Full Text
HIGH COURT OF DELHI
25028/2023 & CRL.M.A. 25029/2023 KULDEEP KUMAR .....Petitioner
Through: Mr. Adit S. Pujari and Ms. Mantika Vohra, Advocates.
Through: Mr. Aman Usman, APP
Shandilya, Advocates for State alongwith SI Vinod Bhati and SI
Prashant Malik P.S. Mayur Vihar.
JUDGMENT
1. This petition is filed seeking quashing of summoning order dated 22nd May 2017 that took cognizance of offences under Sections 354/354D/354A/509/506/34 of the Indian Penal Code, 1860 (“IPC”), arising out of FIR No. 0659/2015 P.S. Mayur Vihar dated 9th October 2015, regards the petitioner. The charge-sheet was filed on 23rd July
2016. The impugned order simply took cognizance of the charge-sheet noting that it was on the basis of the material which had been perused. Factual Background
2. On 9th October 2015, DD No.17A came to be recorded at 12:50 hours at P.S. Mayur Vihar that two boys were abusing a female caller at the BSES office. The IO arrived at the scene of the alleged incident, and on the same day, respondent no.2/ complainant filed a complaint and FIR came to be registered, also against K. Anirudh Parmar and Girish Kumar under Sections 354/354D/34 IPC at 21:05 hours. The petitioner was not named in the said FIR.
3. A perusal of FIR would show that respondent no.2/ complainant stated that on 9th October 2015, at about 11-11:15 in the morning, when she came to the office at Mayur Vihar, she saw Girish and Anirudh, who worked with her, standing on the scooty and laughing, which she ignored, since they had had a history of teasing her. A bit later, as per the complainant, the two co-accused accosted her and got hold of her hands. Thereafter, she called the PCR, but could not give a statement as she was nervous. She gave a statement at the police station stating that Anirudh and Girish were ‘electricity bill distributors’ in Laxmi Nagar. Subsequently, her statement was recorded under Section 164 of Code of Criminal Procedure, 1973 (‘Cr.P.C.’), on 16th November 2015, where she stated, that when she complained about it at the office, the staff said they were nephews of Kuldeep, the petitioner. She further stated that Kuldeep the petitioner was the leader of the DSEWU and was threatening her to withdraw the case and also tried to kidnap her son. She stated further that she was earlier a Supervisor but these people including Kuldeep, Girish and Anirudh had got her transferred and she was having trouble at her job and they were threatening her and her children. Accordingly, charge-sheet was filed under Sections 354/354D/354A/509/506/34 IPC. The petitioner was granted bail vide order dated 22nd September 2017.
4. Counsel for respondent no.2/ complainant stated in reply that the complainant was a single mother, employed initially on a contractual basis as a ‘electricity bill distributor’ and thereafter promoted to the post of Supervisor in 2013-14. The petitioner was a politically active person and had a tremendous influence on the officers of the company. The petitioner had bad intent towards the complainant since she was single. During 2014, he approached the complainant with indecent proposals, which were refused by the complaint. In retaliation, the petitioner started harassing her at every available opportunity, either directly or through others who were employed with her. The situation at the workplace became impossible and she was threatened to not file any complaint. The threats included that of kidnapping her children and defaming her. There were various complaints made by the complainant dated 23rd July 2015, 1st September 2015 and 16th September 2015 to her superiors, but no action was taken. These were prior to registration of the FIR. She made a request for transfer from Laxmi Nagar office but she was transferred to a further location, to Mayur Vihar branch, allegedly at the influence of the petitioner. However, she did join the duty at Mayur Vihar branch on 3rd October 2015. Submissions on behalf of Petitioner
5. Counsel for the petitioner stated that the petitioner was a Senior Trade Union Leader being General Secretary of the Delhi State Electricity Workers Union ("DSEWU") and a permanent employee of M/s. BSES Yamuna Power Ltd., where he was working as a Technical Officer. It is stated that the FIR was an abuse of process of law and did not disclose any offence against the petitioner. As per the petitioner, there was some discord which developed between him and respondent no.2/complainant and several BSES employees, including other coaccused; the petitioner had limited interaction with respondent no.2 /complainant.
6. The petitioner sought to place additional documents on record noting that the Internal Complaints Committee (ICC) submitted an inquiry report on 23rd August 2013 and according to the findings, the charges against petitioner were not proved. A copy of the ICC report has been placed on record and perused which essentially states that no evidence emerged in the inquiry substantiating the sexual overtures made by Kuldeep Kumar or his henchmen, at his behest.
7. Reliance is also placed on Johnson Jacob v. State (NCT of Delhi) (2022) 4 HCC (Del) 223 wherein a co-ordinate bench of this Court has stated that if the department has not been able to prove its charges in the departmental proceedings where burden of proof is lower, then, it is logical to presume that charges would not be proved in criminal proceedings.
8. Counsel for complainant /respondent no.2 however stated that they have filed an appeal against the ICC findings however, number of adjournments have been taken in that regard and the appeal has not yet concluded.
9. Petitioner produced transcripts of the recordings which have been filed by the complainant /respondent no.2. Counsel for petitioner also relied upon decision of this Court in State v. Nitin (2019) SCC OnLine Del 7239 where a co-ordinate bench of this Court in a situation, where name of respondent was not mentioned in the FIR but in a supplementary statement, given after a gap of 5 months, did not give credence to it and the discharge was approved. Submissions on behalf of complainant
10. Even while giving a statement pursuant to the incident on 9th October 2015, she was threatened by other officers of BSES. The complainant adverted to the conversation between the complainant and the petitioner, which would disclose that several persons approached the complainant and pressure was mounted upon her to withdraw the complaint, including by one Mr. Nandlal.
11. She could not state complete facts before the police, considering there was constant pressure, and she finally stated the name of the petitioner in her statement under Section 164 Cr.P.C. when there were closed chamber proceedings, and she gave a statement without being traumatized. The Court has seen the record, and notes that while her statement was being recorded before the Magistrate, the IO had been asked to wait outside the judges chamber because she wanted to make a statement, as per her own will and without any perception of threat.
12. Along with the reply, complainant annexed copies of various complaints to senior officers of her Company, Chairman of Women Sexual Harassment Committee of Police and Delhi Women Commission. However, she stated that due to influence of petitioner, she continued to be victimised. Consequently, she was also going for treatment of depression, in support of which she has produced the medical record. Analysis
13. A perusal of the transcripts shows that the conversations revolve around petitioner and his associates engaging in professional misconduct and indecency. Furthermore, statements of respondent no.2 in the transcripts show her grievance regarding misuse of petitioner’s position by him and his associates in order to interfere with her job posting. In the transcripts, respondent no. 2 refers to a recording made of her conversation, basis which it is alleged that she agreed to withdraw the case in exchange of a promotion. Respondent no. 2 clarifies to the person on call that such recordings were obtained by a group of people surrounding and pressurising her. Respondent no. 2 states in the transcripts that such undue professional benefits were not demanded by her, rather offered to her by the persons surrounding her and such offers were in fact refused by respondent no. 2.
14. Petitioner relies upon the judgment of a co-ordinate bench of this Court in Johnson Jacob v. State (NCT of Delhi) (supra) which further relies on judgments of the Supreme Court in Ashoo Surendranath Tewari v. CBI (2020) 9 SCC 636 and Radheshyam Kejriwal v. State of W.B. (2011) 3 SCC 581 where the Supreme Court has held that criminal proceedings may be quashed basis exoneration in departmental proceedings, if both the proceedings are on the same set of facts and the exoneration in departmental proceedings is on merits.
15. The relevant paragraphs of the judgment in Johnson Jacob (supra) are extracted as under:
underlying principle being the higher standard of proof in criminal cases.” It finally concluded:
39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court.”
19. The judgment of Ajay Kumar Tyagi case [State (NCT of Delhi) v. Ajay Kumar Tyagi, (2012) 9 SCC 685: (2012) 3 SCC (Cri) 1221: (2012) 2 SCC (L&S) 811] is distinguishable as there is no dispute with the proposition laid down that exoneration of departmental proceedings “ipso facto would not result in criminal prosecution”. The reason being that departmental proceedings can be quashed for a number of reasons, including certain technicalities such as disqualification of inquiry officers, procedural lapses, violation of principles of natural justice, etc.
20. However, I am of the view that when departmental proceedings and the criminal proceedings are a mirror image of each other and the accused has been exonerated on merits in the departmental inquiry, and not due to minor technicalities or irregularities, the criminal proceedings, on the same set of facts and circumstances, cannot be permitted to be continued as the standard of proof in departmental proceedings is much lower than the standard of proof in criminal proceedings. The same principle has been laid down by the Supreme Court in Ashoo Surendranath Tewari v. CBI [Ashoo Surendranath Tewari v. CBI, (2020) 9 SCC 636].” (emphasis supplied)
16. The cited precedent may not apply to the facts of the present case in light of the judgement of a co-ordinate bench of this Court in Ranbir
17. It is pertinent to note that in Ranbir S. Arora (supra) as in the present case, the FIR was registered prior to the departmental proceedings, as regards the same, the court held as under: “23. The present FIR is prior in time; Departmental Proceedings are later in time. The petitioner cannot take shelter of a finding returned in the Departmental Proceedings even if it is in his favour as the FIR has preceded the Departmental Enquiry; he cannot seek quashing of the FIR dated 03.10.2009 on the strength or weakness of an Enquiry Report which is dated 23.09.2011.”
18. The Supreme Court in State (NCT of Delhi) v. Ajay Kumar Tyagi (2012) 9 SCC 685 elucidated that exoneration in disciplinary proceedings will not ipso facto exonerate the accused in a criminal case, following paragraphs are instructive in this regard: “24...In fact, there are precedents, to which we have referred to above, that speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in a department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case cannot be rejected on the basis of the evidence in the departmental proceeding or the report of the inquiry officer based on those evidence.
25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy.”
19. It is pertinent to note that even in Ashoo Surendranath Tewari v. CBI (supra) the discharge in criminal proceedings was basis a report of the Central Vigilance Commission, based on an allegation of corruption and other economic offences.
20. Notably, the issue in Radheyshyam Kejriwal (supra) and Johnson Jacob (supra) also involved allegations of corruption, initiated by employer in department/ vigilance proceedings. In complete contradistinction in this case, the ICC proceedings were initiated at the victim’s behest for sexual harassment and culminated in a decision which is pending in appeal. The allegations have been made separately as per the registered FIR, now culminating in a chargesheet; the material would therefore have to be appreciated in its own light and not merely debunked or ignored, basis an ICC finding. The charges have to be tested on basis of evidence having gone through filtration of a trial, based upon its own specific facts and testimonies. The ICC decision cannot simply be used to exonerate the accused of all penal charges without even a trial.
21. From a background of facts, it cannot be ignored, at this stage, that the complainant had consistently complained of harassment and intimidation by the petitioner directly or indirectly, where he allegedly used his influence in order to corner and coerce the complainant to accept his demands. These allegations include intimidation by way of threats to her which would, needless to state have to be assessed during trial.
22. The Supreme Court in State of Rajasthan v. B.K. Meena (1996) 6 SCC 417, though in a different context, while deciding on a prayer of stay on disciplinary proceedings till the conclusion of the criminal case, elucidated as follows, as regards disciplinary proceedings vis a vis a criminal trial:
decision may require reconsideration if the criminal case gets unduly delayed.”
23. A perusal of the transcripts would show that the complainant’s conversations were based on background of threats, unwanted advances, and unwarranted professional interference by the petitioner in what prima facie seems a rampant misuse of petitioner’s position in DSEWU and his influence in the organization.
24. ICC findings will not serve to discharge the accused considering they have been appealed against and are vulnerable to be set aside.
25. The trial was stayed on 28th February 2018 and the matter has been in limbo. The petitioner will have the right, in accordance with law, to prove his arguments during trial.
26. Based on the transcript, it was argued by petitioner that respondent no.2 was trying to blackmail by pressing these charges, in order to get a proper job, however, this is not evident on reading of these transcripts. Rather respondent no. 2 states in the transcripts that such offers of professional gain were made to lure her into withdrawing her complaint and were accordingly declined by her.
27. It is pertinent to note that the decision of the Court in Nitin (supra) is based on the facts before it. Allegations faced by accused were under Section 304/323, whereas the FIR before this Court in the present case, alleges offences of sexual misconduct and criminal intimidation. Further, the decision in Nitin (supra) was delivered by this Court in its revisional jurisdiction at the stage of discharge whereas the present case invokes the inherent power of this Court for setting aside a summoning order post cognizance. In Nitin (supra) absent the delayed incorporation of the accused persons named by the complainant in the statement under Section 164 Cr.P.C., there was no evidence on record to show his involvement in the alleged offence.
28. Meanwhile, in the instant case, considering the consistent and longstanding complaints filed by respondent against petitioner, coupled with transcripts and various other evidences, it cannot be said that there is no material to indicate possibility of the petitioner’s involvement in the alleged offence. In various administrative complaints filed by the respondent, she has consistently maintained her grievance of sexual misconduct against the petitioner. Lastly, in Nitin (supra) there were six eyewitnesses that maintained that the accused was absent from the place of crime, their testimonies directly struck at the heart of the testimony of the complainant therein. In this case, the trial is yet to commence.
29. A co-ordinate bench of this Court in State v. Om Prakash 2017 SCC OnLine Del 11272 elucidated that an FIR is not an encyclopaedia of the case and failure to name the accused in the FIR may be important, but the entire factual scenario must be examined to conclude participation of an accused in the offence, relevant paragraphs of the said judgment are extracted as under:
people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. (Vide: Rohtash v. State of Rajasthan (2006) 12 SCC 64; and Ranjit Singh v. State of Madhya Pradesh (2011) 4 SCC 336: JT 2010 12 SC 167).”
30. The Supreme Court in Hazrat Deen v. State of U.P. 2022 SCC OnLine SC 1781 held that discrepancies between the FIR and a subsequent statement made under section 164 Cr.P.C. may be a defence however, such discrepancies cannot be basis for discharge without initiation of trial.
31. It has to be taken into account that complainant had filed multiple complaints at various points of time and her situation is not based on only one complaint. She was a junior employee in the department while petitioner was a very senior union leader. Considering this hierarchy in the event of any doubt or inconsistency, presumption must sway in favour of the complainant, at the present stage.
32. Reliance is placed in this regard on the following decisions of the Supreme Court and co-ordinate benches of this Court: i. The Supreme Court in Union of India v. Mudrika Singh (2022) 16 SCC 456 took note of the power dynamics operating in workspaces in the following words:
to create adequate mechanisms for redressal. However, the existence of transformative legislation may not come to the aid of persons aggrieved of sexual harassment if the appellate mechanisms turn the process into a punishment. It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. It is also important to be mindful of the power dynamics that are mired in sexual harassment at the workplace. There are several considerations and deterrents that a subordinate aggrieved of sexual harassment has to face when they consider reporting sexual misconduct of their superior.” ii. A co-ordinate bench of this Court in Rashi v. Union of India 2020 SCC OnLine Del 1555 while summarising principles involved in constitution/ conduct of ICC proceedings emphasised the need for proceedings to be unbiased from influence of senior members in an organization. The relevant paragraphs of the said judgment are extracted as under:
25. The underlying object of constituting the ICC, as laid down by the Supreme Court in Vishaka (supra), and the various decisions set out above is that the inquiry ought to be impartial and fair. For the said purpose to be achieved, the ICC ought to be an independent and unbiased body. External members are appointed on the ICC to ensure neutrality of the ICC. In case complaints are made against senior level officers working in ministries/departments, who have enormous influence over their subordinates, it is to be ensured that the complaints are inquired into in a completely unbiased manner. The age old aphorism that ‘Justice must not only be done but also be seen to be done’ is apt in this context.” iii. A division bench of this Court in Ruchika Singh Chhabra v. Air France India 2018 SCC OnLine Del 9340 took note of the sensitivity to be observed in dealing with matters involving sexual harassment at workplace, relevant paragraphs have been extracted as under:
lie the primary obligation to ensure the effectuation of these laws and rules, aimed at securing a safe workplace to their women employees. A permissiveness or infraction in implementation in one case, implies the employer's lack of will, or inability to assure such safety and equality at its workplace. A complainant who takes courage to speak out against unwelcome behavior regardless of the perpetrator is not merely an object of pity or sympathy, but as Alex Elle said: “You are not a victim for sharing your story. You are a survivor setting the world on fire with your truth. And you never know who needs your light, your warmth, And raging courage…”
32. And upon us all-the employer, courts and the society as a whole, lies the duty to root out such wholly unwholesome behavior.”
33. It is to be noted that the present petition has been filed at a very nascent stage in the trial and has prayed for quashing an order merely taking cognizance and summoning the petitioner.
34. In light of the above discussion and assessment, this petition is dismissed along with the pending applications.
35. Judgment be uploaded on the website of this Court.
JUDGE SEPTEMBER 11, 2024/SM/kp