Full Text
CRIMINALAPPELLATE JURISDICTION
WRIT PETITION NO. 1432 OF 2023
Sabita Patra and ors .. Petitioners
…
Mr. Karma Vivan a/w Mr. Neel Panalikar, Mr. Hormuz Mehta, Kunal
Bilaney i/b J. Sagar Associates for the petitioners.
Mr. Shriram Kulkarni, a/w Mr. Gaurav Ugale for respondent No.2.
Mr. Tanveer Khan, APP for the State.
DATED : 16th DECEMBER, 2025
JUDGMENT
1. Rule. Rule is made returnable forthwith by consent of parties.
2. The six petitioners, have approached this Court praying for quashing and setting aside of the FIR No. 194 of 2023 registered with Powai Police Station, invoking Sections 354 and 509 read with 34 of IPC and for quashing of all consequent actions arising from the same. While issuing notice to the respondents on 20/04/2023, interim relief was granted in terms of prayer clause (c) of the Petition, as a result of which the investigation of the subject FIR registered at Powai Police Station is stayed.
3. On the petition being listed before us, we have heard Advocate Karma Vivan for the petitioners along with Mr. Shriram Kulkarni for ASHISH SAHEBRAO SAHEBRAO MHASKE respondent no.2, the complainant, whereas the State is represented by Mr. Tanveer Khan, Additional Public Prosecutor.
4. The genesis of the rival contention advanced before us, find place in the complaint lodged by the complainant aged 36 years who made a grievance that while she was working in a private company as H.R. Manager, she was subjected to harassment with a deliberate intention of outraging her modesty. The complaint alleged that she was appointed as H.R. Manager on 16/08/2022 and as per the company policy for appointment of new recruits, she was put on probationary period of three months. According to her, the company under which she was working was a licensee of Zepto and the offices of both the companies were located in the same building, and therefore there used to be interaction between the employees of both the companies. Since she was entrusted with the recruitment of new employees and their removal, many employees used to approach her with their difficulties and complaints, but this was not approved by Mr. Ronal Sequira (Chief Custom Officer) i.e. accused no.6 and he raked up this issue with his friend Mr. Pradeep Bilwa (Vice President). As a consequence of this, in September, 2022, Pradeep Bilwa gave her insulting treatment with reference to her work and it is alleged by her that he treated her in a similar fashion on two more occasions. This constrained her to approach Ms. Sabita Patra (HR-BP) (accused no.1) and she complained about the conduct of Pradeep Bilawa, Dhiren Gwalani and Ronal Sequira, in presence of one other employee. It is also alleged by her that on 20/10/2022, she also forwarded whatsapp message to Roma Bindroo (CHRO) (accused no.5) apprising her about the behaviour of the employees of the company, when she is alleged to have told her that Pradeep and Ronal are the partners in the company and since they run the company, she should please them and did not initiate any action.
5. The complaint specifically make a reference of the incident alleged to have taken place on 8/11/2022, at 7:15 hours when Sabita Patra took her to the meeting room though she was not connected with the subject, where Pradeep Bilawa, Dhiren Gwalani, Shailesh Mahale as well as Ronal Sequira, arrived and they reprimanded her about her work and by raising their voice, caused to insult her. She further alleged that the three accused persons, wrongfully touched her from back of the chair on which she was sitting and Pradeep snatched her phone, while she was in conversation. The incident disturbed her to great extent and therefore she sought permission to work from home by forwarding a whatsapp message to Sabita Patra and continued to work from home. However, on 14/11/2022, on account of her nonperformance she was removed from work and this shocked her. On 18/11/2022 as per the complaint she addressed an email to CEO of the Company along with the necessary papers, but it is her grievance that when she made inquiries whether any action is initiated against them under the POSH (Protection of Women from Sexual Harassment), Act, 2013, no action was taken against them.
6. It is this complaint lodged by respondent no.2, resulted in invocation of Section 354, 509 r/w 34 of IPC against all accused persons, who are petitioners before us. Being aggrieved by the registration of the C.R. arraigning the petitioners as accused, they have approached the Court and it is the contention raised in the petition that the incident narrated by the complainant resulting into invocation of Section 354, 509 r/w 34 of IPC, is her sheer imagination and infact as she was reprimanded about her nonperformance, she made wild accusations against all the petitioners, by way of vengeance. It is urged before us by Mr. Karma Vivan that if the alleged incident had taken place on 8/11/2022, the complainant reported the incident only on 30/03/2023 almost 4 months after the alleged incident took place. It is submitted that the respondent no.2 was recruited only on 16/8/2022 and the meeting, where she alleged that she was subjected to harassment, was scheduled on 8/11/2022. Thereafter, she absented from work without seeking necessary permission from the superior and this issue was flagged by Ronal Sequira, petitioner no.6, and e-mail communication that are exchanged between the two which is indicative that the complainant did not follow the office discipline. This resulted in issuance of show cause notice to her on 10/11/2022, asking her to be present in the office on the next day, failing which it was indicated that it will be, accepted that there is no explanation to offer and justify her behavior. This was followed by her termination on 14/11/2022, on the ground that she had not followed the company’s policies, and its discipline, which is of utmost importance and therefore her services came to be terminated. On 18/11/2022 she made a grievance about her termination but it is the contention of the learned counsel that she did not make a reference to the allegation of any wrongful touch, but only refered to the insulting treatment and her feeling that she was called in the meeting only to outrage her modesty.
7. According to the petitioners, the statement of the complainant came to be recorded through G-meet Video Call, but she refused to sign this on the pretext that it was to be vetoed through the lawyer. It is also the stand adopted by the petitioners that it was recommended that she should be allowed to agitate her claim before the Internal Complaints Committee (ICC) of either Geddit or Kiranakart by writing on the email address furnished, but she did not avail the remedy. Reliance is placed upon the report of the internal inquiry along with the statement recorded with an inference being drawn that no such incident took place.
8. According to the learned counsel for the petitioners in the aforesaid background, the present case of levelling false accusations would fall within direction no.(7) of State of Haryana vs. Bhajan Lal as it is filed for wreaking vengeance. Apart from this the delay in filing the complaint and the time gap between the alleged incident and the date of lodging complaint according to the learned counsel proves fatal, as it is only after her services were terminated, she chose to lodge a complaint. It is also urged, that the narration in the complaint is also contrary to the complaint of rude behaviour and use of harsh words for performance assessment. In any case it is submitted before us, that the offence under Section 354 is not at all made out as taking the accusation as it is, there is no force or assault involved and more so there is no intention as contemplated under Section 354 of IPC, and therefore, the subject C.R. deserves to be quashed and set aside.
9. The learned counsel Mr. Kulkarni, representing the complainant would place reliance upon the decision of the Apex Court in case of Rupan Deol Bajaj vs. Kanwar Pal Singh Gill[2], where the act of slapping on the posterior part of a women in the presence of a gathering comprising of elite of society, considered along with the overtures in the sequence of events was held to be an act of outraging the modesty of a women. According to Mr. Kulkarni, the modesty of a women is feminine decency and dignity possessed by her. He would also place reliance upon the decisions of the Apex Court in case of Tarkeshwar Sahu vs. State of Bihar[3], to submit that in the offence under Section 354, the reaction of the women is relevant but its absence is not always decisive and the act of the appellant forcibly taking the victim girl to his Gumti with intention of committing illicit intercourse, when the prosecutrix raised alarm and the villagers and her father gathered there, it was held that offence under Section 354 is committed. According to Mr. Kulkarni, it is the complainant’s perception that her modesty has been outraged and she complained about the alleged act of the accused, the superior, but no cognizance was taken, and in any case, whether the accused persons had the intention to outrage her modesty or not will have to be ascertained at the time of trial and while considering the prayer to quash the FIR, the Court is not conducting a mini trial to attribute the intention. In light of the material, according to Mr. Kulkarni, the quashing of the subject C.R. is too premature and if the investigation is permitted to be completed and charge-sheet is allowed to filed, the accusations can be proved in trial.
10. We have heard the respective counsels and also perused the subject C.R. and note that no chargesheet is yet filed, as this Court had restrained its filing.
11. In State of Punjab vs. Major Singh[4], Justice J.R. Mudholkar, as his Lordship, then was noted the divergence of opinion amongst the Judges of the High Court against the decision of the Sessions Judge, who expressed that a child of seven and half month old being incapable of having a developed sense of modesty the offence punishable under Section 354 of IPC is not attracted. Referring the observations of the third learned Judge, Gurdev Singh. J., who had highlighted the object of the provision and it was gainfully reproduced “The object of this provision seems to have been to protect women against indecent behaviour of others which is offensive to morality. The offence is created by Section 354 and Section 509 of Indian Penal Code, as much in the interest of the women concerned, as in the interest of public morality and decent bhaviour. These offences are not only offences against the individual 4 1967 AIR SC 63 but against public morals and society as well, and that object can be achieved only if the word ‘modesty’ is considered to be an attribute of a human female irrespective of the fact whether the female concerned has developed, enough understanding as to appreciate the nature of the act or to realise that it is offensive to decent female behaviour or sense of propriety concerning the relations of a female with others.” Justice Mudholkar, in the wake of above recorded thus: “If the sole test to be applied is the women’s reaction to a particular act, would if not be a variable test depending upon the sensitivity or upbringing of the women? These considerations impel me to reject the test of a women’s individual reaction to the act of the accused. I must, however, confess that it would not be easy to lay down a comprehensive test; but about this much I feel no difficulty. In my judgment when any act done to or in the presence of a women is clearly suggestive of sex according to the common notions of mankind that act must fall within the mischief of this Section.”
12. Offence under Section 354, involve assault or criminal force to a woman with intent to outrage her modesty and the provision read thus: “354. Assault or criminal force to woman with intent to outrage her modesty. – Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, [shall be punished with with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine] “ The terms assault is defined in Section 351 as below:- “351. Assault. – Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.” Similarly, criminal force is assigned a specific meaning in Section 350, in the following words:- “350. Criminal force – Whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.”
13. For attracting the offence of Section 354, an act must involve assault or criminal force applied, with an intention to outrage or knowing it to be likely that it will outrage the modesty of a women. In Rupan Deol Bajaj (supra), the act of slapping on the posterior of a women in presence of public at large was held to be attracting Section 354, as the sequence of events indicated that the slapping was the finale to the earlier overtures of the respondent, which considered together, constituted the requisite culpable intention. It was further held that even presuming that he had no such intention, he must be attributed with such knowledge as the alleged act was committed in presence of a gathering comprising the elite class of the society. It was also recorded that there is nothing in the FIR to indicate, even remotely that the indecent act was committed by the respondent accidentally or by mistake or it was a slip and therefore it was held that apart from the offence of the Section 354 of the IPC, an offence under Section 509 has been made out on the allegations contained in the FIR as the words used and the gestures made by the respondent were intended to insult the modesty of the appellant.
14. The essential ingredient of the offence punishable under Section 354 of Indian Penal Code are, that the person assaulted must be a women and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined but it is well accepted that essence of a woman’s modesty is her sex and the culpable intention of the accused is the crux of the matter. Modesty has been described as an attribute inherently possessed by a woman, it is a virtue which is attached to her, owing to her sex and any deliberate intention to outrage it would attract offence under Section 354 of IPC. Modesty being described as a quality relating to a woman, its outraging must necessarily involve an indecent behaviour in contrast to the decorous manner opposite to the chaste behaviour.
15. In light of the aforesaid, the sequence of events placed before us and the act complained of, we are called upon to determine whether the offence under Section 354 is attracted. We have perused the accusations in the complaint filed by the respondent no.2. It is her allegation that when she was called in the meeting at 7:15 hours, by petitioner no.1, a lady, the other four accused persons were present and they humiliated her by using wrongful language in regards to her working. The allegation which resulted invocation of Section 354 as against accused no.2, 3, and 4, was recorded in the complaint as below:- “Similarly, Pradeep Bilawa, Dhiren Gwalani, Shailesh Mahale wrongfully touched me from behind, while I was seated on the chair.” It is not the accusation of the complainant that the above act was done with an intention.
16. To constitute an offence under section 354, it necessarily must involve assault or criminal force. Assault is any gesture or any preparation intending or knowing that such gesture will cause any person present to apprehend that a person making that gesture is about to use criminal force on that person. The explanation appended to Section 351 clarify that mere words do not amount to assault, but the words which a person uses may give to his gesture a meaning and it may amount to an assault. On the other hand, for bringing any act into the definition of criminal force, it necessarily contemplate use of force to any person, without that persons consent, in order to the committing of an offence or intending by the use of such force to cause any injury, fear or annoyance to the person to whom the force is used. The allegation of the complainant is that, while passing by her, the three accused persons intentionally touched her from behind while she was seated in a chair and Pradeep, snatched her phone. It is not specified by her as to which part of her body was touched by them though she alleged that the touch was intentional and she attributed the same act to all the three accused persons indicating that simultaneously they touched her, but according to her she was touched wrongfully from behind and if this act is attributed to the accused person to be done intentionally, the element of criminal force or assault is conspicuously absent. Moreover, the intention or knowledge in committing the said act, which is attributed by her, is also not evidently present as according to the complainant herself it is while coming and going (येता-जाता), she was touched.
17. Another aspect of the matter is that if the complainant was subjected to such objectionable act on 8/11/2022 why she waited till 30/03/2023 for lodging of the complaint, as if she had felt that her modesty was outraged, she ought to have reported the incident immediately as no woman is expected to tolerate an act, which according to her is outrageous and if the incident had occurred, she ought to have immediately reported the matter, but there is no explanation offered in the complaint as to why she kept silent. Apart from this, as far as the accusations against accused no.1, petitioner no.1, is only her version that when she made grievance to her about Pradeep and Ronal, she is alleged to have told her that they run the company and she should keep them happy. In this accusation also, there is no ingredient of outraging modesty, as keeping happy is not only suggestive of any sexual favours but also keeping pleased or happy in the sense of the work culture and it can also be related to please the employer by good work, conduct, performance, etc., and therefore we do not find any offence made out even against petitioner no.1.
18. Infact, we find that the management attempted to take cognizance of her grievance and for this purpose recorded her statement, which she refused to sign and in her statement, where she referred to the meeting held on 8/11/2022 when her performance was discussed and in this statement she did not at all make reference to the act of she being touched inappropriately. In the statement, when she was specifically asked whether she had made any written complaint to the company, she responded by stating that it would not have made any sense since Ronal Sequira and she were part of the POSH Committee and she spoke to Sabita Patra and Roma Bindroo but it was only verbal conversation but nothing in writing. When again asked about why she felt that her modesty was outraged in the meeting held on 8/11/2022, she answered that firstly Pradeep Bilwa snatched her phone and secondly he was brushing while passing and that was not okay with her. The version of respondent no.2 in her statement is contrary to the version in the complaint resulting into filing of FIR and therefore her accusations in the complaint cannot be trusted fully.
19. In the internal proceedings conducted by the management, the statements of the employees, who were present in the room were recorded, who in unison stated in the meeting, the performance of the complainant was discussed and she was found completely lacking in every area of performance and such serious concerns were expressed, as she was unaware where to download the Onsurity enrollment report which was the basic basis for reconciliation of the Mediclaim. It is denied that she was treated rudely but it has surfaced from the statements of the said persons that she was made to answer certain questions relating to her performance and as she was found extremely low on performance. Ronal Sequira specifically stated that in the meeting, the nonperformance of the task assigned to the complainant were discussed and she was instructed that she should report to him including her leave, since the work of the company was carried out under the guidance of seniors, but despite this, she did not come to the office without informing anyone and on her own she continued to work from home.
20. On recording of the statements of the employees alleged to be involved in the incident, the General Counsel of Kiranakart Technologies forwarded report to the Founder and CEO on 24/02/2023, informing that the statements of the complainant Chetan Kori, Roma Bindroo, Chief Human Resource Officer, Pradeep Bilawa, Sabita Patra, Shailesh Mahale, Deepa Gujaran, and Ronal Sequira were recorded on various dates. Upon evaluating the statements and the allegations levelled in the complaint, a detail report was prepared to ascertain whether the complainant was treated in an unprofessional and rude manner with an intention of outraging her modesty at the Team meeting and the following conclusion is drawn:- “3.6.[4] From the interviews conducted, there is no evidence to support the allegation that Chetna was cornered and questioned during the Team Meeting, or that the purpose of the meeting was to outrage her modesty. Sabita and Ronel both confirmed that the purpose of the meeting was to discuss Chetna’s performance. All questions posed to her during the Team Meeting were in relation to her duties as HR Manager and were aimed at assessing her capabilities. Further, Chetna appears to have accepted the shortcomings pointed out to her during the meeting, which was corroborated by both Sabita and Ronel. Finally, as Chetna was unable to provide any further details on the questions that were aimed at outraging her modesty, this allegation remains unsubstantiated.”
21. This apart, the report also analyse the allegation of Pradeep snatching the phone from her hand and subsequently brushing past her during the team meeting, making her feel uncomfortable and the opinion expressed record thus:- “3.7.[2] When interviewed, Sabita, Shailesh and Ronel also confirmed that there was no physical contact between Pradeep and Chetna during the Team Meeting. According to Sabita, there was no need for Pradeep to snatch the phone from Chetna since the call was on speakerphone. Thus, there was no need to pick up the phone at all. Ronel also stated that he was “100% sure” that Pradeep did not snatch the phone from Chetna. Further, according to Ronel, Chetna did not exhibit any signs of discomfort either. As the Team Meeting was conducted in a large enough room, everyone was seated with enough space between them, and there was no physical contact between Chetna and Pradeep. Given the statements of other witnesses present at the meeting, the allegation that Pradeep snatched the phone from Chetna or that he brushed past her making her feel uncomfortable, in my opinion, is without merit.”
22. The report contain the following recommendations:- “5. RECOMMENDATIONS 5.[1] As part of the Complaint and statements made, Cheina has also classified these allegations as “POSH cases.” Given the foregoing, she should be allowed to agitate her claims before the Internal Complaints Committee of either Geddit or Kiranakart. However, if Chetna were to raise a formal POSH complaint, then all conflicted members who are mentioned in the Complaint and her statement must recuse themselves as committee members. 5.[2] As part of her Complaint, Chetna has also demanded proof of any performance-based communications or documentation to support her dismissal. As this falls outside the scope of Kiranakart’s jurisdiction, it is advised that she requests for such documentation from the relevant employees at Geddit.”
23. Pursuant to the said report being forwarded to the CEO, the General Counsel – Zepto addressed the following communication to the complaint. “Dear Chetana, I writ to you under the instructions of Aadit, in connection with the complaint you raised vide, email dated November 18, 2022, on November, 21, 2022. I further refer to our online meeting dated 4th January 2023. I state that the particulars of the allegations made by you, have been analyzed in light of the available evidence and statement of all parties. Under the facts and circumstances, it is concluded that all allegations levelled by you are either unsubstantiated or hold no merit. However, As part of the Complaint and statements made, you have also classified allegations as “POSH cases.” Given the foregoing, I recommend that you should be allowed to agitate your claims before the Internal Complaints Committee (ICC) of either Geddit or Kiranakart. In case you wish to agitate your claim before the ICC of Kiranakart, you can do so by writing to [iccommitee@zeptonow.com] immediately. In addition, you also demanded proof of any performance-based communications or documentation to support your dismissal. As this falls outside the scope of Kiranakart’s jurisdiction, it is advised that you may request for such documentation from the relevant employees at Geddit Convenience Private Limited.” Upon the FIR being registered the report of the internal inquiry along with the documents were also forwarded to the Station House Officer, Powai Police station.
24. It is also pertinent to note that the complainant refused to sign the statement and despite she being asked to sign the same and even given an opportunity to change her statement if she desired to do so, she maintained her stand that the case involves multiple POSH and section 354 and she kept on inquring as to why steps are not taken and on every occasion she received response at the end of the management, but when she sought presence of her lawyer in the meeting, she was told that since the internal investigation was being carried out, the lawyer may not be permitted.
25. What is pertinent to note is the exchange of communication between the petitioner no.6 and the respondent no.2, as she suddenly remained absent from the office without any intimation and the respondent no.6, being Incharge, forewarned her that she could not remain absent without intimation and she was asked to join the work, as it was not the policy of the company to permit work from home. This is followed by issuance of a show cause notice to her on 10/11/2022 by alleging that the company did not encourage work from home but if it is needed, the same is permitted by prior approval from the stakeholder but on many occasions she has failed to seek approval. Ronal Sequira the Chief Custom Officer, by referring to her behaviour described it to be highly unacceptable and advised her to be in the office on the next day i.e. 11/11/2022 to provide explanation, and even a last chance was given to her by addressing a communication. However, when she failed to respond, her services came to be terminated.
26. When we specifically inquired with Mr. Kulkarni, whether the complainant has raised challenge to her termination, his answer is in the negative. Mr. Kulkarni has urged before us that immediately after the incident, she had send a whatsapp message to her superior narrating the happenings in the meeting when she was wrongfully touched. However, when we asked him to produce the whatsapp message, in presence of the complainant in the Court, he was unable to do so.
27. On consideration of the allegations in the FIR with the surrounding circumstances, we arrive at a conclusion that the present case, which seeks quashing of the FIR by invoking our inherent jurisdiction available under Section 482 of the Code of Criminal Procedure, fall within the situation contemplated in clause (7) of Bhajanlal (supra) to the following effect:- “(7) The criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal grudge”. True it is, that the power of quashing criminal proceedings deserve exercise sparingly and with circumspection and that too in the rarest of rare cases, as the Court will not be justified in embarking upon an inquiry about the genuineness or otherwise of the allegations made in the complaint. But when on careful reading of the accusations levelled in the complaint and the surrounding circumstances, which include the internal inquiry being conducted at the management level and an inference being drawn that no such incident had taken place, we find that subjecting to the petitioners, who are holding responsible posts as the petitioner no.1 being the Associate Director, Central and City Operation of Kiranakarat Technologies, petitioner no.2, the Vice President and petitioner no.4 and 5 being the Associate Director and Chief Human Resource Officer of Kiranakart and similarly petitioner no.3 is an employee of Geddit and petitioner no.6 is the Chief Custom Officer of Geddit, to be abusing the process of law. The complainant was recently recruited by the petitioners and it evidently appear to us that her performance was not upto the mark and she was reprimanded on several occasions in that regard and in fact her performance review was postponed to offer her an opportunity. It is incomprehensible that all the accused persons including petitioner no.1, and 5 being females ganged up against the complainant, without any rhyme or reason and they became privy to the act attributed to the other 3 accused persons for wrongfully touching her. The complainant, on the other hand, was hesitant even in signing the statement, which she gave during the course of inquiry and though it was suggested to her that she can file a complaint before the Internal Complaints Committee, she never chose to do so but though it fit to lodge the FIR. In our opinion, the present case strictly falls within clause (7) of the Bhajan Lal (supra), as we find that upon the complaint being terminated by the respondents, she thought of a way up and after four months of termination of her service lodged a report alleging that her modesty was outraged.
28. In the wake of the aforesaid, since we find that the continuation of the criminal proceedings against the petitioners would amount to abuse of process of law, as we are of the view that we can prevent the misuse of law at the hands of the complainant, who has lodged the FIR with the Powai Police Station, with the intention of seeking vengeance. From reading of the FIR since we are satisfied that the offence under Section 354 is not made out against the petitioners and there are sufficient grounds in not proceeding against the petitioners and continuation of proceedings against them, as would result in grave injustice. We are of the firm view that the present case is a fit case for us to exercise the inherent power under Section 482, of the Code of Criminal Procedure, 1973, we quash the subject FIR, as the investigation has already been stayed and has not progressed ahead. Writ Petition is made absolute in above terms. (SHYAM C. CHANDAK,J) (BHARATI DANGRE, J.)