misbehaving with her. She also alleged that the firstpetitioner Tayab Husain, with the intent to outrage her modesty, tried to catch hold of her breast, by which her shirt came in the hands of first petitioner. She has further alleged that in the meantime, Smt. Asha Sandhu, another teacher of the school who had come into the office and on noticing the cry of the complainant, rescued her from the clutches of the first petitioner. According to the complainant, the occurrence was also witnessed by Smt. Punam Sharma, another teacher who had come into the office, after hearing the noise of the complainant and had seen the first petitioner Tayab Husain running from the office. The complainant has also alleged that the first petitioner, with the help of the second petitioner, who was standing outside the office on a scooter, ran away from the scene.

Before the learned Chief Judicial Magistrate Jagadhri, the complainant/firstrespondent examined herself as CW1, Asha Sandhu as CW2 and Punam Sharma as CW3. After considering the evidence, the learned C.J.M. came to the conclusion that there is prima facie evidence to summon both the petitioners under Sections 451 and 354 read with Section 34 I.P.C. and summoned them accordingly, by his order dated 7.10.1995 (annexure P3).

As against this order, the petitioners herein filed a revision petition (annexure P2) before the learned Additional Sessions Judge, Yamuna Nagar at Jagadhri in Criminal Revision No. 75 dated 7.12.1995. The learned Additional Sessions Judge, Jagadhri, by his order dated 25.5.1996 (annexure P1), after considering the records and the arguments of both the sides, dismissed the same.

That is why the petitioners have now filed this criminal miscellaneous application u/S 482 Cr.P.C. for quashing the orders passed by the learned Chief Judicial Magistrate and the Additional Sessions Judge, Jagadhri. The complainant/firstrespondent and the State of Haryana/secondrespondent have filed separate replies.

I have heard counsel for both the sides and perused the documents. The contention of the petitioners is that a perusal of the complaint does not prima facie disclose any ground for proceeding against the petitioners under Sections 451 and 354 read with Section 34 I.P.C. According to the petitioners, the complaint is actuated by mala fides since there was a civil dispute between the brother of the first respondent and the second petitioner herein and, therefore, is an abuse of the process of the Court.

The petitioners also contend that the firstrespondent had lodged a report with reference to the same occurrence with the police on the basis of which F.I.R. No. 170 dated 20.4.1995 was registered at Police Station City, Yamuna Nagar under Sections 451 and 354 I.P.C., but on investigation, the police found it to be false and had sent cancellation report to the concerned Magistrate, which was also accepted by the Magistrate. The first respondent/complainant, on the other hand, contends that the complaint reveals commission of offences as alleged by her and that the complaint is not actuated by mala fides. She has also taken the objection that this application under Section 482 Cr.P.C. to quash the complaint and the other consequential proceedings is not maintainable inasmuch as the petitioners had filed a revision petition before the Additional Sessions Judge and had failed.

I will first deal with the question whether a reading of the complaint prima facie shows the commission of offences as alleged by the first respondent/complainant. The complainant has specifically stated in her complaint that on 19.4.1995 at 9.00/9.30 a.m., when she was attending to her work in the school where she is working, the first petitioner, in furtherance of the common intention with the second petitioner, illegally and forcibly entered in the office of the school, caught hold of her, misbehaved with her and with the intent to outrage her modesty, tried to catch hold of her breast as a result of which her shirt came into the hands of the first petitioner. She has also mentioned about the witness who had seen the occurrence and also the witness who had seen the first petitioner running away from the office. She has specifically stated that the first petitioner, with the help of the second petitioner, who was standing outside the office of the school with a scooter, ran away from the scene. These allegations clearly show that there are grounds for proceeding against the petitioners for the commission of offences of criminal trespass with the intent to commit an offence. It also shows that the first petitioner had used force against the complainant with the intent to outrage her modesty. The complaint further shows that it was with the help of the second petitioner, who was standing outside with a scooter, that the first petitioner ran away from the scene of occurrence. Therefore, it is clear from the complaint that there are certainly grounds for presuming that the petitioners have committed these offences.

Before the learned trial Magistrate, the complainant has also led oral evidence. It is after considering the complaint and the evidence that the learned Magistrate has proceeded to summon the petitioners, as stated above.

The contention of the petitioners is that on 20.4.1995, the complainant had lodged a report with the police at Police Station City, Yamuna Nagar wherein she had mentioned only about the first petitioner Tayab Husain and not about the second petitioner Ayub Husain. Of course, the complainant has not named the second petitioner Ayub Husain, but she has stated that the first petitioner came to the school and that one more person was with him whom she can recognise. She has stated that the first petitioner entered her room and started misbehaving with her. Though she has not specifically stated that he caught hold of her breast, she has stated that he pulled her shirt. She has also stated that the first petitioner Tayab Husain and his companion ran away with their scooter. But this Court, in exercise of its powers under Section 482 Cr.P.C., cannot minutely and critically analyse these aspects on merits and come to the conclusion that the complaint and further proceedings should be quashed. This Court, at this stage, is concerned with the question whether a reading of the complaint reveals prima facie the commission of the offences as alleged. I have already found that the complaint does so. Therefore, this Court will not further proceed to critically examine the case on merits, by comparing the complaint with the previous F.I.R.

The next contention put forward by the petitioners is that the police had investigated the case (F.I.R.) and found the complaint to be false and had sent a cancellation report to the Illaqa Magistrate, who had also accepted the same. But this contention again will not be of any help to the petitioners. Since the police did not further proceed with the case, the complainant approached the Court directly by means of a private complaint. The petitioners cannot rely upon the cancellation report sent by the police and claim that the complaint should be quashed. There is also nothing to show that the petitioners were informed about the forwarding of the cancellation report. Therefore, this contention will not help the petitioners.

Yet another contention put forward by the petitioners is that Chander Kant Sharma, brother of the complainant had entered into an agreement with the second petitioner Ayub Husain to purchase certain property under an agreement, but could not fulfil the agreement and, therefore, the agreement was cancelled. According to the petitioners, the first respondent, her mother and brother have an evil motive to usurp the whole property of the petitioners and did not allow the petitioners to construct a demarcation wall and this was the motive to falsely implicate them. The petitioners, with their rejoinder to the reply filed by the firstrespondent, have annexed copies of this agreement which contains an endorsement about the cancellation, and also the power of attorney executed by the second petitioner in favour of Saroj Kanta and the cancellation of the same, as annexures P7 to P9. The petitioners, therefore, contend that the complaint is actuated by malice and mala fides and is an abuse of the process of Court and, therefore, it should be quashed. But as rightly contended by the learned counsel for the firstrespondent and as is seen from the cancellation of the agreement, the brother of the complainant had received back the money and the agreement had been cancelled and, therefore, there is no question of any malice or mala fides arising on account of that. Even otherwise, these documents now produced before this Court along with the rejoinder were not placed before the trial Court or the revisional Court. Therefore, in proceedings under Section 482 Cr.P.C., these documents now produced before this Court cannot be taken into consideration for quashing the complaint and the consequential proceedings since these were not before the trial Court. Even otherwise, these documents do not, in any way, show that the complaint is actuated by mala fides or that it is an abuse of process of Court. Therefore, this contention again will not be of any help to the petitioners.

The firstrespondent/complainant has also raised the plea that the revision filed by the petitioners as against the summoning order passed by the learned Magistrate having been dismissed by the Additional Sessions Judge, a second revision in the grab of an application u/S 482 Cr.P.C. is not maintainable and on this ground alone, this petition should fail.

In support of this contention, learned counsel for the firstrespondent relied upon a decision of the Hon''ble Supreme Court in Deepti @ Arati Rai v. Akhil Rai and others, 1995(3) RCR 638. That was a case where against the order of the Magistrate framing a charge under Section 498A, a revision was filed before the learned Sessions Judge and the same was dismissed. Then an application u/S 482 Cr.P.C. was filed which was held to be barred as a second revision is not maintainable before the High Court under Section 482 Cr.P.C. But the learned counsel for the petitioners relied upon another decision of the Hon''ble Supreme Court in Ganesh Narayan Hegde v. S. Bangarappa and others, 1995(2) RCR 373 wherein it was held that Section 399 Cr.P.C. does not bar a person from invoking the jurisdiction of the High Court u/S 482 Cr.P.C.

Therefore, the learned counsel for the petitioners contended that this application is not barred. But even in this decision relied upon by the learned counsel for the petitioners, the Hon''ble Supreme Court, after referring to various decisions, observed that the High Court had not held that the evidence adduced by the complainant, oral and documentary, if unrebutted, would not have warranted the conviction of the accused within the meaning of Section 245(1) nor has it held that on the evidence adduced, the learned Magistrate could not have reasonably formed an opinion that there is ground for presuming that the accused has committed an offence, as contemplated by Section 246(1). This decision clearly shows that the availing of the remedy of the revision to the Sessions Judge under Section 399, does not bar a person from invoking the power of the High Court under Section 482 still the High Court should not act as a second revisional Court under the garb of exercising inherent powers, and that while exercising its inherent powers in such a matter, it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing the charges. Therefore, though strictly this application under Section 482 Cr.P.C. is not barred by Section 399 Cr.P.C., this Court cannot act as a second Revisional Court. As pointed out already, the trial Court has found that there are grounds for proceeding against the petitioners and the Revisional Court has refused to interfere with the said order giving valid reasons. In such circumstances, this Court cannot once again go into the matter, critically examine the case on merits and proceed to quash the proceedings. Therefore, this decision will not help the petitioners in the circumstances of the case.

Of course, the learned counsel for the petitioners also relied upon a decision of this Court in Surinder Suri v. State of Haryana and others, 1996(2) RCR 701 , wherein it was held that if the dominant purpose in filing the F.I.R. is mala fide, the F.I.R. will have to be quashed. But I have already found that there is no material to hold that the complaint was actuated by mala fides and that even the annexures P7 to P9 which were produced before this Court, were not either before the trial Court or the Revisional Court. Even these documents cannot show that the complaint is actuated by mala fides and, therefore, liable to be quashed. Therefore, this contention of the petitioners cannot be accepted.

Learned counsel for the firstrespondent also relied upon a decision of the Hon''ble Supreme Court in State of Tamil Nadu v. Thirukhural Perumal, 1995(2) RCR 124. That was a case where the F.I.R. was quashed by the High Court at the instance of the accused. The Hon''ble Supreme Court found that while quashing the proceedings, reliance had been placed upon some evidence collected by the investigating agency during the investigation and held as follows :

"The approach of the learned Judge in relying upon such evidence, which is yet to be produced before the trial Court, to quash the criminal proceeding in crime case No. 246/92 (supra) was not proper. The power of quashing a FIR and criminal proceedings should be exercised sparingly by the Courts. Indeed, the High Court has the extraordinary or inherent power to reach out injustice and quash the First Information Report and criminal proceedings, keeping in view the guidelines laid down by this Court in various judgments (reference in this connection may be made with advantage of State of Haryana and others v. Bhajan Lal and others, 1992 Supp. (1) 335 : 1991(1) RCR 383 SC but the same has to be done with circumspection. The normal process of the criminal trial cannot be cut short in a rather casual manner. The Court is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition under Section 482 Cr.P.C. seeking the quashing of the FIR and the criminal proceedings."

Therefore, taking into consideration all these aspects, I am of the view that this petition has to fail. Accordingly, this petition is dismissed.