1. This petition under Section 482 of the Code of Criminal Procedure 1973 (in short ‘Cr.P.C’) is for the quashing of complaint bearing CC No.
112/1/13 under Sections 308/325/327/329/330/331/341/342/34 of the Indian Penal Code (in short ‘IPC’) and also for setting aside the order of
summoning dated 01.11.2013, passed by the Additional Chief Metropolitan Magistrate (in short ‘ACMM’), Saket District Courts, New Delhi.
2. Brief facts of the case are that respondent No.1 Anil Kumar Sharma/complainant was an employee of ‘Welcom Hotel Sheraton New Delhi’
since 2003 and at the time of incident he was posted as ‘Concierge Attendant’ front office. On 24.05.2012, he made a complaint to the SHO,
Police Station Saket, New Delhi, stating therein that he was being harassed for the last one year. He requested the petitioner, who was posted as the
(General Manager), for leave but no heed was paid to his request. As and when the request for leave was made, respondent No.1 was threatened
that he would be transferred. Respondent No.1 further stated that on 24.05.2012, at about 5:00 PM, after completion of his duty, he came downstairs
when he was called by the HR and was asked to sign a document to which he refused. He states that Anil Srivastava, Guru and HR staff told him not
to go out. He was beaten up by Rohit Sangwan and the Guards. Anil Srivastava and Guru further threatened to kill him. It is stated that he requested
the present petitioner (General Manager), who did not pay any heed, for appropriate action against those who were responsible for the aforesaid act.
3. It also appears that on 26.05.2012, charge sheet was issued to the complainant by the petitioner, wherein, disciplinary action was contemplated on
account of his misconduct and the complainant was also placed under suspension. On 31.05.2012, he gave the reply refuting the contents of the
chargesheet.
4. On 26.05.2012, he again gave a reminder of his earlier complaint dated 24.05.2012 to the Commissioner of Police and to the other Police Officers
requesting for action.
5. On 01.08.2012, the complainant filed a complaint under Section 200 of the Cr.P.C. against the petitioner and others. The present petitioner was
arrayed as accused No.1; and accused Nos. 2 to 4 are, namely, Anil Srivastava, Rohit Sangwan and Guru respectively. Along with the complaint, the
complainant also filed an application under Section 156(3) of the Cr.P.C. praying for a direction to register an FIR.
6. Learned Metropolitan Magistrate directed the concerned Police Station for filing of the status report and pursuant thereto, the status report was
filed by the Police finding therein that no cognizable offence was made out. On 03.12.2012, the learned Metropolitan Magistrate rejected the
application under Section 156(3) of the Cr.P.C. and directed the complainant to adduce evidence under Section 200 of the Cr.P.C. against the
petitioner and other accused persons. The complainant on 08.07.2013 got his statement recorded, thereafter, vide impugned order dated 01.11.2013,
the learned ACMM found that there was sufficient evidence for commission of the offence punishable under Sections 323/341/506/34 of the IPC and
accordingly, the petitioner and other accused persons were summoned. The petitioner is, therefore, in the, present petition on various grounds.
7. Shri Ravindra Srivastva, Senior Advocate, appearing on behalf of the petitioner assisted by Shri L.K. Bhushan & Shri Mohit Sharma, Advocates,
submits that the instant is a clear case of abuse of the process of law and no offence, whatsoever, is made out against the petitioner. According to
him, in complaint dated 24.05.2012, there were no allegations against the petitioner. Even in the reminder which was made to the Commissioner of
Police on 26.05.2012 and to other Police Officers, no allegations were made so as to constitute the offence in question. The allegations made by the
private complainant on the face of it do not constitute any cognizable offence. The police conducted an inquiry in pursuance to the directions issued by
the Magistrate and in its report dated 18.08.2012, it was found that no cognizable offence is made out. The police recorded statement of various
witnesses and collected the CCTV footage and found that the allegations of the complainant are not substantiated. It was found that the complainant
was having a dispute with the management over his transfer and on account of malafide intent and vengeance, he made the allegations to pressurize
the management. It was also found that the complainant was not detained at any point of time. Learned Senior Counsel has taken this court through
the statement of the complainant at pre-summoning stage and has read over the entire material including the record of the police to indicate that no
offence is made out.
8. Learned Senior Counsel further submits that the order passed by the learned ACMM does not disclose any application of mind. There is no
consideration of the relevant material and in a mechanical manner, order of summoning has been passed against senior officer of the management.
Learned Senior Counsel has placed reliance on decisions of the Hon’ble Supreme Court in the matter of Pepsi Foods ltd. and Another v. Special
Judicial Magistrate and Others (1998) 5 SCC 749, State of Haryana and Others v. Bhajan Lal and Others (1992) Supp (1) SCC 335, Lalan Kumar
Singh and Others v. State of Maharashtra (2022) SCC OnLine 1383 and the decision of this court in the matter of DK Modi v. Modi Rubber Limited
Crl. MC No.4153/2012 dated 18.08.2022 and Saket Singh v. Girdhari Lal (2018) 2 SCC OnLine Del 12138 dated 30.10.2018. He also placed reliance
on a decision of the Hon’ble High Court of Madhya Pradesh in the matter of Narendra Mishra v. The State of Madhya Pradesh and Ors.
MANU/MP/0362/2022 dated 23.02.2022.
9. Shri K.L. Janjani, Advocate, who appears on behalf of respondent No.1 vehemently opposed the petition on various grounds and states that the
complainant has been victimized at various stages. According to him, the learned ACMM after recording the pre-summoning evidence has directed
for issuance of summons. The impugned order is passed after due application of mind and after consideration of the relevant material. No detailed
reasoning or scrutiny is required. The court is required to consider as to whether prima facie the allegations are made out. Para 2 and 6 of the
complaint clearly proves the complicity of the petition. Section 34 of the IPC would be attracted and hence, the petitioner cannot be absolved from the
charges at this stage. The petitioner can adduce his evidence during the course of trial. At the stage of issuance of summons, the scope of
interference in exercise of power under Section 482 of the Cr.P.C. is very limited. It is submitted that the petitioner was the main conspirator along
with the other accused persons to assault the complainant brutally at the time of duty on 24.05.2012. The petitioner being the General Manager of the
hotel had tortured the complainant mentally and physically by not granting him leave on the ground of illness. Despite the complainant undergoing
regular treatment for his illness, he was called on duty and was beaten up drastically which resulted in injuries. According to him, everything has
happened intentionally because the complainant was a witness to the racket which was being run by the petitioner and her husband for the illegal
supply of drugs to consumers.
10. Learned counsel for respondent No. 1 has placed reliance on the decision of the Hon’ble Supreme Court in the cases of Shivjee Singh v.
Nagendra Tiwary & Ors. (2010) 7 SCC 578 & Padal Venkata Rama Reddy alias Ramu v. Kovvuri Satyanarayana Reddy & Ors. (2011) 12 SCC
437. He also placed reliance on a decision of this Court in the case of Ex. Major R.S. Udhwar v. Union of India (UOI) & Ors (1995) SCC OnLine
Del 174. He, therefore, submits that the law with respect to vicarious liability under Section 34 of the IPC is very clear and the complainant in his
complaint unequivocally stated that all the accused persons had started the beating and the present petitioner was the commanding authority.
Therefore, if the entire matter is seen as a whole and with a broad perspective, the same would clearly demonstrate that the petitioner is the
mastermind in creating the circumstances that caused harassment and tortures to the respondent No. 1 in different manners.
11. I have heard the learned counsel appearing for the parties and carefully perused the record.
12. The legal position with respect to exercise of power under Section 482 of Cr.P.C. is well settled through various pronouncements of the Hon'ble
Supreme Court. When a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the controverted
allegation as made prima facie established the offence. It is also for the court to take into consideration any special features which appear in a
particular case to consider whether it is expedient and in the interest of justice to permit prosecution to continue. This is so on the basis that the court
cannot be utilized for any oblique purpose and where, in the opinion of the court, chances of an ultimate conviction is bleak and, therefore, no useful
purpose is likely to be served by allowing criminal prosecution to continue, the court may while taking into consideration the special facts of a case also
quash the proceedings even though it may be at a preliminary stage. (See: Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre (1988) 1
SCC 692). It is also correct to say that the High Court should not embark upon an inquiry whether the allegations in the compliant are likely to be
established by evidence or not. (State of Bihar v. Murad Ali Khan (1988) 4 SCC 655).
13. The Hon'ble Supreme Court in the matter of State of Haryana and Others (supra) after conducting detailed exercise of scope of power under
Article 226 or under Section 482 of the Cr.P.C. has categorised some of the 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. Paragraph No. 102 of the said decision is reproduced as
under:-
“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 non-cognizable 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 grudgeâ€.
14. The Hon'ble Supreme Court in the case of Pepsi Foods ltd. and Another (supra) had an occasion to consider the drastic impact of passing an order
of summoning without due application of mind. In paragraph No. 28, it has been held as under:-
“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is
not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion.
The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable
thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof
and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the
evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accusedâ€.
15. The legal position as has been enunciated in the decision of State of Haryana and Others (supra) & Pepsi Foods Ltd. and Another (supra) is being
consistently followed by all Courts depending upon the facts of individual case. Unmerited and undeserved prosecution has been held to be
infringement of the guarantee under Article 21 of the Constitution of India in the case of State of Bihar v. P.P. Sharma 1992 Supp (1) SCC 222.
16. In the instant case exception 1, 3, 5 & 7 of the case of State of Haryana and Others (supra) are sought to be attracted in favour of the petitioner.
In order to appreciate the submissions made by learned counsel appearing for the parties it would be appropriate to reproduce paragraph Nos. 2 & 6
of the instant complaint. The same are reproduced as under:-
“2. That the Complainant is an employee of ITC Sheraton Hotel since 1992, who initially remained posted at ITC Maurya Hotel, till 2003,
and thereafter since December 2003 with ITC Sheraton Hotel. District Centre Saket, New Delhi-110017 at the post of ""Concierge Attendant
(Front Office)"".
And whereas Accused No. 1 is the General Manager of ITC Sheraton Hotel, under whose charge, supervision and guidance, the said hotel
runs, and functions and is also the one under whose dictates the complainant was bullied, tortured, troubled, mercilessly beaten and his life
was practically made hell, whereas the Accused No. 2 is the Manager (HR) and Accused No. 3 is Chief Security Officer and Accused No. 4
is Assistant Manager (HR) of the Hotel"".
6. That from what it stands canvassed above, it is clear beyond doubt that the accused persons have deliberately and intentionally with common
objectives have committed offences U/s 308/325/ 327/ 329/330/331/341/ 342/ 34 IPC, instead the Complainant ironically is also to face a departmental
enquiry on totally incorrect and fictitious facts. All the accused persons have common intentions, particularly accused No. 1 who being the General
Manager and being responsible for maintenance of smooth law order and administration, the circumstances apparently shows that the things look to
have been planned and designed at her behest. The other accused persons are directly involved in commission of the offencesâ€.
17. The aforesaid allegations would show that the respondent in paragraph No. 2 has stated that at the dictate of the petitioner, the complainant was
bullied, tortured, troubled, mercilessly beaten and his life was practically made hell. Paragraph No. 6 however, show that all the accused persons had
common intentions and particularly the petitioner, who being the General Manager and being responsible for maintenance of smooth law, order and
administration, appears to have planned and designed the entire incident. The allegation of beating and giving him fist blows on his face and on various
other parts of the body are stated to be on 24.05.2012. In paragraph No. 4(x) & (xi), the complainant has made the following averments:-
“4(X) That it goes beyond saying on a perusal of the aforementioned two letters, i.e. Annexure C6 and C8 that the Manager (HR) was
only making field and backgrounds for creating fictitious environment, basing thereupon he could either teach lesson to the Complainant or
throw him out of employment. Surprisingly when he could not succeed in his illegal design and motive, then on 24.05.2012, the Manager
(HR) asked the Complainant to meet him after completing his duty in the evening. As instructed, the Complainant in the evening after
finishing his work was approaching the office of the Manager (HR) at about 5 PM, he was apprehended by Accused No. 4/Manager HR
(Assistant), who asked the complainant to follow him to the HR Office, and when the Complainant accompanied with Accused No. 4 entered
the office of Accused No. 2, the Accused No. 4 immediately closed the HR Cabin, where Accused No. 2 was already present.
4(XI) That further both, i.e. Accused No. 2 and 4 forcibly tried to pressurize the Complainant to resign or alternatively accept a letter of
transfer to Chennai, and when the Complainant refused and revolted doing so, he was strongly hit at his head with a paper-weight by
Accused No. 4 at the instructions of Accused No. 2, and also both of them started beating and giving him fist blows on his face and various
other parts of the body.
As a result, the Complainant started having nervousness and nausea feelings, who immediately rushed towards the bathroom in
uncontrollable conditions, somehow controlling and managing himself, and soon when he entered the bathroom, he stared vomiting, but
surprisingly, at the instructions of Accused No. 2 and 4, few persons started banging the toilet gate and using abusive words and languages
and also started threatening the Complainant to immediately come out of the toilet. The complainant feeling scared in these circumstances as
a precaution; he attempted calling Police by dialing 100, to be more precise at about 5.28 PM, and repeated the same at 5.36 PM from the
toilet itself, and during all these periods, people kept banging the toilet gate at the instructions of Accused No. 2 and 4â€.
18. It is thus seen that in the entire complaint except averments in paragraph Nos. 2 & 6, there are no other allegations made with respect to the
present petitioner by the complainant. The incident of beating up is dated 24.05.2012 and nothing specific has been attributed to the present petitioner.
Only general averment has been made that the present petitioner being General Manager was responsible for the entire incident. As to in what
manner the present petitioner is responsible or has actuated commission of offence is not discernible from the entire complaint. The instant complaint
appears to have been filed on 01.08.2012. On 26.05.2012, the chargesheet was already served on the respondent No. 1 for the grave misconduct in
the Hotel premises which has been signed by the present petitioner. The respondent/complainant filed his reply dated 31.05.2012 to the chargesheet
dated 26.05.2012 and has not stated anything with respect to any conspiracy or overt act on the part of the present petitioner. Similarly, there is no
allegation against the present petitioner in the complaint dated 24.05.2012 which was made by the respondent/complainant to the SHO. Even in the
reminder dated 26.05.2012 nothing specific is attributed so as to support the allegation against the present petitioner. More importantly, the Police in its
Status Report to application under Section 156(3) of Cr.P.C. has clearly stated that no cognizable offence was made out even against any of the
accused persons. It was stated therein that the statement of witnesses, analysis of CCTV footage and Doctor’s opinion on MLC did not
substantiate the allegation made in the complaint. It was found that the complainant was having some dispute with management over his transfer and
therefore, allegations were levelled to pressurize the management. It was specifically stated that the complainant was not held captive at any point of
time and he suffered head injuries as he himself had hit his head on the glass door.
19. The learned Metropolitan Magistrate vide order dated 03.12.2012 rejected the application filed by the respondent/complainant for a direction to
register an FIR holding therein that in the case at hand the evidence is within the reach of the complainant and no scientific investigation was required.
The learned MM, however, directed the complainant to produce his evidence to prove his case. On 08.07.2013, the complainant examined himself as
witness and on the basis of the deposition of the complainant, the learned Metropolitan Magistrate vide impugned order has taken the cognizance
against the present petitioner and other accused persons for various offences as stated in preceding paragraph.
20. In the impugned order dated 01.11.2013, the learned Metropolitan Magistrate records that the complainant was beaten up by all the accused
persons particularly by accused Rohit (accused No.3), Guru (accused No.4) and Anil Shrivastava (accused No.2), as a result of which he sustained
simple injuries on his forehead and other parts of the body. The learned Metropolitan Magistrate goes on to state that in his opinion there is sufficient
evidence has on record, which has been deposed by the complainant on oath that he was beaten up by the accused persons, and accused persons are
required to be summoned for offences punishable under Sections 323/341/506/34 of the IPC. It is, therefore, apparent that neither in the evidence of
the complainant himself, there are any specific allegations against the present petitioner nor the learned Metropolitan Magistrate has applied his mind
as to for what reasons the present petitioner should also be summoned. Apparently, a mechanical order has been passed by the learned Metropolitan
Magistrate.
21. The order of issuance of process is not an emply-formality. The formation of opinion to proceed against an accused must be based on some
material. No doubt that the order need not contain detailed reasons. A person ought not to be dragged into court merely because a complaint has been
filed. (See: Sunil Bharati Mittal v. CBI (2015) 4 SCC 609, Lalankumar Singh and Others (Supra).
22. No doubt Section 34 of the IPC lays down a principle of joint liability in the doing of a criminal act. However, the essence of that liability is to be
found in the existence of a common intention, emanating from the accused leading to the doing of a criminal act in furtherance of such intention. If an
act is done separately, similarly or adversely by several persons but the same is in furtherance of common intention, each person is liable for the result
of that as if he had done that act himself. The soul of Section 34 of the IPC is the joint liability in doing a criminal act. Before a person can be held
liable for the acts done by another, under the provisions of Section 34 of the IPC, it must be established that; (i) there was common intention in the
sense of a pre-arranged plan between the two, and (ii) the person sought to be so held liable, had participated in some manner in the act constituting
the offence. Unless common intention in participation or both are present, Section 34 of the IPC would not have any application. A person sought to
be held responsible with the aid of Section 34 of the IPC, must share a common intention either by omission or commission in effectuating the crime.
23. In the instant case, incident dated 24.05.2012 is an independent incident. There is no whisper of sharing common intention with respect to the said
incident in any of the complaints made by the complainant before filing of the complaint case in court. Merely, making a bald statement that all
accused persons whosoever, they may be, share common intention would not, in a case like the present one, result in implicating the accused with the
aid of Section 34 of the IPC. In the absence of there being specific averments so as to evidence the actual commission of an offence, the same being
absent in the present case, the argument made by the learned Senior Counsel appearing for the respondent that with the aid of Section 34 of the IPC,
the petitioner is also responsible for the charges, is not acceptable.
24. The decision relied upon by learned counsel for the respondent No. 1 in the case of Ex. Major (Supra) stands on an altogether different footing.
The other decisions relied upon by learned counsel appearing for respondent No. 1 would also be of no help to him as the decision in the case of
Shivjee Singh (Supra) relates to scope of enquiry under Section 202(1) of the Cr.P.C and decision in the case of Padal Venkata Rama Reddy alias
Ramu (Supra) relates to scope of quashing of criminal proceedings in exercise of power under Section 482 of the Cr.P.C. The legal proposition
propounded therein is not disputed but the same will have application depending upon the facts of each case.
25. Having considered the submissions and after analyzing the material available on record, it is seen that firstly, the order passed by the learned
Metropolitan Magistrate is without application of mind and the same deserves to be set aside merely on this ground alone. Secondly, if the allegation
made in the complaint, if are, taken at their face value and accepted in their entirety, the same do not prima facie constitute any offence or make out a
case against the present petitioner. Thirdly, the criminal proceedings are manifestly attended with mala fide and are found to have been instituted
maliciously with an ulterior motive of taking vengeance against the management to pressurize them not to transfer the respondent-accused, as she has
issued the charge sheet to the complainant on 26.05.2012.
26. In view of the aforesaid, the impugned complaint and the order dated 01.11.2013 of taking cognizance, so far as the same relates to the present
petitioner (accused No. 1) is concerned, is set aside. However, the concerned court is at liberty to continue the proceedings against the other accused
persons, in accordance with law. It is made clear that nothing observed in this order shall influence the trial against any other accused persons. The
facts and legal position have been considered only with respect to the case relating to petitioner (accused No.1).
27. Accordingly, the petition stands allowed.
