Satyajit Deb v. The State of West Bengal

Being aggrieved by the impugned proceeding, Mr. Kumar Jyoti Tewari, learned Counsel appearing on behalf of the petitioner argued that no plausible explanation for the delay in lodging such complaint has been mentioned in the written complaint by the de facto complainant. Such delay afforded opportunity to the complainant to make deliberation with the alleged victim and to make embellishment or even to make fabrications therein. Therefore, an unnatural delay of five months cast a cloud of suspicion on the authenticity of the allegations made in the FIR by the de facto complainant. He further submits that the daughter of the defacto complainant and the daughter of the petitioner are the students of same Class and in the same School. In the first week of July, 2022, the daughter of the defacto complainant wrote one love letter to a boy belonging to the same school and being caught red handed she was rebuked by the teacher. Pursuant to which the Head Teacher of the concerned school called the defacto complainant and her daughter to meet personally in the office of the Head Teacher where defacto complainant was questioned about the conduct of her daughter at her tender age. Subsequently, the news spread in the school. Some guardians of the school requested the Head Teacher to look into the matter seriously. The defacto complainant was in belief that the wife of the petitioner was one of the guardians who met the Head Teacher of the School. The defacto complainant picked up a quarrel with the petitioner 3 and his wife over this trivial issue by making allegation that they along with their daughter were spreading such news and maligning the daughter of the defacto complainant. The defacto complainant intimidated the petitioner with dire consequences of entanglement with POSCO Act, 2012 on several occasions before registering the complaint and the same was witnessed by other neighbours of the petitioner and ultimately one day it was done and therefore the criminal proceeding against the petitioner is maliciously instituted with an ulterior motive for wreaking vengeance on the petitioner and with a view to spite him due to private and personal grudge. He further submits that there is no allegation of sexual intention on the part of the petitioner and as such section 8 of the POSCO does not attract in the present case. According to learned Counsel for the petitioner all the allegations are omnibus in nature and the petitioner has been entangled with a criminal case to take revenge over the incident that has been stated above. He further submits that the victim refused to undergo medical examination and such denial gives rise a serious doubt in the mind of a prudent man regarding the veracity of the allegations made in the FIR. In fact the defacto complainant has shamelessly misused the very law, which has been enacted to protect the interest of the children from sexual harassment, as a weapon to materialize her revenge as a guardian. In this context Mr. Tewari relying upon the judgment of Apex 4 Court in Attorney General for India Vs. Satish and Anr. reported in (2022) 5 SCC 545 contended that the word “touch” has been used specifically with regard to the sexual parts of the body, whereas, the word “physical contact” has been used for any other act and therefore the act of touching sexual part of the body or any other act involving physical contact, if done with “sexual intent” would only amount to “sexual assault” within the meaning of Section 7 of the Act, which is not the case in the present context. He further contended that judicial process should not be an instrument of oppression and Court should be judicious in exercising discretion. In this context he placed reliance upon Ahmad Ali Quraish & Anr. Vs. State of U.P. reported in (2020) 13 SCC 435. As such the impugned criminal proceeding and the charge sheet should be quashed. Mr. Satadru Lahiri, learned Counsel appearing on behalf of the opposite party No. 2 raised strong objection contending that though the learned Counsel for the petitioner heavily argued that there was no sexual intent on the part of the petitioner in connection with the alleged occurrence but explanation to Section 11 of the Act of 2012 which deals with the definition of sexual harassment clearly stipulates that “sexual intent”, shall always be a question of fact. He further submits that the age of the victim is below 12 years and as such it attracts Section 9(m) of the Act which deals with aggravated sexual assault and as such there is every likelihood that the charge will be framed against the petitioner 5 by the Trial Court under Section 10 of the POSCO Act. He further submits that the allegation levelled in the FIR clearly constitutes offence and relying upon decision of Bhajanlal’s case reported in (1992) Supp 1 SCC 335 he contended that the allegations made in the FIR even if taken on its face value and accepted in their entirety it prima facie constitutes offence against the accused and as such it is not a fit case for quashing the proceeding at the initial stage and as such he prays for dismissal of the present application. Mr. Saryati Datta, learned Counsel appearing on behalf of the State placed the Case Diary and pointed out the statement of the witnesses recorded under Section 161 of the Cr.P.C. and also the statement of the victim recorded under Section 164 of the Cr.P.C. and contended that the statements made by the witnesses specifically corroborates with the statement made in the FIR and as such the prosecution should be allowed to go for trial and this is not a fit case for quashing the proceeding at its threshold. I have considered the submissions made on behalf of the parties. On perusal of the complaint it appears that the main allegation is that the petitioner herein hugged the victim and kissed her. The definition of sexual assault as given in Section 7 of the Act of 2012 includes “any other Act with sexual intent which involves physical contact without penetration”. The complaint clearly stipulates that there was a physical contact but whether any sexual intent on the part of the 6 petitioner was present or not, that is always a question of fact and as such parties are required to go for trial. Moreover, Section 29 of the Act clearly stipulates, where a person is prosecuted for committing or abating or attempting to commit any offence under Section 3, 5, 7 or section 9 of the Act, the Special Court shall presume that such person has committed the offence. Learned Counsel for the petitioner referring the above- mentioned incident that allegedly took place at school, tried to ventilate that in order to wreak vengeance and to take revenge the present proceeding has been maliciously instituted against the present petitioner. Even assuming that the defacto complainant has lodged the FIR only on account of her personal animosity, that, by itself will not be a ground to quash the impugned proceeding where investigation over a serious allegation has culminated into a charge sheet against the petitioner. In Sheonandan Paswan Vs. State of Bihar, reported in (1987) 1 SCC 238 it was held :- “it is well-settled proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not became vitiated on account of mala fides or political vendetta of the First informant or the complainant.” Considering all these aspects I find nothing to invoke this Court’s jurisdiction to quash the impugned proceeding exercising it’s power under Section 482 of the Cr.P.C. The application, being C.R.R. 2369 of 2023 stands dismissed. 7 Urgent Photostat certified copy of this order, if applied for, be given to the parties, upon compliance of all requisite formalities. (Dr. Ajoy Kumar Mukherjee, J. )