High Court

Legal Reasoning

120 APPLN.1710.2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL APPLICATION NO. 1710 OF 2022Dattatraya S/o Pandurang Thombre,Age-58 years, Occ. Retired,R/o. Plot No. 05, Survey No. 27,Amarnath Hsg. Society, Behind Chhatrapati Hall, Harsul, Aurangabad.… ApplicantVersus1.The State of MaharashtraThrough Harsul Police Station, Aurangabad.2.Sangita w/o Babasaheb JawleAge: 42 years, Occ: Household, R/o. Plot No. 06, Survey No. 27, Amarnath Hsg. Society, Behind Chhatrapati Hall, Harsul, Aurangabad.… Respondents...Mr. Rahul G. Joshi, h/f Mr. S. N. Lale Yelwatkar, Advocate for Applicant.Mr. G. A. Kulkarni, APP for Respondent No.1 / State.Mr. P. P. More, Advocate for Respondent No.2....CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :24th February, 2025. Per Court:.Present application has been filed under Section 482 ofthe Code of Criminal Procedure for quashing the proceedings inR.C.C. No.1829 of 2021, pending before the learned JudicialMagistrate First Class, Aurangabad, arising out of FIR vide C.R. No.45 220 APPLN.1710.2022.odtof 2021, dated 13th March, 2021, registered with Harsool PoliceStation, Aurangabad City, for the offence punishable under Sections354-A, 354-D, 504 and 506 of the Indian Penal Code. 2Heard the learned counsel for the applicants, the learnedAPP and the learned counsel for respondent No.2. 3The learned counsel appearing for the applicant has takenus through the contents of FIR as well as the contents of the charge-sheet. He submits that even if the record is taken as it is, it does notattract the offence under which the FIR has been lodged as well as thecharge-sheet is filed. He submits that the statement of the informantallegedly recorded under Section 164 of the Cr.P.C. was not suppliedto the applicant. However, when the said statement is made availableto him by the learned APP, on the last occasion, and after goingthrough the same, it can be seen that the said statement under Section164 of the Cr.P.C. recorded on 16th March, 2021 by the learnedMagistrate, is full of improvements. The applicant was takingcontinuous objection in respect of construction activity undertaken bythe husband of the informant with the appropriate authorities and as aresult of which the inquiry was initiated. The correspondence wouldshow that the applicant was raising objection for the encroachmentand ultimately in respect of an incident dated 14th March, 2021, offence 320 APPLN.1710.2022.odtcame to be registered with the same police station on 20th January,2025 vide C.R. No.22 of 2025, for the offence punishable underSections 452, 323, 504 and 506 read with 34 of the IPC, against oneAnkush Daud and PSI Nitin Kame. It was also alleged that the wife ofsaid accused Ankush Daud, had made false complaint against theapplicant and she is also the witness, in the present case, whosestatement is stated to be recorded on 3rd April, 2021. Therefore, thepresent FIR is filed with mala-fide intention and therefore, it would beunjust to ask the applicant to face the trial. 4Per contra, the learned APP as well as the learnedcounsel for respondent No.2 submit that perusal of the FIR and othermaterial on record would also disclose the offence punishable underSection 509 of the IPC. It would be then the learned Magistrate todecide under which provisions the charge will have to be recorded.Therefore, this is not a fit case where the FIR as well as the charge-sheet should be quashed. 5Here, respondent No.2 had lodged the FIR on 13th March,2021, stating that the first incident had occurred somewhere inDecember 2019. At that time, the wife of the present applicant was illand had gone to her parental home, where she had resided for about amonth. The applicant had gone to informant and demanded Roti. At 420 APPLN.1710.2022.odtthat time, the informant’s husband permitted the applicant to take Rotias well as Sabzi i.e. cooked vegetable and accordingly, it was thensupplied by the informant. Thereafter, the applicant started to go to thehouse of informant in absence of her husband and at that time, sheused to give him food to eat. She then states that the applicant with illintention told her that he would give her rupees 10-20 thousand, butshe should not tell the said fact to her husband, otherwise he woulddefame her and lodge a false case against her husband. Theinformant then had resisted the same. Thereafter, the applicant hadnot gone to her house for taking meals. Thus, it is to be noted thatfrom this incident, it cannot be stated that any offence is made out.Mere use of the words that he was looking at her with ill intention, isthen not reflected in the action and when she objected, it appears thatthe applicant had stopped from going to her house for meals. 6The informant then states that after some days, theapplicant had gone to her house in absence of her husband and askedher to stitch his pant. When replied that she is not giving stitching toold clothes, the informant has stated that she is doing the work ofsewing blouse from house. But then after she refused, it appears thatthe same incident had not repeated. The informant then says that theapplicant was still visiting her house and used to make gestures withthe help of his face and hands, which were obscene. But then she 520 APPLN.1710.2022.odtsays that she had not disclosed the said fact to her husband since theyare residing in the same Galli. It is to be noted that when she had notraised any objection and not even told the said fact to anybody, nowshe has tried to say everything for which she had no intention in thepast to lodge a report. She has not even given the details of thegestures. Now, as regards the incident dated 10th March, 2021 at08:00 am, she states that the applicant had given obscene gestureswhen she was watering the construction of her house and then hesays that he had also given threat to her. In her statement underSection 164 of the Cr.P.C. she has explained the said act. The FIR isnot an encyclopedia and the statement under Section 164 of theCr.P.C. is recorded three days after the FIR and therefore, the learnedcounsel for the applicant submits that it is an improvement. Here,unless an opportunity is given to the informant to explain regarding theabsence, we cannot directly come to the conclusion that the saidcontradiction / addition is with some ulterior motive. Here, the basehas been given in that FIR and explanation appears to be in herstatement under Section 164 of the Cr.P.C. Of course, this is ourprima-facie opinion. Thus, taking into consideration her FIR as well asthe statement under Section 164 of the Cr.P.C., it can be certainly saidthat the ingredients of offence under Section 354-A of IPC i.e. sexualharassment and punishment for sexual harassment, are not made out.For proving the said offence, it has to be even prima-facie shown by 620 APPLN.1710.2022.odtthe prosecution that the man committing the said offence i.e. thepresent applicant either had physical contact and advances involvingunwelcome and explicit sexual overtures; or a demand or request forsexual favours; or showing pornography against the will of a woman;or making sexually coloured remarks. Here, there is neither physicalcontact coupled with the advances involving unwelcome and explicitsexual overtures; nor there is specific demand or request for sexualfavours; nor there was showing of any pornography against the will ofthe informant, nor there were any sexually coloured remarks. Same isthe case as regards the offence under Section 354-D of the IPC, whichprescribes punishment for stalking. A person is said to havecommitted stalking when he follows a woman and contacts her, orattempts to contact her to foster personal interaction repeatedlydespite a clear indication of disinterest by such woman. Here, there isno such situation. Further, the accused had not monitored the use bythe informant of the internet, email or any other form of electroniccommunication. However, as regards the offence under Section 503 ofthe IPC i.e. criminal intimidation punishable under Section 506 of theIPC, are certainly made out, when it is stated that she was threatenedwith dire consequences if she discloses the incident. However, thereare no ingredients for the offence punishable under Section 504 of theIPC i.e. intentional insult with intent to provoke breach of the peace. 720 APPLN.1710.2022.odt7Now, the learned APP submits that the ingredients ofSection 509 of the IPC are attracting. Section 509 of the IPCprescribes for the offence where the modesty of a woman is insultedeither by word and/or by gesture or act. Here, a person, who intendsto insult the modesty of a woman, utters any word, makes any soundor gesture, or exhibits any object, intending that such word or soundshall be heard, or that such gesture or object shall be seen, by suchwoman, or intrudes upon the privacy of such woman, then such personis said to have committed the offence punishable under Section 509 ofthe IPC. Taking into consideration the contents of the FIR, prima-facie,together with the statement under Section 164 of the Cr.P.C., prima-facie, certainly there was exhibiting of the object. Neither the learnedMagistrate nor this Court is powerless to consider any other offence,which are transpiring from the FIR as well as the contents of thecharge-sheet. The learned Magistrate is also not bound to takecognizance of the offence, which has been stated as per the charge-sheet. It is rather the duty of the Magistrate to consider the entire factsand material and then should take the cognizance of the offence /offences, which are transpiring.8The contents of the charge-sheet would show that there isstatement of the husband of informant, who was admittedly not presentat the time of incident, but he states that the informant had informed 820 APPLN.1710.2022.odthim about the incidences. Then there are statements of threewitnesses, including the statement of witness Yogita Daud, who is thewife of accused Ankush Daund from C.R. No.22 of 2025, lodged at thebehest of the present applicant. Interestingly, it is stated in the FIRitself that he had made a complaint application dated 22nd March, 2021and according to him, A.S.I. Ambadas Sonne had made inquiry andhad taken his false statement. While making submissions, there is noexplanation on behalf of the applicant as to why he had not filedprivate complaint by adopting the procedure laid down in LalitaKumari Vs. State of Uttar Pradesh and others, [2014 (2) SCC 1].There is a communication dated 14th August, 2024 that has been givento the applicant by ACP, Second Division, Chhatrapati Sambhajinagar,wherein it appears that the applicant had given threat of selfimmolation on 15th August, 2024 in his application dated 22nd July,2024 and then after making inquiry, it was assured that within 15 days,the decision would be given and he should therefore, stay away fromhis decision of self immolation. When legal recourse was availableand without adopting that, it appears that the threat was given to thepolice and then the FIR has been lodged. Any way, even if we keepthe statement of Yogita Daud aside, yet there are two other ladies also,who have given statements. They may not be present at the sameplace, but they say that the informant had informed them about thebehaviour of the applicant and they have made statements regarding 920 APPLN.1710.2022.odtthe behaviour of the applicant in their statements under Section 161 ofthe Cr.P.C.9Taking into consideration the above discussion, we are ofthe opinion that the application deserves to be partly allowed only tothe extent of the offences of which the ingredients are not made out.Hence, the following order is passed:-O R D E RI.The application stands partly allowed.II.The proceedings R.C.C. No.1829 of 2021, pendingbefore the learned Judicial Magistrate First Class,Aurangabad, arising out of FIR vide C.R. No.45 of2021, dated 13th March, 2021, registered with HarsoolPolice Station, Aurangabad City, stands quashed andset aside as against the applicant, to the extent ofSections 354-A, 354-D and 504 of the Indian PenalCode.III.However, taking into consideration the observationsabove, we direct the learned Judicial Magistrate FirstClass, Aurangabad, to frame the charge / pleaaccordingly. [ SANJAY A. DESHMUKH, J. ] [ SMT. VIBHA KANKANWADI, J. ]nga