Bijaya Mishra v. The State of Jharkhand and Another
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 770 of 2016 Bijaya Mishra .... …Petitioner Versus The State of Jharkhand and Another ..... …Opp. Parties CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ------ For the Petitioner: Mr. Indrajit Sinha, Advocate Mr. Avinash Kumar, Advocate For the State :Mr. Nawin Kumar Singh, A.P.P. For the O.P. No.2 : Mr. Sanjoy Piprawal, Advocate …………… 09/ Dated:-03.01.2024 Mr. Sanjoy Piprawal, learned counsel for the O.P. No.2 submits that counter affidavit has already been served upon the petitioner, however, the same has not been filed as the matter was on Board. 2. In view of such submission, the said counter affidavit is taken on record. 3. Heard Mr. Indrajit Sinha, learned counsel for the petitioner, Mr. Nawin Kumar Singh, learned counsel for the State and Mr. Sanjoy Piprawal, learned counsel for the O.P. No.2. 4. This petition has been filed for quashing the entire criminal proceeding including order taking cognizance dated 17.12.2015 arising out of Complaint Case No. 1016 of 2015, pending in the Court of learned C.J.M., Ranchi. 5. The Complaint case has been filed alleging therein that the complainant is a professor in the field of Operations Management Area employed in the Indian Institute of Management (IIM) posted at Ranchi since last three years and he is highly qualified individuals having the educational qualification of BE (NIT, Durgapur), M.Tech (Indian Statistical Institute, Kolkata) & Ph.D. (IIT, Bombay). During the entire period of his service in IIM, Ranchi the complainant has a good and remarkable performance in his job 2 and during the course of his employment as Professor at IIM Ranchi he has taught five different courses in the area of Operation Management and in this period he has successfully published outstanding articles in two of the International Journals namely Quality Engineering and International Journal of Bank Marketing and in addition to this, the complainant has also submitted two international and one National conference articles. During his employment at Ranchi he had received an Award for "Excellence in Ph. D thesis work" from IIT Bombay on 9th August 2014 at its 52nd convocation. It is further alleged that the accused is also posted in IIM Ranchi as a professor and the complainant and accused are the member of Faculty Recruitment Committee namely Internal Personal Committee(IPC) constituted by the management of IIM Ranchi and as per internal rules of the management it is mandatory for all the members that if in case any of the relatives of the member of the internal personal committee has applied for faculty position the same has to be declared to the committee by that member as it constitutes "Conflict of Interest", It is further alleged that immediately after knowing the fact that the husband of the accused had applied for the post of faculty, the complainant had sent a email to Prof. B.B. Chakraborti, the Director In Charge, IIM Ranchi on 26.5.14 with a copy to all faculties, raising the issue that whether a faculty member is eligible to be part of the Internal Personnel Committee if in case the Internal Personnel Committee member has a relative applying for a faculty position as its constitutes "Conflict of Interest" and the accused even being the member of the IPC never disclosed the fact to the IPC that her husband has applied for the post of faculty at IIM. On 3.6.14 the 3 complainant again sent an email to the IPC and being an IPC member he had put forward his views in IPC meeting that a candidate not having consistent good academic record should not be selected in all the academic areas and the views of complainant was accepted by all IPC committee members. In reaction of this episode enumerated above, the accused shouted at the complainant in the Director's Chamber in front of the faculties using slang and abusive languages. In another occasion is, on 16.7.14 of which the Vice President (Administration) is also aware of, as the security personnel in the 5th floor went and informed him that there was lot of shouting and yelling going on in the Director's Chamber and someone was creating nuisance within the premises of the IUM, Ranchi. It is further alleged that on 23.7.14 the complainant lodged a complaint to the Coordinator of the Faculty Convener and all faculties which included the Director of the IIM through an e-mail stating that the husband of accused, from sitting inside the cabin of the accused used abusing language against him in front of the faculties without any provocation from his end and after lodging the
Facts
complaint by complainant the accused directly lodged an FIR being Kotwali PS Case No. 679/14 on 24.7.14 u/s 354A,500 of IPC for sexual harassment. There is an internal rule in the IIM, Ranchi that in the event of any incident which happens or takes place then the same has to be first informed to the management of the IIM but in this case, the accused without informing the matter to the management went directly to the police station and lodged an FIR. After knowing the matter, the management of IIM Ranchi immediately without any delay constituted the committee against sexual harassment and the committee served notices to both the 4 parties on 1.8.2014 to present before the said committee to explain the matter on 5.8.14 but again the accused did not chose to turn up before the committee and upon repeated request by the committee, finally on 6.8.14 the accused appeared before the committee for recording her statement and after that yet again she failed to turn up for recording her evidence upon repeated requests by the committee and the accused did not submitted or recorded any oral or documentary evidences to the committee in support of her allegations of sexual harassment made by her. It is further alleged that the accused did not even kept silent and instead of assisting the committee, chose to highlight the matter by involving the media, both print and electronic into it and thereby escalated the matter altogether to a greater level. Although the matter of alleged sexual harassment was still under inquiry at that stage, the accused floated the false news all over media, such as in Google search pages and various e-news papers like Times of India, Hindustan Times, The Telegraph, Daily Pioneer etc. It is needless to say that the wide spread circulation of the false news reports that the complainant was responsible for the sexual harassment of a colleague at workplace has brought endless pain and anguish for the complainant and the complainant was greatly harmed as his reputation has been badly damaged before the society at large. It is further alleged that the committee of IIM management after holding due enquiry and recording evidence of sexual harassment came to conclusion that the complaint made before the committee is incorrect and complainant namely Sasadhar Bera is not guilty of alleged sexual harassment against him by the accused and submitted the report to Director of IIM, Ranchi on 5.9.14. It is 5 further alleged that the Investigation Officer of Kotwali PS Case No. 679/14 after due investigation submitted final form in the said case as the allegation of sexual harassment is false and the allegation made by the accused against complainant is incorrect and the final form was accepted by the then CJM, Ranchi on 29.11.14. It is further alleged that from 23.7.2014 up to till today the complainant has been subjected to mental and physical harassment by the accused and the accused is constantly threatening the complainant directly as well as indirectly of further instituting false allegation against him. Accordingly, this complaint is filed by complainant against the accused Bijaya Mishra. 6.
Legal Reasoning
against the petitioner prima facie it is clear that at the behest of the petitioner the said news was published in the newspaper that can be only proved in the trial court and the burden of proof that it was made by the petitioner or not, can only be subject matter of the trial. 15. In view of above, it cannot be said that the case of the petitioner is not coming within the purview of fourth exception of section 499 of I.P.C. 16. Similarly, in the report in the committee it has been observed that objection was made by the petitioner and said 12 objection was taken care of and thereafter the enquiry proceeded. 17. In that view of the matter, the submission of Mr. Indrajit Sinha, learned counsel for the petitioner is not accepted by this Court. So far judgment relied by Mr. Indrajit Sinha in the case of B.R.K. Aathithan( supra) is concerned, that is on different footing. In that case only the F.I.R. was registered and the appellant of that case was arrested in view of that the said order has been passed. The fact of the present case is otherwise as has been discussed hereinabove and in that view of the matter the said judgment is not helping the petitioner. 18. So far the judgment in the case of Vijay and Another (supra) relied by Mr. Sinha is concerned, that is on different footing. In that case the matter was with regard to the certain publication and it was published by the newspaper and in that case allegation was not there that at the behest of the accused the said news was published and in view of that facts the said case was allowed by the Bombay High Court. In that the 19. In the case in hand, serious allegations have been made against the O.P. No.2 of sexual harassment which was subject matter in the sexual harassment committee and in that background the said judgment relied by the learned counsel for the petitioner is not helping the petitioner. 20. The learned court has already taken cognizance by order dated 17.12.2015 and the Court finds that the learned court has applied judicial mind and has disclosed the prima facie materials in taking cognizance. Thus, order taking cognizance is also in accordance with law as there is application of judicial mind. 21. In view of above facts, reasons and analysis, the Court 13 comes to the conclusion that all the contentions raised by the petitioner required to be proved in the trial and this Court is not required to roam into and come to the conclusion at this stage whether fourth exception of section 499 of I.P.C. has been proved or not. There are parameters of interfering in the quashing proceeding under section 482 of Cr.P.C.. No case of interference is made out and accordingly, this petition is dismissed. Pending I.A, if
Arguments
Mr. Indrajit Sinha, learned counsel for the petitioner submits that the petitioner comes with hand impeccable academic background with a master degree in Personal Management and Labour Welfare and Bachelor of Law and Doctor in Philosophy from the Indian Institution of Technology, Delhi. He submits that the petitioner is having other qualifications. He further submits that the petitioner joined IIM, Ranchi and she has been teaching, publishing National and International Journals and conferences. She received award as a best professor in Human Resource Management. He submits that the petitioner was also holding administrative posts like chair of fallow program where the petitioner was member of the said committee. He further submits that the incident which forced the drafting of Institute promotion policy. Two Professors, (the petitioner and the Dean Academics) were against the proposals given by the other faculty colleagues as the draft was against the Ministry of Human Resource Development guidelines. He further submits that the petitioner sent an email to the Dean Academics 6 regarding her reservation to the Dean. He submits that the Dean took the matter to the subsequent Board Meeting where the Board approved the proposal given by the petitioner and the Dean Academics rejecting the proposal given by the other faculty members contained in (Annexure-1). He further submits that professor Bera and other members of the committee wanted an easy route to promotion by adopting a Closed Policy against the Ministry of Human Resource Development. He submits that the the professor Shibashis Chakroborty who was also a member of the said committee and a very good friend of Prof. Bera was sitting with Prof. Tanusree Dutta in her cabin and the petitioner’s cabin was close to Prof. Tanusree’s cabin and in front of Prof. Bera’s cabin. He further submits that one of the Academy Council Meetings held on 17th July, 2014 where many faculty members were present along with the then Director In-charge in his office, Prof. Bera again accused the petitioner in the meeting by making dirty remarks on her family background. He further submits that sexual harassment case has been lodged by the petitioner against the O.P. No.2 which was published in newspaper and also in social media and in view of definition of Section 499 of I.P.C. the defamation is not made out as there is no imputation by the petitioner against the O.P. No.2. He draws the attention of the Court to fourth exception of Section 499 of I.P.C. and submits that normally publishing substantially true report of the proceedings of a Court of Justice will not amount defamation. He submits that this aspect of the matter was considered by the Bombay High Court in the case of “Vijay and Another Vs. Ravindra Ghisulal Gupta” 2022 SCC Online Bom 1315. He refers to para 23 of the said judgment which is quoted hereinbelow:- 7 23. From the perusal of the definition of the term "Defamation" as contained under Section 499 IPC, it can be seen that, in order to attract the said offence, there must be a positive act on the part of the accused by words either spoken or Intended to be read, or by signs or by visible representations, which contain any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person. It is evident that the offence is person-centric and only if the particular accused has made any act with the specific intention or knowledge of its consequences, he can be prosecuted for the said offence. In such circumstances, it is absolutely necessary that the complaint should contain specific averments, pointing out the specific role played by each of the accused persons in expressing, making or publishing the objectionable imputations with the intention or knowledge of the consequences of such imputations. 7. Relying on the said judgment, he submits that in view of above ratio the case of the petitioner is covered and entire case can be quashed. He further submits that even the factum of registration of the F.I.R. and arrest is there, the defamation cannot be made as has been held by the Hon’ble Supreme Court in the case of “B.R.K. Aathithan Vs. Sun Group and Another”2022 SCC Online SC 1705. He submits that objection was raised by the petitioner with regard to the sexual harassment committee as it was against the guidelines and again the reminder letter was given by the petitioner. On these grounds, he submits that the entire criminal proceeding may be quashed. 8. Per contra, Mr. Sanjoy Piprawal, learned counsel for the O.P. No.2 submits that there are allegations that petitioner falsely implicated the O.P. No.2 in a sexual harassment case and she lodged the F.I.R and the said F.I.R. was investigated by the police and final form was submitted and it was stated therein that case is false in nature. He submits that inspite of notice the petitioner has not appeared and has not filed any protest petition which was accepted by the court. He submits that the said F.I.R. was lodged without informing the Management of the IIM and it was done in violation of guidelines so far as sexual harassment is concerned. He 8 further submits that Management of IIM, Ranchi immediately constituted a committee against sexual harassment when it has come to the knowledge of the Management and in the said committee the petitioner participated and her all objections were taken care of by the committee and thereafter the committee has exonerated the O.P. No.2. He submits that the said publication was not suo motu by the publisher of the newspaper or magazine and it was on the behest of the petitioner. He submits that if such facts are there the exception can be proved in the trial. He submits that the case of O.P. No.2 is covered in view of judgment of the Hon’ble Supreme Court in the case of “M.A. Rumugam Vs. Kittu @ Krishnamoorthy” (2009) 1 SCC 101. He refers to para 17, 18, 20 and 22 which are quoted hereinbelow:- “17. On the aforementioned backdrop, he alleged to have been defamed as thereby, "false propaganda among the village people and implication of his name in the complaint against the enemies Kakliappan and Namasivayam besides publishing the same in the dailies and weeklies" was made against f him. It was furthermore stated: "Since there was no basic evidence in the complaint, it was given with the sole intention of defaming the petitioner herein and the complainant did not cooperate for the investigation, the case registered in Thalaignayiru Police Station in Crime No. 360 of 2003 could not be proceeded further and the charge-sheet could not be filed. Therefore, the case on the file of the Judicial Magistrate, Tiruthuraipoondi was closed on 7-4-2005. Because of the illegal activities of the respondent, the petitioner complainant herein is unable to make his foreign trips and suffered heavy financial loss and lost his status among his relatives and the people of the village and suffered enormous mental agony." 18. Allegations made in the said complaint petition, thus, in our opinion, make out a case for proceeding against the appellant under Section 500 of the Penal Code as thereby imputation concerning had been made intending to harm or knowing or having reason to believe that such imputation would harm his reputation. 20. It is now a well-settled principle of law that those who plead exception must prove it. The burden of proof that his action was bona fide would, thus, be on the appellant alone. 22. The respondent was furthermore discharged by the learned Magistrate in exercise of its jurisdiction under Section 167(5) of the Code of Criminal Procedure stating that the police authorities could not complete the investigation within a period of six months”. 9. Relying on the above judgement, he submits that the case of the O.P. No.2 is covered in view of said judgment and in view of that the fact of the present case, no case of quashing is 9 made out. He further submits that identical was the situation in the case of “Pramod Singh Vs. The State of Jharkhand and Anr” 2015 (34) East Cr C 168 (Jhr) and submits that this Court has not interfered in the said case. He refers to para 8 and 9 of the said judgment which is quoted hereinbelow:- “ 8. Having heard learned counsels for both the sides and upon going through the record, I find force in the submissions of the learned counsel for the respondent No. 2. It is apparent from the complaint petition as also the complaint lodged by the petitioner before the Vigilance Commissioner, that the notification putting the petitioner under the departmental proceeding was issued under the signature the respondent No. 2 on 26.12.2009 and thereafter, the said complaint was made by the petitioner on 29.12.2009, as which there are serious allegations against the respondent No. 2. It is also the fact that after lodging of this complaint, Respondent No. 2 was promoted to the IAS cadre and this promotion must have been granted to him after the vigilance clearance, Two vigilance reports, one of the year 2013 and another of the year 2014, have been brought on record, which show that no vigilance matter is pending against the petitioner. The complaint made by the petitioner against the respondent No. 2 also shows that it relates to the period of about three months prior to the date of filing the complaint, which was filed soon after the issuance of the notification under the signature of the respondent No. 2. putting the petitioner under the departmental proceeding. In the backdrop of these facts, whether the complaint- made before the Vigilance Commissioner by the petitioner, is malicious one or was made in good faith, is itself a question, which has to be proved in the Court below, and the burden of proof that it was made in good faith, is on the petitioner. 1 am of the considered view that at this stage it cannot be held that the case of the petitioner comes within the purview of Eighth Exception of Section 499 of the IPC. 9. In view of the foregoing discussions, I find that no case is made out by the petitioner for any interference at this stage in the Impugned order dated 13.8.2010 passed sed by the learned Chief Judicial Magistrate, Ranchi, in Complaint Case No. 135 of 2010, finding prima facie offence under Sections 500 and 501 of the IPC against the petitioner and the other co-accused, or for quashing the entire criminal proceeding against the petitioner in the said case.” 10. Relying on the said judgment he submits that identical is the situation in the case in hand and if such a situation is there the case cannot be quashed. 11. By way of reply, Mr. Indrajit Sinha, learned counsel for the petitioner submits that the petitioner has moved before this Court in Criminal Revision for not issuing notice to the petitioner and this Revisional court allowed the contention and the matter with regard to protest is pending before the learned court. 10 12. In view of above submissions of the learned counsel for the parties, the Court has gone through the materials on record and finds that in the complaint petition there are allegations particularly in para 19 that the petitioner was not assisting the Sexual Harassment Committee and she chose to highlight the matter by involving the media, both print and electronic and thereby escalated the matter altogether to a greater level. The allegations are also there that the matter of alleged sexual harassment was still under inquiry at that stage, the accused floated the false news all over media, such as in Google search pages and various e-news papers like Times of India, Hindustan Times, The Telegraph, Daily Pioneer, etc. In para 20 of the complaint it has been stated that due to wide spread circulation of the false news reports that the complainant was responsible for the sexual harassment of a colleague at workplace has brought endless pain and anguish for the complainant. The complainant was greatly harmed as his reputation has been badly damaged before the society at large. 13. Thus, in view of such allegation it will not be a case that the news papers published the said news on their own wish. The allegations are there that at the behest of the petitioner the said news was published. Moreover, in the counter-affidavit filed by the O.P. No.2 in the said sexual harassment committee has exonerated the O.P. No.2 which suggests that the sexual harassment case was falsely filed by the petitioner against the O.P. No.2. There are mechanism of the sexual harassment in the workplace in view of judgment of the Hon’ble Supreme Court in the case of “Vishaka & Ors. Vs. State of Rajasthan & Ors.” (1997) 6 SCC 241. After the judgment all the major institutions 11 have taken steps for conducting enquiry for such type of complaint of sexual harassment. The petitioner has not cooperated in the said committee and after meeting with all the objections the committee submitted report and inspite of that at the behest of the petitioner such a news was published against the person who is working in a reputed institution. In these background, prima facie it appears that certain harm is already there to the O.P. No.2. 14. So far fourth exception is concerned, that is defence of the petitioner. Whether the said publication was suo motu by the newspaper reporters or at the behest of the petitioner that can be proved in trial and it is further well settled that exception is required to be proved by the accused in trial. Further whether a totally false FIR was filed or not that cannot be subject matter of section 482 Cr.P.C. as this is disputed question of facts which can be only proved in the trial. This aspect of the matter has been considered by the Hon’ble Supreme Court in the case of M.A. Rumugam(supra) relied by the learned counsel for the O.P. No.2. What has been narrated hereinabove with regard to allegation
Decision
any, stands disposed of. Interim order is vacated. (Sanjay Kumar Dwivedi, J.) Satyarthi/-A.F.R.