Aseem Mowar v. State

4. The learned counsel for the petitioner submitted that the impugned proceedings are an abuse of the process of law and deserve to be quashed by this Court. He submitted that the allegations against the petitioner are so absurd and inherently improbable that there is no sufficient ground for proceeding against him.

5. He further submitted that statement of Respondent no. 2 under Section 164 CrPC cannot be used as a substantive piece of evidence, in absence of any underlying material, and could only be used for contradicting or corroborating the versions of events stated by said person. He further stated that the learned Trial Court ought not to have framed charges qua the petitioner, while solely relying on the substantially improved testimony of Respondent No. 2, in the absence of any other piece of evidence to corroborate her version of events.

6. He submitted that no preliminary enquiry had been conducted by the Investigating Agency, despite the complainant having made a belated complaint. He further submitted that the arrest of the petitioner was illegal since it was made 9 days after the registration of FIR, without any plausible justification or even furnishing a notice under Section 41A of the CrPC to the petitioner.

7. He submitted that despite there being over 300 residents forming part of the apartment complex, no eye witness and no other substantive piece of evidence like CCTV footage or voice recording was ever even considered by the Investigating Agency in order to corroborate Respondent No. 2’s version. He submitted that the key witnesses were not examined to check the veracity of the frivolous allegations levelled by Respondent No. 2, such as the ladies who furnished representation dated 09.10.2015; Ms. Poonam who is the neighbour who allegedly also threatened Respondent No. 2; the yoga instructor who was allegedly present with the Petitioner on the date when Respondent No. 2 lost her cat; and Respondent No. 2’s own family who lived in the same apartment complex.

8. He submitted that even if the case of Respondent No.2 is taken at the highest, none of the ingredients of the offence under Section 341 IPC are met. He further submitted that the charge under Section 352 IPC was framed without affording the petitioner an opportunity to be heard.

9. He submitted that the charge under Section 509 IPC against the petitioner is based on vague and contradictory statements by Respondent No. 2, which differ from her police complaint dated 28.11.2015.

10. He submitted that the impugned proceedings stem from disputes over terrace access and the conduct of Respondent no.2’s cat and the same should have been quashed in view of Section 95 of the IPC. He submitted that a review of Respondent No. 2's complaints reveals inconsistencies and substantial embellishments aimed at falsely implicating the petitioner and Section 95 IPC is intended to exclude cases that technically fall within the law’s language but do not align with its spirit.

11. Per contra, the learned Additional Public Prosecutor for the State submitted that the learned Trial Court as well as the learned Revisional Court rightly observed that a prima facie case is made out against the petitioner. He submitted that the arguments in relation to inconsistencies in the statement of Respondent No.2 will be seen during the course of the trial after the parties have led their evidence.

12. The learned counsel for Respondent No.2 submitted that the allegations as levelled by Respondent No.2 have to be taken at a demurrer and the arguments raised by the petitioner is in the nature of defence which can only be tested during the course of trial.

13. He submitted that the scope of power of this Court under Section 482 of the CrPC is limited and this Court should not exercise the same before the parties have had an opportunity to establish their case.

ANALYSIS

14. In the present case, the petitioner has challenged the order on charge dated 14.07.2016, which had already been challenged by him in revision before the learned Revisional Court. It is relevant to note that while it is settled law that a second revision cannot be filed in terms of the bar under Section 397 of the CrPC, the inherent power of this Court under Section 482 of the CrPC has a wide ambit and can be exercised in the interest of justice. It is settled law that the power under Section 482 of the CrPC is to be exercised cautiously and sparingly, especially when Sessions Judge has already exercised revisional power under Section 397 of the CrPC.

15. The Hon’ble Apex Court, in the case of Krishnan v. Krishnaveni: (1997) 4 SCC 241, had observed as under:

16. It is relevant to note that the petitioner has invoked the inherent jurisdiction of this Court seeking quashing of the present FIR. While this Court needs to exercise restraint in stifling prosecution, however, the inherent jurisdiction can be exercised if it is found that the continuance of criminal proceedings would be a clear abuse of process of law.

17. In the case of State of Haryana v. Bhajan Lal: 1992 Supp (1) SCC 335, this Court had illustrated the category of cases where the Court may exercise its inherent jurisdiction to quash the proceedings. The relevant portion of the judgment is reproduced hereunder:

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 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.”

18. The Hon’ble Apex Court in the case of Indian Oil Corporation v. NEPC India Limited and Others: (2006) 6 SCC 736 has also discussed the scope of jurisdiction under Section 482 of the CrPC to quash criminal proceedings. The relevant portion of the same is

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 of 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 absolutely necessary for making out the offence.

(v) A given set of facts may make out: (a) purely a civil wrong; or (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.”

19. As the petitioner has also challenged the order on charge in the present petition, it is also relevant to take note of the law in relation to framing of charges. It is trite law that the learned Trial Court while framing charges is not required to conduct a mini-trial and has to merely weigh the material on record to ascertain whether the ingredients constituting the alleged offence are prima facie made out against the accused persons. All that is to be seen is whether the learned Trial Court has adequately appreciated the material on record and whether, given the material placed before it, there is grave suspicion against the accused which is not properly explained.

20. The Hon’ble Apex Court, in the case of Sajjan Kumar v. CBI: (2010) 9 SCC 368, has culled out the following principles in regards to the scope of Sections 227 and 228 of the CrPC:

an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.”

21. In a recent decision in State of Gujarat v. Dilipsinh Kishorsinh Rao: 2023 SCC OnLine SC 1294, the Hon’ble Apex Court has discussed the parameters that would be appropriate to keep in mind at the stage of framing of charge/discharge, as under:

such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed. xxx

12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.”

22. It is the case of the petitioner that the subject FIR is manifestly frivolous and the same has been instituted by Respondent No.2 with the sole intention to harass him. It is argued that the allegations as made by Respondent No.2 in her statement under Section 164 of the CrPC, were not made by her in her initial complaint to the building authority or in the FIR.

23. Respondent No.2 has merely contested the same on the ground that the arguments raised by the petitioner are all a matter of trial.

24. The entire case is based essentially on the statement of Respondent No.2. While it is settled law that conviction can be based on the sole statement of a credible witness, however, the same must be unblemished and should win the confidence of the Court. In such circumstances, before framing of charges, the Court is required to satisfy itself that the material placed on record by the prosecution, prima facie, inspires confidence so as to warrant subjecting the accused to trial.

25. The charge dated 14.07.2016 makes it clear that the offences as alleged against the petitioner relates to an incident that took place around 3-4 months before December, 2015, where the petitioner wrongly restrained Respondent No.2, assaulted her, used criminal force without any sudden or grave provocation and used abusive language with an intention to insult her modesty. The precise date of the incident is uncertain.

26. At this juncture, this Court first deems it apposite to refer to the complaint made by Respondent No.2 to the building authority on 26.10.2015, that is, more than a month before registration of the FIR. In the said complaint, Respondent No.2 elaborated upon an incident with another neighbour and also complained that the petitioner had threatened her, however, she made no mention of the alleged incident where the petitioner held her hand or obstructed her path. The relevant portion of the same is reproduced hereunder:

alleged that my pet, a kitten is eating his plants. For over last two years I am walking on the terrace and no harm has been done by me or my pet. My pet is trained with a litter box of his own and I am not responsible for other cats or animals who may eat plants. Mr Aseem Saxena has said that he has the right over the terrace and threatened me that he will harm me physically if I come up on terrace again.

3. Today, on 26 October 2015 I had put 2 small stoos and a wooden board on terrace of the Fourth Floor. Cleaning activity is ongoing in my floor and I had kept these small items in a small place covering hardly 3 foot x 2 foot area. Mrs Poonam Nene of Flat 452 came down in the lift and started throwing all items at my doorstep. She abused me and threatened me saying that the flat 452 belongs to her and I don't have the right to put anything on her terrace. I tried to request her saying that there are very-small dry items kept for a temporary period only but she continued throwing the items at me and on my doorstep threatening me at the same time.

4. The building terrace belongs to all residents and residents of the 5th Floor are using it for their own convenience and pleasure. They have misbehaved with me and continue to misbehave threatening me with dire consequences over trifle issues.”

27. Respondent No.2 has made a mention of the aforementioned complaint in the FIR as well and stated that even though she gave a complaint, however, no action was taken in relation to the same. The relevant portion of the FIR in relation to the alleged incident is “Around a few months back, Mr Asim Mowar's behavior deteriorated beyond my tolerance capacity. He physically tried to obstruct my passage on the terrace and threatened me by saying that if he ever saw me or Cheeku again on the terrace he will inflict severe physical harm on both of us. I was shocked by the exhibition of his crude behavior and violent nature. I was alone in the early hours of the morning around 6:30 AM on the terrace. He then lunged forward and beat Cheeku with a stick and tried to wring her neck. I tried to get back home safely, carrying a crying Cheeku and ran down the stairs. I had to provide medical attention to Cheeku and it took many weeks to calm down the pet. I tried to speak to the elders in the building complex and was advised not to file a police complain since it was thought that it would make matters worse. On 26th October, 2015 I gave a written complaint to the Building Management, but there was no action.”

28. Thereafter, Respondent No.2 in her statement under Section 164 of the CrPC narrated the following version in relation to the incident. The relevant portion of the same is reproduced hereunder: “Around 3 months back, Mr Asim Mowar exhibited a very violent behavior over the same allegation that 'Chiku' was eating his plants. He threatened me and said that if he ever sees me or 'Chiku' on the terrace again he will kill us and he will inflict an injury that I shall remember it for the rest of my life, if 1am left alive. While threatening me he first grabbed hold of me, pushed me violently due to which I fell on the stairs and all this while he was abusing me saying "Single ho, single ladkiyo ko main jaanta hu. Aisi ladkiyo ko main acchi tarah jaanta hu aur unhe sabak bhi sikhana jaanta hu. Tum jo apne ko ek smart Govt. Officer samajhti ho tumko main tumhaari aukat dikhaunga." Then he pulled out a stick from a flower pot and started hitting Chiku with it. I tried to protect Chiku, then he took hold of my hands and shoulders and physically obstructed my passage and gave me a big push due to which I fell against and hit the wall. I was in deep shock after this incident and refrained from going to the terrace area. I was also threatened by Mr. Asim Mowar that if I complained about him, then I who was a single lady living alone with elderly parents aged 78-84 years will face dire consequences.”

29. A bare reading of the complaint addressed by Respondent No.2 on 26.10.2015, the FIR and the statement of Respondent No.2 under Section 164 of the CrPC demonstrates that Respondent No.2 has substantially improved upon her allegations. Respondent No.2 has not sought to offer any explanation for the same either. Even during the course of arguments before this Court, the sole argument taken on behalf of Respondent No.2 is that the arguments as raised by the petitioner are a matter of trial.

30. Initially, in her complaint to the Building Authority, the complainant merely alleged that the petitioner had threatened to physically harm her if she came on the terrace. Thereafter, in the FIR, Respondent No.2 alleged that the petitioner had physically tried to obstruct her passage to the terrace and threatened physical harm on her and her cat. Respondent No.2 also alleged that the petitioner had lunged at her cat.

31. However, in both the said complaint and the FIR, there is no whisper of the allegations that the petitioner held Respondent No.2’s hand or pushed her violently on the stairs when he was threatening her. It is also not alleged initially that the petitioner had verbally abused Respondent No.2 with the intention to outrage her modesty.

32. It is only in her statement under Section 164 of the CrPC that Respondent No.2 made such allegations. It is stated in the FIR that Respondent No.2 had been advised by elders to not escalate the situation, however, no other person has been added as a witness to depose in relation to the allegations. It is also argued that the investigating agency erred in not examining any other witnesses in order to check the veracity of Respondent No.2’s allegations and there is no CCTV footage or other corroborating evidence to substantiate the allegations made by Respondent No.2.

33. Charges have been framed against the petitioner for the offences under Sections 341/509/352 of the IPC.

34. The learned Trial Court, in impugned order on charge dated 14.07.2016, has observed that the allegations in the statement under Section 164 of the CrPC and the initial statement appear to be consistent and the believability of Respondent No.2 can only be ascertained after she is subjected to cross-examination.

35. The learned Revisional Court, in impugned order 31.07.2019, while upholding the order on charge dated 14.07.2016, has observed that while the accused can be given benefit of omission of facts, however, he cannot be given benefit for elaboration of facts. It is noted that merely because allegations are repeated in a different wording, the same will not be of benefit to the accused.

36. In the opinion of this Court, the present case is not one where the complainant has simply reiterated facts differently or elaborated upon them. The entire nature of the confrontation has been changed by Respondent No.2 in her different versions. As discussed above, no allegations in relation to any of the charged offences had been made by the complainant in her complaint to the Building Authority. In the FIR, in relation to the incident, Respondent No.2 only alleged that the petitioner had physically tried to obstruct her passage to the terrace. In such circumstances, considering that there is clearly some acrimony between the parties, the belated allegations in relation to verbal remarks made by the petitioner as well as alleged assault seem to be dubious, considering that no such allegations were made by Respondent No.2 in her complaint to the Building Authority where she went on to extensively elaborate that another neighbour had abused and threatened her as she had kept some items on the terrace, or even the FIR, where she alleged that the petitioner had lunged on her cat and given it beatings.

37. The offence under Section 509 of the IPC relates to word, gesture or act that is intended to insult the modesty of a woman. It is relevant to note that merely insulting a woman is not sufficient to constitute the said offence and the insult has to be to the modesty of a woman. It is to be seen whether a reasonable man will think that the act was done with the intent or knowledge that the same is likely to outrage the modesty of a woman. While the remarks as alleged to have been made by the petitioner are in a bad taste, in the opinion of this Court, the contextual framework does not suggest that the heated remarks were made to affront or insult the modesty of Respondent No.2. The petitioner also made a remark in relation to Respondent No.2’s occupation, whereby, it seems that the intent was rather to deter her from coming to terrace.

38. Insofar as the allegation in relation to obstruction of Respondent No.2’s path to the terrace is concerned, it is argued that the said offence is not made out even if the allegations are taken at the highest. This Court finds no error in the reasoning of the learned Trial Court that by allegedly obstructing the path of Respondent No.2 to the terrace, in view of the definition of ‘wrongful restraint’ under Section 339 of the IPC, prima facie, the said offence is made out against the petitioner.

39. It is argued that the dispute essentially relates to a trifle dispute and the FIR ought to be quashed. To showcase the extent of the dispute between the parties, the petitioner has annexed certain complaints made by him against Respondent No.2 as well. A representation made by 70 female residents of the apartment condemning the acts of Respondent No.2 has also been annexed. The veracity of the said documents has not been disputed.

40. As discussed above, this Court is empowered to quash proceedings that are manifestly frivolous or vexatious in nature. such circumstances, where there is possibility of the proceedings being manifestly frivolous or vexatious or are instituted with the ulterior motive of wreaking vengeance, the Court is permitted to look into the facts and circumstances of the case a little more closely in exercise of inherent jurisdiction. The Court can look into the attending circumstances emerging from the record of the case and can read between the lines.

41. In the facts of the present case, it seems that the parties have been quarrelling with each other in relation to access to terrace. Admittedly, there was previous animosity between the parties. Section 95 of the IPC is meant to cover offences of trivial nature where even though the ingredients of the offence are made out, however, the offence and harm is so negligible in nature, that no ordinary person would ordinarily pursue action in relation to the same. Having discussed that the statement of Respondent No.2 in relation to the assault as well as the verbal remarks seems dubious, even if the allegation in the FIR in relation to the petitioner obstructing Respondent No.2 is taken at the highest, the nature of offence appears to be slight and the same does not warrant continuation of criminal proceedings.

42. It is also relevant to note that even if the statement of Respondent No.2 is taken at the highest, in view of the facts of the case, the same only casts suspicion against the petitioner, however, it does not inspire such a grave suspicion so as to subject the petitioner to a trial specially when the allegations appear to be trivial. Parties are stated to be neighbours and such proceedings being allowed to continue would only cause more acrimony and disharmony.

43. In view of the aforesaid discussion, FIR No. 478/2015 and all consequential proceedings arising therefrom are quashed. Needless to say, the order on charge dated 14.07.2016 and order dated 31.07.2019 are also set aside.

44. The present petition is allowed in the aforesaid terms. Pending applications also stand disposed of. AMIT MAHAJAN, J JANUARY 27, 2025