Criminal Misc. No. M-54144 of 2007 v. Smt. Hemlata Goyal

Smt. Hemlata Goyal wife of Sh. Satish Kumar Goyal, r/o 1045/2, Sanjay Colony, New Atal Chowk, NIT, Faridabad. ...Respondents

2. Criminal Misc. No. M-54144 of 2007 Criminal Misc. No. M-980 of 2008 2 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. M.K. Sood, Advocate, for the petitioners, in both the petitions. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for respondent No. 1 – State. Mr. Sarfraj Hussain, Advocate, for respondent No. 2. SHAM SUNDER, J. This order shall dispose of Criminal Misc. No. M-54144 of 2007, filed by H.S. Negi, and, Criminal Misc. No. M-980 of 2008, filed by Anoop Srivastava, Raman Sahdev, Rajguru Singh and Anandprakash Mani Tripathi, petitioners, under Section 482 Cr.P.C., for quashing the complaint dated 09.02.05 (Annexure P6), the summoning order dated 06.01.07 (Annexure P7), rendered by the Court of Judicial Magistrate 1st Class, Faridabad, vide which, the petitioners, were summoned, for the offences, punishable under Sections 148, 323, 144 and 342 read with Section 149 IPC, and, the order dated 04.07.07 (Annexure P8), rendered by the Court of Additional Sessions Judge, Faridabad, vide which, it revised the order of the trial Court, and further summoned the petitioners, for the additional offences, punishable under Sections 352 and 354 read with Section 149 IPC.

2. The facts, in brief, are that, Hemlata Goyal, complainant, was an employee of M/s Indo British Garments Pvt. Ltd. On

23.11.04, when she alongwith other lady workers, was going to Criminal Misc. No. M-54144 of 2007 Criminal Misc. No. M-980 of 2008 3 resume her work, in the aforesaid company, Raman Sahdev, petitioner No. 2, in the first instance, compelled them to stand straight, on the floor upto 10.00 AM, without any rhyme or reason. Thereafter, he, at the instance of Anoop Srivastava, Managing Director, and, in connivance with Rajguru, Personnel Manager and H.S. Negi, General Manager, forcibly took the complainant and other lady workers, to his cabin, and confined them forcibly and illegally. When the complainant and the other lady workers, requested petitioner No. 2, to open the door of the cabin, they were compelled to act, as per his instructions. In the meantime, Rajguru, Personnel Manager, H.S. Negi, General Manager, and Mr. Tiwari, Securityman, gathered there collectively, with malafide intention, and took the complainant and other lady workers, to the main gate of the factory, where, they started abusing and beating them with kicks, slaps and fists. Anoop Srivastava, Managing Director, also reached there, and started man-handling the complainant and the other lady workers. All the aforesaid persons also tried to outrage their modesty. On hearing noise of the complainant and the other lady workers, the other workers, working in the company, immediately informed the Incharge, Police Post, DLF Area, Sector 31, Faridabad, as a result whereof, they were rescued from their clutches, and sent to their respective machines to work. After sometime, Lata Katyal, Supervisor, took the complainant, to the cabin of Anoop Srivastava, Managing Director, who threatened her Criminal Misc. No. M-54144 of 2007 Criminal Misc. No. M-980 of 2008 4 with dire consequences. He took her signatures, on the resignation under duress, snatched her identity card and pushed her outside the gate of the factory. Thereafter, the complainant got herself medico- legally examined and made various complaints, to the police authorities, regarding the aforesaid incident, but in vain. Ultimately, the aforesaid complaint, was moved by the complainant.

3. After recording the preliminary evidence, in the complaint, vide order dated 06.01.07 (Annexure P7), the petitioners were summoned, to face trial, for the offences, punishable under Sections 148, 323, 144 and 342 read with Section 149 IPC, by the trial Court.

4. Feeling aggrieved, a revision-petition, was filed, by the complainant, which was allowed, by the Court of Additional Sessions Judge, Faridabad, vide order dated 04.07.07, revising the order of the trial Court, and directing that the petitioners, be also summoned, for the additional offences, punishable under Sections 352 and 354 read with Section 149 IPC. Ultimately, the instant petition was filed.

5. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

6. The Counsel for the petitioners, submitted that a false complaint, was filed, by respondent No. 2, against the petitioners. He further submitted that the trial Court, without application of mind, to the facts and circumstances of the case, as also the evidence, on record, illegally summoned the petitioners, as accused, for various Criminal Misc. No. M-54144 of 2007 Criminal Misc. No. M-980 of 2008 5 offences. He further submitted that the Court of Additional Sessions Judge, Faridabad, vide order dated 04.07.07, passed in the revision- petition, without affording an opportunity of hearing, to the petitioners, revised the order of the trial Court, and directed that the petitioners, be also summoned, for the additional offences, punishable under Sections 342, 352 and 354 read with Section 149 IPC. He further submitted that the order dated 04.07.07, revising the order of the trial Court, could not be passed, by the Revisional Court, without issuance of notice, to the petitioners, and without affording an opportunity of being heard to them. He further submitted that the order dated 04.07.07, passed by the Court of Additional Sessions Judge, Faridabad, being illegal, is liable to be set aside. He further submitted that the complaint, as also the summoning orders, being illegal, are also liable to be set aside.

7. On the other hand, the Counsel for the respondents, submitted that the trial Court, after applying mind, to the allegations, contained in the complaint, and the preliminary evidence, was right, in coming to the conclusion, that the petitioners, committed the offences. They further submitted that, even the Revisional Court, was right, in revising the order of the trial Court, to the extent of directing the summoning of the petitioners for additional offences. They further submitted that the Revisional Court, was not required, to give any opportunity of being heard, to the petitioners, before passing the order, in the revision-petition. They further submitted Criminal Misc. No. M-54144 of 2007 Criminal Misc. No. M-980 of 2008 6 that, if any defence is available, to the petitioners, they can take up the same, only during the trial of the case, and the same, could not be taken into consideration, at the time of deciding the petition, under Section 482 Cr.P.C.

8. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the order dated 04.07.07, rendered by the Court of Additional Sessions Judge, Faridabad, is liable to be set aside, for the reasons, to be recorded, hereinafter. After recording the preliminary evidence, the trial Court, came to the conclusion, that there were sufficient grounds to summon the petitioners for the offence punishable under Sections 148, 323, 144 and 342 read with Section 149 IPC. The trial Court, also came to the conclusion, that there were no sufficient grounds, to summon the petitioners for the offences under Sections 352 and 354 read with Section 149 IPC. It was against the order dated 06.01.07, that the complainant filed revision- petition. It is evident, from the order dated 04.07.07, that no notice, was given, by the Revisional Court, to the petitioners, though, the complaint against them, for the offences, punishable under Sections 352 and 354 read with Section 149 IPC, had been dismissed. At their back, the Revisional Court, came to the conclusion, that the offences, punishable under Sections 352 and 354 read with Section 149 IPC, were also made out, and it ordered the trial Court, to summon the petitioners, for these offences also. In my considered opinion, the Criminal Misc. No. M-54144 of 2007 Criminal Misc. No. M-980 of 2008 7 Revisional Court, was wrong, in passing the order, at the back of the petitioners. In Gurbachan Singh Vs. Ram Parkash, 1996(2), CLR, 247, a revision-petition, was filed against the order, passed by the Trial Magistrate, dismissing the complaint and discharging the accused/respondent. Before passing an order for making further inquiry into the complaint, in terms of Section 398 Cr.P.C., by the Revisional Court, notice to the accused, was not given. The order, was passed, by the Revisional Court, without hearing the accused. It was held that the order was illegal, and, as such, the same was set aside. In Mohd. Afzal & others Vs. Noor Nisha Begum & another, 1997(2), CLR, 661, it was held, that power under Section 401(1) Cr.P.C., may be exercised by the Sessions Judge, while dealing with a revision, before it. It was further held that under Section 401 (2), no order to the prejudice of accused, could be passed, unless he had been given an opportunity of being heard. In that case also, the complaint, had been dismissed, under Section 203, by the Magistrate. Revision against the said order, was allowed, by the Sessions Judge, without notice, to the accused. It was, under these circumstances, held that, the order passed, by the Sessions Judge, was illegal and, as such, it was set aside. No judgement, laying down the principle of law to the contrary, was cited, by the Counsel for the respondents. The principle of law, laid down, in Gurbachan Singh's and Mohd. Afzal & others' cases (supra), is fully applicable, to the facts of the instant case. The order passed, by the Revisional Court, therefore, Criminal Misc. No. M-54144 of 2007 Criminal Misc. No. M-980 of 2008 8 being illegal, is liable to be set aside.

9. For the reasons, recorded above, the petition is accepted, in the manner, that the order dated 04.07.07 (Annexure P8), rendered by the Court of Additional Sessions Judge, Faridabad, being illegal, is set aside. The matter, is remanded back to the Revisional Court, with a direction, to the parties, to appear before it, on 17.03.2010, at

10.00 AM sharp. The Revisional Court, shall pass a fresh order, after affording an opportunity, to the parties of being heard. Since the fresh decision by the Revisional Court, may have material bearing on the merits of the case, liberty deserves to be granted to the petitioners to file a fresh petition.

10. It is, however, made clear, that after a fresh order is passed by the revisional court, by adopting the procedure indicated above, the petitioners shall be at liberty, if so advised, to file a fresh petition under Section 482 Cr.P.C., for quashing the complaint, and the orders, against which they may still feel aggrieved.

11. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned.

18.02.2010 Amodh (SHAM SUNDER) JUDGE