Karnataka HC: Sexually Harassing In Open Spaces Like Mall & Office Highly Improbable

 The places of sexual contact that is depicted in the complaint is what shocks. The places are at Mindtree office, Forum Mall-Koramangala, Barton Center-M.G.Road, all of which are open places. The petitioner sexually abusing the complainant in such open places cannot but be an allegation that is highly improbable. The police, after investigation, file a charge sheet in the matter, based upon the statement recorded during the investigation.A perusal at the charge sheet would indicate that the allegation against the petitioner is that he has tried to touch the complainant inappropriately wanting to kiss her. Neither the complaint nor the charge sheet would indicate any ingredient of offence under Section 354(A) of the IPC which deals with outraging the modesty of a women. Therefore, the said offence cannot be laid against the petitioner and requires to be obliterated.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL PETITION NO. 697 OF 2020

SRI SAMEER DINAKAR BHOLE Vs  THE STATE OF KARNATAKA

BEFORE

THE HON'BLE MR JUSTICE M.NAGAPRASANNA

DATED:  02ND DAY OF MARCH, 2023

The petitioner is before this Court calling in question an order

dated 19.06.2019 passed by the LVI Additional Chief Metropolitan

Magistrate, Bengaluru rejecting the application of the petitioner

seeking his discharge from the proceedings in C.C.No.26612 of

2017 for offences punishable under Sections 420 and 354(A) of the

IPC.

2. The brief facts as projected by the prosecution are as

follows:

The petitioner is the accused and the 2nd respondent is the

complainant. The petitioner was working as a Delivery Center

Manager of M/s Mindtree Company Limited. The 2nd respondent

joins the Company under the accused on 26.04.2017 and leaves

the Company on 11.08.2017. During the said period she was

working under the accused. Just before the closure of the contract

of the complainant with the Company which was to close on

11.08.2017, she registers a complaint on 08.08.2017 which

becomes a crime in Crime No.311 of 2017 for offences punishable

under Sections 354(A) and 420 of the IPC. Calling in question the

said registration of crime, the petitioner had knocked at the doors

of this Court in Crl.P.No.8172 of 2017 and during the pendency of

the said petition, the police file a charge sheet. On filing of the

charge sheet the petition was disposed as having become

infructuous and reserving liberty to challenge the charge sheet.

Petitioner then files an application under Section 239 of the Cr.P.C.

before the concerned Court seeking his discharge from the

proceedings. The concerned Court in terms of its order dated

19.06.2019 declines to accept the contention and rejects the

application seeking discharge. It is then the petitioner has knocked

at the doors of this Court, yet again, now calling in question the

order dated 19.06.2019 and the entire proceedings in

C.C.No.26612 of 2017.

3. Heard Sri. Anand.B.Muddappa, learned counsel

appearing for the petitioner and Smt. K.P.Yashodha, learned High

Court Government Pleader appearing for respondent No.1.

4. The learned counsel appearing for the petitioner would

contend that the order impugned rejecting the application seeking

discharge bears no application of mind. He would further contend

that the ingredients of Section 354(A) of the IPC are completely

absent in the charge sheet so filed by the police. The petitioner has

neither sexually abused nor harassed the complainant. The

management did not wanted to extent the contract of the

complainant. The complainant somehow wanted to pressurize the

petitioner in recommending extension of contract. Therefore, the

allegations of 354(A) of the IPC are laid against the petitioner

contending that they have happened in an open place in an office or

in the mall which is highly improbable. He would seek quashment

of the entire proceedings.

5. Learned High Court Government Pleader would however

take this Court to the statement of witnesses to demonstrate that

there are in fact allegations against the petitioner and would submit

that it is a matter of trial for the petitioner to come out clean.

6. The 2nd respondent/complainant was not unrepresented

despite serve of notice. The matter was dictated and the petition

was allowed on 01.08.2022. Before the order could be signed, this

Court thought it fit to give one more opportunity for the

complainant to be represented and further, the petitioner to be

heard. The matter was again posted for further hearing and the

second respondent - complainant again remained unrepresented,

though the matter was listed on several occasions, the petitioner

was again heard and the matter was reserved for its judgment.

7. I have given my anxious consideration to the

contentions of respective learned counsel and have perused the

material on record.

8. The afore-narrated facts are not in dispute. The

petitioner working in the post of Delivery Center Management at

M/s Mindtree Company Limited is a matter of record. The

complainant joins the said Company to work under the petitioner on

a contract that was to be in subsistence between 26.04.2017 and

11.08.2017. The entire allegations are made during this period.

Just before the contract of the complainant could come to an end, a

complaint comes to be registered against the petitioner. Since the

issue sprang from the complaint, it is germane to notice the

complaint and it is quoted for the purpose of ready reference:

“To,

Police inspector

Kengeri police station

Bangalore city

From,

Anagha sonde

D/o niranjan murthy r sonde

Age : 29 years

Flat No, C1 Kamadhenu apartments

# 100, Diagonal Road, V.V. Puram

Bangalore - 560004

Sir,

Subject: cheating and sexual harassment.

Sameer Bhole has promised a lot of things to me.

This has been going on from the past 3 months. Now he has

got back on his word and broken the promise. This proves

his cheating. He also got physical with me more than once.

I jointed Mindtree on 26th April 2017 and my contract is

closing on 11th August 2017. He also promised to convert

my job into a permanent Job if I gave in to his advances. He

has also involved with me in a sexual manner several times

in there past 3 months. Neither he is marrying me nor he is

fulfilling the promise he made to me. He has cheated me for

his selfish needs. I feel Used as a commodity for sexual

pleasure.

Place of sexual contact:- 1)Mindtree office

2) forum, kormangala

3)Barton center, M.G. Road

Sameer Bhole is working as delivery center Manager

in Mindtree. Please take legal action on Sameer Bhole.”

The narration in the complaint is that she was working under

the petitioner, the petitioner has used and sexually harassed her

several times on the promise that he would get the contract

extended and he is neither marrying her nor fulfilling the promise,

is the allegation in the complaint. The places of sexual contact that

is depicted in the complaint is what shocks. The places are at

Mindtree office, Forum Mall-Koramangala, Barton Center-M.G.Road,

all of which are open places. The petitioner sexually abusing the

complainant in such open places cannot but be an allegation that is

highly improbable. The police, after investigation, file a charge

sheet in the matter, based upon the statement recorded during the

investigation. The summary of the charge sheet reads as follows:

{Vernacular omitted}

It is germane to notice the foundation of the chargesheet so

laid i.e., the statement under Section 164 of the Cr.P.C. rendered

by the complainant and it reads as follows:

{Vernacular omitted}

The statement records that the complainant had been

approached by the advocate of the petitioner and she was waiting

for a compromise to be arrived at and nobody has come forward for

such compromise and also alleges that the wife of the petitioner

and the petitioner have abused her over Whatsapp. Based upon this

statement the aforesaid charge sheet is filed. A perusal at the

charge sheet would indicate that the allegation against the

petitioner is that he has tried to touch the complainant

inappropriately wanting to kiss her. Neither the complaint nor the

charge sheet would indicate any ingredient of offence under Section

354(A) of the IPC which deals with outraging the modesty of a

women. Therefore, the said offence cannot be laid against the

petitioner and requires to be obliterated.

9. The other offence alleged against the petitioner is the one

punishable under Section 420 of the IPC. For an offence under

Section 420 of the IPC, the ingredients as obtaining under Section

415 of the IPC must be present. The allegation of the complainant

is that the petitioner has cheated and breached the promise of

marriage and therefore, the offence under Section 420 of the IPC

would become maintainable. This is plainly contrary to law, as

breach of promise of marriage cannot become an offence under

Section 420 of the IPC is the law laid down by the Apex and that of

this Court in plethora of cases. Therefore, the said offence also

cannot be laid against the petitioner.

10. In the light of both the offences laying no foundation,

either in the complaint or in the charge sheet, the concerned Court

ought to have considered the application of the petitioner for

discharge and passed appropriate orders, in accordance with law.

Though at the relevant point in time i.e., when the application for

discharge came to be rejected the law was not this lucid as it is at

this point in time, finding no fault with the perfunctory order passed

by the learned Magistrate in rejecting the application of the

petitioner for discharge, I deem it appropriate to obliterate the

proceedings in C.C.No.26612 of 2017 against the petitioner, failing

which, it would become an abuse of the process of the law and

result in miscarriage of justice and run foul of the judgment of the

Apex Court in the case of STATE OF HARYANA V. BHAJAN LAL

(1992 Supp. 1 SCC 335) wherein the Apex Court holds as

follows:

“102. In the backdrop of the interpretation of the

various relevant provisions of the Code under Chapter XIV

and of the principles of law enunciated by this Court in a

series of decisions relating to the exercise of the

extraordinary power under Article 226 or the inherent powers

under Section 482 of the Code which we have extracted and

reproduced above, we give the following categories of cases

by way of illustration wherein such power could be exercised

either to prevent abuse of the process of any court or

otherwise to secure the ends of justice, though it may not be

possible to lay down any precise, clearly defined and

sufficiently channelised and inflexible guidelines or rigid

formulae and to give an exhaustive list of myriad kinds of

cases wherein such power should be exercised.

(1) Where the allegations made in the first

information report or 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

a case against the accused.

(2) Where the allegations in the first information

report and other materials, if any, accompanying the FIR do

not disclose a cognizable offence, justifying an investigation

by police officers under Section 156(1) of the Code except

under an order of a Magistrate within the purview of Section

155(2) of the Code.

(3) Where the uncontroverted allegations made in the

FIR or complaint and the evidence collected in support of the

same do not disclose the commission of any offence and

make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute

a cognizable offence but constitute only a noncognizable

offence, no investigation is permitted by a police officer

without an order of a Magistrate as contemplated under

Section 155(2) of the Code.

(5) Where the allegations made in the FIR or

complaint are so absurd and inherently improbable on the

basis of which no 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.”

16. The principles laid down by this Court have

consistently been followed, as well as in the recent judgment

of three Judge judgment of this Court in Neeharika

Infrastructure Pvt. Ltd. v. State of Maharashtra2.

(Emphasis supplied)

Two of the postulates laid down by the Apex Court hereinabove

would enure to the benefit of the petitioner resulting in quashment

of the proceedings.

11. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition is allowed.

(ii) The proceedings in C.C.No.26612/2017 pending on

the file of the LVI Additional Chief Metropolitan

Magistrate, Bengaluru stand quashed.

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