Vijay Choudhary v. State of Maharashtra

1) Petitioner has invoked jurisdiction of this Court under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (for short, ‘the Cr.P.C.’ ) for quashing of the First Information Report No.347 of 2016, dated 24th August, 2016, under Sections 354-A and 509 of the Indian Penal Code (for short, ‘the IPC’ ), registered with Bhandup Police Station, Mumbai, at the instance of Respondent No.2, the informant.

2) Heard Mr. Sanjay Kumar, learned counsel for the Petitioner, Mr. Patil learned APP for the Respondent No.1-State and Ms. Meenaz Kakalia, learned Advocate for the Respondent No.2.

3) Record reveals that, by an Order dated 5th October, 2017, this Court had granted ad-interim relief in favour of Petitioner. By a subsequent Order dated 16th January, 2018, Rule was issued in the Petition. The adinterim relief granted by an Order dated 5th October, 2017 was confirmed as interim relief.

4) The Respondent No.2, first informant, has lodged the crime in question on 24th August, 2016 under Sections 354-A and 509 of the IPC. It is stated in the FIR that, she is residing at the address mentioned therein along with her husband. She was working as a Center Manager in Max Life Insurance Company situated at Goregaon Link Road, Bhandup (West), Mumbai for last about one year, prior to lodging of FIR. That, her company’s Vice President (H.R.) i.e. the Petitioner herein, stays at Delhi for the office work. He intermittently come to the company’s office at the said address for office work. That, on 20th May, 2016 at about 10.00 a.m., the Petitioner had been to the said office for meeting. After meeting at about 2.30 p.m. to

3.00 p.m. in the noon, Petitioner came to the desk of the Respondent No.2. He was continuously staring at her, so she asked him ‘How can I help you, Sir’, on this, he said that, ‘you are looking sexy and gorgeous’. On the said comment of Petitioner, the Respondent No.2 retorted to him ‘behave yourself’. Due to the said, Petitioner got angry and torn her paper nameplate which was on her desk. While leaving the said place, he threatened Respondent No.2 by saying ‘I will fix you, bitch’, abused her and left the said place. At that relevant time, four to five of her colleagues working in the office were present there. Amongst them, Mr. Tanveer Khan and Mr. Nirmal Paul were present there. They had witnessed this entire incident. After the said incident of 20th May, 2016, the Respondent No.2 complained against the Petitioner with her company team through an email on 30th May, 2016 about the same. However, the company did not take any action against the Petitioner. The Respondent No.2 therefore told to her father about the said incident and thereafter her father also complained to her company team by an email dated 11th August, 2016. Even after the said complaint of her father, her company did not take any action against the Petitioner and therefore she went to police station and lodged present crime. In this brief premise present crime is registered by the

5) Learned counsel for the Petitioner submitted that, the allegations made by the Respondent No.2 in the present crime are fiction of her own imagination. That, the FIR is full of improvements by the Respondent No.2 from her original Complaint dated 30th May, 2016 lodged with the company vide email for mental harassment case and grievance. He submitted that, in the said Complaint dated 30th May, 2016 for an alleged incident of 20th May, 2016 it is stated that, the Petitioner came to her work desk and tore her nameplate with an annoyed look and thrashed it in the dustbin in presence of her colleagues, hurting her self respect, dignity and ethical sentiments. That, the said version was further improved by her father in his email dated 11th August, 2016. However, in both the said Complaints, the alleged sexual remarks made by the Petitioner are absent. He submitted that, on the basis of Complaint dated 30th May, 2016 lodged by the Respondent No.2 with the company, it had referred the said case to the Internal Complaint’s Committee (‘ICC’) as constituted under Section 4 of the Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short, ‘the POSH Act’ ) and the said committee, after conducting detailed inquiry has exonerated the Petitioner from the allegations leveled by the Respondent No.2. He submitted that, various High Courts in India have held that, where the facts giving rise to the criminal complaint have already been investigated by the ICC constituted under the provisions of the POSH Act and have resulted into exoneration of the accused person on merits then a FIR arising out of the same facts cannot be sustained. In support of this contention, he relied on the decisions in the cases of (i) Ashish Chauhan V/s. State (Govt. of NCT of Delhi) & Ors. reported in MANU/DE/0549/2023, (ii) L. Sunil Kumar & Ors. V/s. State of Karnataka & Ors. reported in MANU/KA/5130/2018, (iii)

(iv) Radheshyam Kejriwal V/s. State of West Bengal & Anr. reported in

He submitted that, the present crime is lodged with inordinate delay of 90 days and in view of the law enunciated by the Hon’ble Supreme Court in the case of Thulia Kali V/s. The State of Tamil Nadu reported in (1972) 3 SCC 393, the concocted story as a result of deliberation and consultation cannot be ruled out. He submitted that, in view of the fact that the company had constituted the ICC under the POSH Act and improvements made by the Respondent No.2 while lodging FIR, the Clause Nos. 6 and 7 of guidelines enumerated by the Hon’ble Supreme Court in the case of State of Haryana & Ors. V/s. Bhajan Lal & Ors. reported in 1992 Supp (1) SCC 335, are squarely applicable to the present case. He therefore prayed that, the crime in question may be quashed by allowing the Petition.

6) Per contra, learned Advocate for the Respondent No.2 submitted that, whatever has been stated in the first information report by the Respondent No.2 is true and correct narration of the facts of the incident, occurred on 20th May, 2016. She drew our attention to paragraph No.12 of the reply of the Respondent No.2 and contended that, initially the Respondent No.2 was very perplexed and was unable to decide as to what to do, as the Petitioner herein is holding a very powerful and influential position in the company and complaining against him would not only endanger her present as well as future career. That, ultimately after thinking a lot, she gathered courage to file complaint on 30th May, 2016 by email with the company which was then forwarded to the ICC. Therefore there is delay in lodging the crime. She on instructions submitted that, there are no improvements in her first information report. Learned Advocate for the Respondent No.2 however fairly conceded to the fact that, the Respondent No.2 had earlier lodged a complaint with Boriwali Police Station with similar allegations as in the present crime and the Boriwali Police Station had informed her by its communication dated 18th July, 2016 that, perusal of her complaint reveals a civil dispute and it requested her to approach Civil Court. She submitted that, the Respondent No.2 has annexed the said communication at page No.162 of her Affidavit dated 8th June 2023. She therefore prayed that, present Petition may be dismissed.

7) Record reveals that, even as per the present FIR, the alleged incident of sexual harassment/remarks occurred on 20th May, 2016 between

2.30 p.m. to 3.00 p.m. in presence of two named and other unnamed colleagues of Respondent No.2. The Respondent No.2 thereafter addressed a detailed email to the Senior Officials of Max Life Insurance Company on 30th May, 2016, complaining about alleged incident and harassment by Petitioner and other two officials. As far as the Petitioner is concerned in her initial complaint dated 30th May, 2016, she has stated that, on 20th May, 2016 at Nahur office, the Petitioner came to her work desk and tore her nameplate with an annoyed look and thrashed it in the dustbin in presence of her colleagues hurting her self respect, dignity and ethical sentiments. It is to be noted here that, the Respondent No.2 did not make any allegation of passing sexual remarks by the Petitioner against her in the said first complaint.

7.1) On the basis of her email dated 30th May, 2023, the ICC was constituted for investigating/inquiry of 23 issues raised by the Respondent No.2 as part of her allegations as per her email. It appears from the record that, the Max Life Insurance Company sought clarification from the Petitioner and other officials while conducting inquiry into the email/complaint dated 30th May, 2016 of the Respondent No.2.

7.2) The Respondent No.2 thereafter approached Boriwali Police Station, Mumbai with a complaint dated 18th July, 2016 with similar allegations as have been mentioned in the present FIR. The Boriwali Police Station, Mumbai after conducting preliminary inquiry, by its communication dated 18th July, 2016 informed the Respondent No.2 that, perusal of her complaint reveals a civil dispute and she was directed to approach Civil Court for redressal of her grievance. The said communication issued by Boriwali Police Station to the Respondent No.2 is at page No.162.

7.3) On 27th July, 2016, the Internal Complaint’s Committee Report was forwarded to/shared with the Respondent No.2 by the Max Life Insurance Company.