C.R. Sarma, J.@mdashBy this application, filed u/s 482 of the Code of Criminal Procedure, 1973 (herein after referred to as the "Cr.P.C."), the petitioner namely, Smti Leena Doley, who is an accused in C.R. Case No. 672c of 2012, pending before the learned Chief Judicial Magistrate, 1st Class, Kamrup, Guwahati has prayed for quashing the said proceeding and setting aside the impugned order, dated 29.03.2012, passed in the said case, whereby the learned Magistrate, First Class, while taking cognizance of offence u/s 500 of the Indian Penal Code (in short, the "IPC"), issued summons to the petitioner. The material facts of the case, as required for disposal of this petition, may, in brief, be stated as follows:
The petitioner has been serving as the Additional Superintendent of Police, Dial 100 PCR, Guwahati City. She, in her said capacity, attended an official meeting, on 13.03.2012, in connection with inauguration of the project namely, "Dial 100" in the office of the Director General of Police, Assam and the said meeting was attended, amongst others, by the Inspector General of Police (Logistics) Shri Mukesh Agarwal, who is the husband of the private respondent. The petitioner, after the said meeting, in order to discuss some follow up action, visited the office of the Inspector General of Police (Logistics) and he finding her alone, in his office, suggested her to accompany him to some outside location for a holiday break. The petitioner, being annoyed, demanded apology from the said senior officer for making such lewd remarks and he also, asking her to for give him, assured that he would never repeat such things in future. According to the petitioner, after returning home, she told her husband about the said incident and immediately, thereafter, called up said senior officer''s wife i.e. the private respondent and narrated her the entire episode. The petitioner, apart from verbally reporting the matter to the Director General of Police, Assam, on 13.03.2012, also submitted a formal complaint, on 15.03.2012, alleging sexual harassment and issued copies of the same to (1) Smti Mamta Sharma, Chairperson, National Commission for Women, 4, Deen Dayal Upadhayaya Marg, New Delhi-110002, (2), Smti B. Bhamathi, Addl. Secretary, Centre State, Ministry of Home Affairs, North Block, Central Secretariat, New Delhi-110001, (3) Shri N.K. Das, IAS, Chief Secretary, Assam, Dispur, Guwahati, (4) Smti T.Y. Das, IAS, Principal Secretary to the Chief Minister of Assam, Dispur, Guwahati, (5) Smti Jishnu Baruah, IAS, the Commissioner & Secretary to the Government of Assam, Home, Political Border Areas & Passport Department, Dispur, Guwahati and (6) Smti Mira Baruah, Chairperson, Assam State Commission for Women, Bal Bhawan, Uzanbazar, Guwahati. The petitioner found that the incident was reported in several dailies and also telecasted through local television channels.
2. The opposite party No. 2 namely Smti Vanita Agarwal i.e. the wife of the Inspector General of Police (Logistics), on 19.03.2012, filed a Complaint Case, being Case No. 672c of 2012, before the leaned Chief Judicial Magistrate, First Class, Kamrup, Guwahati, alleging, therein, that the petitioner had circulated the said complaint, dated 15.03.2012, to different agencies, officials, media and public in general, bringing false allegations against her husband and thereby caused harm to the reputation of the complainant i.e. opposite party No. 2 and her husband and, thus, committed the offences under Sections 499/500 IPC.
3. On receipt of the complaint, the learned Chief Judicial Magistrate, 1st Class, Kamrup, Guwahati, on 29.03.2012, took cognizance of offence u/s 500 IPC and issued summons to the petitioner.
Aggrieved by the taking of cognizance and issuance of process aforesaid, the petitioner has come up with this quashing petition.
According to the petitioner, the impugned order, dated 29.03.2012, was passed in contravention of the provision of law and without application of mind inasmuch as the complainant was not the person aggrieved by the action initiated by the petitioner. She also contended that she never gave any statement to any member of the print and electronic media pertaining to her complaint, dated 15.03.2012, as well as the incident that took place on 13.03.2012 and as such she cannot be held liable for committing the offence u/s 500 of the IPC. Her further contention is that the complainant/opposite Party No. 2, being the wife of the concerned officer, against whom the complaint has been lodged, before the appropriate authority, cannot file the complaint, as a proxy on behalf of her husband, in as much as the complaint indicates an incident, that took place between the two officers, in office room, within the office hours. It is contended that she was compelled to exercise her lawful right in filing the complaint before the appropriate authority. Her further contention is that the impugned order, dated 29.3.2012, passed by the learned Judicial Magistrate, First Class, Kamrup is liable to be quashed, on the ground that the court below failed to appreciate the applicability of the ninth exception enshrined in Section 499 of the Penal Code. According to the petitioner, the acts done by her do not constitute an offence u/s 499 of the penal code and as such, the proceeding initiated against her, as well as the impugned order aforesaid are liable to be set aside and quashed.
4. Mr. P.K. Goswami, learned senior counsel, referring to the complaint, lodged by the petitioner, alleging, sexual harassment at the work place, has submitted that the Supreme Court by the land mark judgment and order, passed in the case of
5. The learned senior counsel has strenuously argued that, as the petitioner lodged her complaint alleging sexual harassment in work place, in exercise of her right provided by the Apex Court in the case of Vishaka (supra), continuance of criminal proceedings against her, for bringing such allegations would amount to discouraging an employee, subjected to sexual harassment, from lodging complaint before the employer or the controlling authority and thus initiation of such criminal proceeding will defeat the very object of the protection, provided by and the law laid down in the case of Vishaka (supra). It is submitted, by the leaned senior counsel, that, in view of the legal inability of her husband to initiate proceeding for defamation, the private respondent also, being wife of the concerned employee can''t be allowed to bring action for defamation.
6. The learned senior counsel submitted that the action initiated by the petitioner is covered by the 9th exception to Section 499 IPC and as such no criminal case will lie against the petitioner.
7. The further contention of the leaned senior counsel, for the petitioner, is that the petitioner, being a public servant, exercised her right to lodge complaint, in exercise of her official duty, and as such she is protected by Section 197 Cr.P.C.
8. The learned senior counsel has also submitted that the petitioner in her complaint, lodged against the private respondent''s husband, did not make any defamatory statement against the private respondent and as such the respondent can''t be treated as an aggrieved person, u/s 199 Cr.P.C. for which she can''t bring a proceeding, alleging defamation against the petitioner. It is further stated that the private respondent, neither in the complaint nor in her statement, made u/s 200 Cr.P.C., made any whisper alleging that the petitioner had made any defamatory statement against her. Therefore, it is submitted that no prima facie case u/s 499 IPC having been made out, the learned Magistrate committed error by taking cognizance of the offence u/s 500 IPC and as such the proceedings and the impugned order, dated 29.03.2012 are liable to be quashed and set aside.
9. In support of his contention, the learned senior counsel, for the petitioner, has relied on the following decisions:
(1)
(2)Nazeem Bavakunju Vs. State of Kerala Ors., reported in 1988 Crl. LJ 487.
(3)
(4)
(5)
(6)
(7)
10. Refuting the argument, advanced by the learned senior counsel, appearing for the petitioner and supporting the proceeding as well as the impugned order, Mr. G.N. Shahewalla, learned senior counsel, appearing for the private respondent, has submitted that, in view of scandalous allegations made against the husband of the private respondent, she being the wife has sufficient reasons to feel that she and her husband have been wrongly harassed and injured and as such, she, being an aggrieved person, within the meaning of Section 499 IPC, has rightly filed the complaint and that the leaned Magistrate committed no error by taking cognizance of offence u/s 500 IPC.
11. It is also submitted that, the petitioner, committed the offence u/s 500 IPC by circulating the copies of her complaint petition, containing defamatory statements, to various authorities and publishing the same through media and as such she, intentionally, defamed the private respondent and her husband.
The learned senior counsel, for the private respondent, further contented that the act of filing the complaint, bringing scandalous allegations against the husband of the private respondent, can''t be treated either as an official act or an act done in furtherance of official duty. Therefore, it is submitted that the act done by the petitioner is not covered by section 197 Cr.P.C. and as such no prior sanction was necessary, for initiating the criminal proceeding against her.
12. Mr. Shahewalla, learned senior counsel, further submitted that the act of bringing scandalous and harmful allegations, by the petitioner, coupled with the fact of circulating/publishing the said allegations, amounted to committing the offence u/s 500 IPC and as such the learned Magistrate committed no error by taking cognizance of the offence. Therefore, it is submitted that the proceeding and the impugned order, dated 29.03.2012, are not liable to be quashed and set aside.
13. In support of his contentions, the learned senior counsel, for the private respondent, has relied on the following decisions.
(1)
(2)Nazeem Bavakunju Vs. State of Kerala & Ors., reported in 1988 Cri. L.J. 487.
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
14. Adopting the argument, advanced by the learned counsel, appearing for the private respondent and supporting the impugned order, the learned Addl. Public Prosecutor has submitted that the learned Magistrate committed no error by passing the impugned order.
15. Having heard Mr. P.K. Goswami, learned senior counsel, appearing for the petitioner, Mr. G.N. Shahewalla, learned senior counsel, appearing for the private respondent and Mrs. B. Saikia, learned Addl. Public Prosecutor, Assam, appearing for the State respondent, I have gone through the materials on record, more particularly, the complaint filed by the petitioner before the Director General of Police, Assam, the complaint filed by the private respondent, the statement recorded under Sections 200 Cr. P.C. and the impugned order, dated 29.03.2012, passed by the learned Judicial Magistrate.
16. For the sake of convenience and for ready reference, the said complaints are reproduced herein below:
The complaint filed by the private respondent.
The complaint of the complainant above named.
MOST RESPECTFULLY SHEWETH:
1. That the complainant is the wife of Sri Mukesh Agrawal, who is an Inspector General of Police (Logistics), Assam, a government employee serving in the Police Department after being selected in the prestigious Indian Police Service, joined in the Assam and Meghalaya cadre in the year 1989. The complainant is the B.E. Electrical and L.L.B. She is further pursuing final semester of M.E. in Assam Engineering College, Guwahati. The complainant hails from a very respectable family. Her father is a retired General Manager of Coal India Limited and her mother retired as Reader of Mathematics, Ranchi University.
2. That since the joining of the complainant''s husband into the Indian Police Service in the year 1989, after initially serving in Meghalaya till early part of the year 1993, the complainant''s husband has been serving in the Assam Police Department of Assam, rendering his services sincerely and diligently and there have been no complaints against him from any quarter. Due to his hard work and efficiency, he has earned good name and reputation not only within the Department but also amongst the public. He has also been awarded "Meritorious Service Medal" on 15.8.2006 by H.E. the President of India besides receiving Commendations and Appreciations from the Office of H.E. the Vice President of India (year 2004), office of Hon''ble Prime Minister of India (Year 2004), State Government and other senior Officials.
3. That the accused is a Junior rank officer of the Assam Police holding the post of Additional S.P. and In-charge of the Project Dial - 100 for Guwahati City. The accused has been known to the complainant''s husband since 2008 and since then the accused person met the husband of the complainant in his office chamber for various official works on a regular basis and on almost all the occasions, the accused person has been treated by the complainant''s husband with extreme modesty, honour and dignity as any other Junior Officer of the Department is treated with.
4. That, on 13.03.2012 at about 11:00 a.m., a meeting was convened in Assam Police Headquarters, Ulubari, Guwahati with the Director General of Police, Assam regarding the arrangements to be made for inauguration of Dial-100 Project of Guwahati City Police Control Room wherein the Complainant''s husband and other officers including the accused attended. After the meeting was over, the Complainant''s husband invited the delegates present in the meeting including the accused person for a cup of tea in his office chamber located on the ground floor of Assam Police Headquarters. The accused person came for tea and other''s left.
5. That, the accused person was offered tea and biscuits in the official chamber of the complainant''s husband and he even congratulated the accused person for her hard work and accomplishment of the Dial-100 Project. The complainant''s husband also genuinely thanked the accused person for her sincere and dedicated services for implementation of the said Project as the In-charge right from the inception stage of the said Project. Thereafter, the complainant''s husband to boost up the morale of the accused stated that after successful implementation of the Project, the complainant''s husband along with the officers concerned with the Project including the accused should celebrate their success.
6. Thereafter, the accused left the official chamber of the complainant''s husband and after half an hour, the accused came back to the chamber of the complainant''s husband and stated that the complainant''s husband owed an apology to the accused. The complainant''s husband being surprised asked the accused as to why he owed an apology to the accused. To this the accused stated that since the complainant''s husband had made an "inappropriate proposal" for celebration of the occasion referred above, the apology is in order.
7. That on 16.03.2012, at about 7:45 pm, when the complainant''s husband was at home, many phone calls were made to him by his well wishers and acquaintances stating that a defamatory news item is being telecast in one of the regional News Channels describing that the complainant''s husband had harassed the accused by sending SMS with unpleasant and filthy words with an offer to accompany her to Shillong on holiday and also sexually harassed the accused. The complainant then switched on the TV and was surprised to see the allegations leveled against her husband being telecast on TV Channel ''News Live''. On making enquiry upon the reported incident, the complainant''s husband informed the complainant that the allegations which were telecast were absolutely false and concocted as the complainant''s husband did not send any SMS to the accused nor did he harass the accused as alleged.
8. That on 17.03.2012, to the utter shock and surprise of the complainant, she was informed by her husband that news item repeating the same allegations mentioned above has appeared in 2(two) daily vernaculars. Various phone calls were also received by the complainant and her husband from various acquaintances including her parents-in-laws asking the authenticity of the reports furnished by the print/electronic media demeaning the complainant and her husband''s self-esteem and self-worth.
9. That, on 17.3.2012 at about 7 p.m., one Sri Dhan Raj Jain, the Witness No. 1 brought a letter dated 15.3.2012 to the complainant''s husband, the same being addressed to the Director General of Police, Assam submitted by the accused. To the utter shock and surprise of the complainant''s husband, when he enquired wherefrom that letter addressed to Director General of Police, Assam was made available to the him, Witness No. 1 replied that the same has been found by him in the evening at the door steps of his office situated at Bhangagarh, Guwahati. This shows that the accused has circulated the letter but also to the print/electronic media and also amongst the public.
10. That the complainant states that, assuming but not admitting that the entire allegation made against the complainant''s husband submitted by the accused in her letter dt. 15.3.2012 is taken to be at face value, no such offences have been made out with regards to sexual harassment. The complainant after enquiring from her husband reiterates and reaffirm that the allegations made in the letter dt. 15.3.2012 are absolutely false and the same has been submitted by the accused out of personal vengeance against the complainant''s husband.
11. That the complaint letter which has been lodged by the accused person before the authority concerned is a matter within the parameters of the department, but the accused with a mala fide intention has gone beyond the limit by circulating the same before the Press and public causing imputation to the image and reputation of the complainant and her husband in the eyes of their relatives, their family members and as well as the public at large.
12. That, it is worth to mention herein that on 13.03.2012, the accused also made a call to the complainant over her mobile phone in the afternoon threatening her with the dire consequences and also used abusive language.
13. That the complainant states that the accused, by circulating letter dated 15.03.2012 to the different agencies, officials, media and the public caused harm to the reputation of the complainant and her husband, which the complainant''s husband has earned during his service career. The accused person has defamed the complainant and her husband and thereby committed an offence under the provisions of Section 499 and 500 of the Indian Penal Code.
14. That the witnesses will prove this case. The cause of action arose on 15.03.2012, 16.03.2012, 17.03.2012 and on subsequent dates thereof.
15. That the complaint is filed bona fide and for the ends of justice.
In the premises aforesaid the complainant prays that Your Honour may be pleased to take cognizance u/s 500 of the IPC and issue process to the accused person in accordance with Law or pass further order(s) as Your Honour may deem fit and proper.
And for this act of kindness, the complainant as in duty bound shall ever pray.
The complaint filed by the petitioner before the Director General of Police. Assam.
ANNEXURE-I
To,
Shri Jayanto Narayan choudhury, IPS,
Director General of Police, Assam,
Ulubari, Guwahati.
Dated 15.03.2012.
Through the Proper Channel.
Sub:- Complaint Regarding sexual Harassment Committed by Shri Mukesh Agrawal, IPS, Inspector General of Police (Logistic), Assam, Guwahati.
Sir,
With reference to the above, I most regretfully inform you that the undersigned has been subject to sexual harassment committed by Shri Mukesh Agrawal, IPS, Inspector General of Police (Logistic), Assam, Guwahati.
The incident refers to the afternoon of 13.03.2012, when the undersigned after attending a meeting with the DGP, Assam at 11 a.m. alongwith Shri G.P. Singh, IPS, IGP (CWR) Assam, Shri Apurba Jiban Baruah, IPS, SSP, Guwahati City as well as the accused officer in question regarding the Inauguration of the Dial 100 PCR, scheduled to be held on 17.03.2012, had visited the said officer''s chambers at APHQrs around 12 noon. While the IGP (CWR), Assam and the SSP, Guwahati City proceeded to their respective schedule of work, the undersigned had discussed with the accused officer about the issuance of an income certificate for her mother who is a family pensioner.
However, the IGP (Logistic) made a suggestion which is absolutely offensive and sexually harassing in nature. He suggested to the undersigned that she accompany him to some location outside for a holiday break from work after the scheduled Inauguration of the Dial 100 PCR on 17.03.2012.
The accused officer on being refused and confronted to for making such unwarranted sexually offensive remarks, apologized to the undersigned.
The undersigned informed the matter to the wife of the accused over phone to let her know of the doings of her husband. The same was also discussed by the undersigned with her husband. Further, the same evening around 5:30 pm, the undersigned reported the matter to your good self verbally.
The undersigned further begs to state that after rendering service to the department for a period of almost 10 yrs since 2002, facing an incident of such nature is completely demoralizing and demeaning to one''s dignity to say the least. If an officer of the rank of Addl. SP is behaved with in such a manner, the situation of other women officers and women personnel working in the department needs much to be rectified. The safety and sanctity of the workplace from where we earn our livelihood, our identity and our status in society has been destroyed by such derogatory remarks with sexual undertone. An IPS officer of the rank of Inspector General of Police is hardly expected to conduct himself in so depraved a manner as to one who''s lacking in education or adequate training regarding how to conduct himself especially with a woman.
This incident not only upsets the work environment of the undersigned but of all women working in the department.
Therefore, in view of the above, it is requested that proper disciplinary action be taken against the said accused Shri Mukesh Agrawal, IPS, Inspector General of Police (Logistic), Assam, and adequate steps taken to ensure that such derogatory remarks/acts are not made/committed in future by any other officer to any woman in the department or elsewhere for that matter. The dignity of the undersigned as well as the dignity of all women working in the department is at stake here. The environment for women in the workplace needs to be safeguard against such offensive incidents.
It is therefore, humbly prayed that necessary action be taken to ensure that the fundamental rights of the undersigned as a citizen of India under Article 14, 19 & 21 of the Constitution of India are restored and not infringed upon. Submitted for favour of kind perusal.
Yours faithfully,
Sd/- (LEENA DOLEY)
SSO to the CC, VDO,
Assam & Addl. SP.
Dial 100 PCR,
Guwahati City.
Copy forwarded for favour of kind information to:-
(1) Smti Mamta Sharma, Chairperson, National Commission for Women, 4, Deen Dayal Upadhayaya Marg, New Delhi-11000.
(2) Smti B. Bhamathi, Addl. Secretary, Centre State, Ministry of Home Affairs, North Block, Central Secretariat, New Delhi-110001.
(3) Shri N.K. Das, IAS, Chief Secretary, Assam, Dispur, Guwahati
(4) Smti T.Y. Das, IAS, Principal Secretary to the Chief Minister of Assam, Dispur, Guwahati.
(5) Smti Jishnu Baruah, IAS, the Commissioner & Secretary to the Government of Assam, Home, Political Border Areas & Passport Department, Dispur, Guwahati.
(6) Smti Mira Baruah, Chairperson, Assam State Commission for Women, Bal Bhawan, Uzanbazar, Guwahati.
17. A combined reading of the said complaints reveals that the complainant of the said criminal proceeding, who is the wife of the officer, against whom allegations of sexual harassment, in work place, has been brought by a lady officer, by filing a formal complaint before the Director General of Police i.e. the superior officer, is aggrieved and felt defamed by the act of bringing the allegations pertaining to sexual harassment and publication of the same through print and electronic media.
18. There is no dispute regarding filing of the said complaint by the petitioner before the Director General of Police, Assam (hereinafter called D.G.P.). It is also admitted position that the said imputation were published in news paper and telecasted through the electronic media.
19. Undisputedly, the person against whom the complaint, alleging sexual harassment, has been made has not filed the complaint case. But his wife, against whom no allegation has been made by the petitioner and who was not present, at the time of the alleged incident, which took place in the office of the husband of the private respondent, has field the instant complaint case, alleging defamation and the learned Magistrate has taken cognizance of offence u/s 500 IPC.
20. A careful reading of the complaint indicates that the private respondent is aggrieved by the circulation of the imputations amongst different officials and the publication of the same through media by the accused i.e. the present petitioner. At paragraphs 11 and 12 of her complaint, the complainant has stated that though the complaint made by the petitioner before the Director General of Police is a matter within the parameters of the Department, the accused, with a malafide intention, has gone beyond the limit by circulating the same causing harm to the image and reputation of the complainant and her husband, in the eyes of their relatives and the public.
21. Now the question is whether the petitioner, by her said acts, defamed the private respondent and whether the private respondent is an aggrieved person, as defined u/s 199 Cr.P.C.
Section 199 of the Cr.P.C. provides that no cognizance of offence under Chapter XXI of the IPC can be taken by a court except upon a complaint made by some person aggrieved by the offence. However, in case of a person under the age of 18 years, or is an idiot or a lunatic or is from sickness, or infirmity unable to make a complaint or is a woman who, according to local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf.
Section 499 IPC, which defines defamation, reads as follows:
Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes 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, is said, except in the cases hereinafter excepted, to defame that person.
The exceptions are as follows.
First Exception.- Imputation of truth which public good requires to be made or published.- It is not defamation to impute anything which is true concerning any person. If it to be the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception.- Public conduct of public servants.- It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception.- Conduct of any persons touching any public question.- It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in the conduct, an no further.
Fourth Exception.- Publication of reports of proceedings of Courts.- It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation.- A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.
Fifth Exception.- Merits of case decided in Court or conduct of witnesses and others concerned.- It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Sixth Exception.- Merits of public performance.- It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and on further.
Explanation.- A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
Seventh Exception.- Censure passed in good faith by person having lawful authority over another.- It is not defamation in a person having over another any authority either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eighth Exception.- Accusation preferred in good faith to authorized person.- It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Ninth Exception.- Imputation made in good faith by person for protection of his or other''s interests.- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
Tenth Exception.- Caution intended for good of person to whom conveyed or for public good.- It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the food of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
22. In the present case, as revealed from the complaints aforesaid, it appears that the petitioner has brought certain imputations relating to the conduct and character of the husband of the private respondent.
The private respondent is aggrieved by the said imputations made against her husband and also for circulating/publishing the same through print and electronic media. Admittedly, in her written complaint, made before the D.G.P., the petitioner did not whisper anything against the complainant i.e. the private respondent. The said complaint relates to an incident that took place in between two employees, in their work place and both of them used to work under the control of the DGP. The alleged news items, published through the print and the electronic media, also contained allegations of sexual harassment against the private respondent''s husband. As alleged, the copies of the complaint, filed before the DGP, have been circulated to various authorities and a copy of the same was found by one Sri Dhan Raj Jain in his office.
Therefore, the complaint filed by the private respondent includes two parts. Firstly, the submission of a formal complaint before the DGP and secondly the circulation of the copy of the same amongst various authorities/persons and publishing the same through media
23. The petitioner, while admitting the submission of the complaint before the DGP and sending the copies of the same to various authorities, namely, (1) Smti Mamta Sharma, Chairperson, National Commission for Women, 4, Deen Dayal Upadhayaya Marg, New Delhi-11000. (2) Smti B. Bhamathi, Addl. Secretary, Centre State, Ministry of Home Affairs, North Block, Central Secretariat, New Delhi- 110001. (3) Shri N.K. Das, IAS, Chief Secretary, Assam, Dispur, Guwahati. (4) Smti T.Y. Das, IAS, Principal Secretary to the Chief Minister of Assam, Dispur, Guwahati. (5) Smti Jishnu Baruah, IAS, the Commissioner & Secretary to the Government of Assam, Home, Political Border Areas & Passport Department, Dispur, Guwahati. (6) Smti Mira Baruah, Chairperson, Assam State Commission for Women, Bal Bhawan, Uzanbazar, Guwahati, categorically denied to have made any statement to the media. Thus, she denied the allegation of making any publication through the media and circulation the same to any other persons, except to the above named authorities.
24. In view of the above stated imputations, made by the petitioner, we are required to examine if the private respondent is a person aggrieved.
25. As per the statutory provision, person aggrieved can bring action for defamation. According to Black Law Dictionary, the word ''aggrieved'' is defined as "having suffered loss or injury; damnified. According to Oxford Dictionaries, the word "aggrieved" is defined as feeling resentment at having unfairly treated.
26. In the case of Nazeem Bavakunju (supra) the imputation was about the performance of the complainant''s husband in respect of his official duties. It was alleged that the complainant''s husband, who was a convener of Publicity Committee left for Gulf country. It was argued, on behalf of the complainant, that considering the husband and wife relationship prevalent in our society, the wife is to be considered as an indivisible part of the husband and therefore she is really aggrieved in a case where her husband''s reputation is at stake. The proceeding initiated by the wife of the said officer was determined by the trial court resulting acquittal of the accused. Dismissing the appeal, against the order of acquittal, the Supreme Court observed,
3A. There may be cases where the wife also would be really aggrieved when the imputation is of such a nature that it has got some direct connection attaching the reputation of the wife. Section 199 Cr.P.C. restricts the power of the court in taking cognizance of offence except upon a complaint filed by some aggrieved person.
The question is whether the person who filed the complaint of defamation is or is not really aggrieved within the meaning of that Section. This is a question which should be decided on the basis of the nature of accusation and also on other relevant circumstances. A fanciful or sentimental grievance of the complainant would not suffice. It must be such a grievance as the law can appreciate and it must be what has been treated "legal grievance" only such a person as has directly or indirectly suffered loss or reputation complained of can alone set the law in motion.
27. In deciding the said case, the Supreme Court held that the imputation was about the performance of the complainant''s husband in respect of his official duties and even if the imputations are per se defamatory it cannot be said that the complainant was really aggrieved by such statement
In the case at hand also the imputations have been made against the husband of the complainant The imputations are not directed against the complainant or other members of her family. Therefore, in view of the principles laid down in the said case, the private respondent cannot be treated as an aggrieved person.
28. In the case of M/s. Jayaraj (supra), while deciding the question of locus standi in the writ petition, the Supreme Court observed that a wider canvass has been adopted regarding a person''s entitlement to move High Court having writ jurisdiction. The locus standi to invoke writ jurisdiction and the locus standi to file a defamation case can not be same. Person not covered by Section 199 Cr.P.C. cannot file a complaint for defamation. Therefore, the decision held in M/s. Jayaraj (supra) does not help the complainant
29. In view of the above decision if the imputations, made against the husband, are found to have some direct connection attaching the reputation of the wife also, then, only, the wife can bring legal action for defamation and in such cases the wife can be treated as an aggrieved person.
30. In the case of Jhon Thomas (supra), the Supreme Court observed.
13. The collocation of the words "by some person aggrieved" in Section 199 definitely '' indicates that the complainant need not necessarily be defamed person himself. Whether the complainant has reason to feel hurt on account of the publication is a matter to be determined by the Court depending upon the facts of the case. If a company is described as engaging itself in nefarious activities, its impact would certainly fall on every Director of the company and hence he can legitimately feel the pinch of it. Similarly, if a firm is described in publication as carrying of offensive trade, every working partner of the firm can reasonably be expected to feel aggrieved by it.
Normally, scandalous allegations, made against a member of a family affect all the members of the family, more so if the imputations are made against the family as a whole. Therefore, any imputation made against the husband will certainly make the wife feel bad. But in order to lodge a case for defamation, the complainant must be an aggrieved person. In the attending facts and circumstances of the present case, it is to be determined whether the private respondent is legally aggrieved person, within the meaning of Section 199 Cr.P.C., having locus to bring action for defamation. In short, her grievance must be legal grievance.
31. In the present case, the imputations have been made alleging sexual harassment in the work place against a superior officer, in his personal name without any reference to the complainant i.e. wife of the said officer. The petitioner in her complaint, made to the DGP, has stated as to what was done by one of her superior officer, in her work place. The imputations, made therein, pertain to the conduct, character and behavior of the said officer. Therefore, the imputations made against the husband of the complainant i.e. against a particular individual, no way, legally, effect the reputation of such person''s wife i.e. the complainant. Hence, the complainant cannot be treated as an aggrieved person, u/s 199 Cr.P.C. Her grievance is a sentimental one and not based on legal injury.
32. The Supreme Court in the case of S. Khushboo (supra), defined offence as follows:
''offence'' means ''an act or instance of offending'' commit an illegal act and illegal means, ''contrary to or forbidden by law''. ''Offence'' has to be read and understood in the context as it has been prescribed under the provision of Sections 40, 41 and 42 IPC which cover the offences punishable under IPC or under special or local laws or as defined u/s 2(n) Cr. PC or Section 3(38) of the General Clauses Act, 1897.
In view of the above there is no difficulty in understanding that an act done, which is contrary to law or forbidden by law is an offence.
Therefore, the question that arises for determination is whether the submission of the complaint by the petitioner before her controlling authority, alleging sexual harassment in work place, constituted an offence.
33. In the case of Vishaka (supra) the Supreme Court, explaining the true concept of ''gender equality'' and requirement of ''safe working environment'' to carry on any occupation and trade, in exercise of fundamental rights, has laid down certain guidelines with a view to prevent sexual harassment of working women, in all work places through judicial process.
As held by the Supreme Court, in the absence of any enacted law regarding Sexual harassment, the direction and the guidelines made in the said case are to be treated as law under Article 141 of the constitution of India.
34. In defining sexual harassment, the Supreme Court observed.
2. Definition.- For the purpose, sexual harassment includes, such unwelcome sexually determined behavior (whether directly or by implication) as:
(a) physical contact and advances;
(b) a demand or request for sexual favours;
(c) sexually-coloured remarks;
(d) showing pornography;
(e) any other welcome physical, verbal or non-verbal conduct of sexual nature.
where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim''s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprises such conduct can be humiliating and my constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
35. While providing the preventive steps and the provision for initiating criminal proceedings, the Supreme Court prescribed a complaint mechanism directing constitution of complaints Committee.
As laid down by the Supreme Court, in respect of complaint received from the victim for redressal, there should be a mechanism to ensure time bound treatment.
In view of the above, a working woman, apprehending sexual harassment or alleging sexual harassment, in her work place, is lawfully entitled to file complaint before the employer or the appropriate authority, seeking relief against sexual harassment
Therefore, the petitioner being a working lady, undoubtedly, has the legal right to lodge complaint before the D.G.P. alleging sexual harassment The act of bringing the said imputations, against the husband of the complainant, being protected by the law, laid down by the Supreme Court, no criminal proceedings for defamation can be brought against her, on the ground that she made imputations against the husband of the complainant. Permitting a proceeding for defamation, on the ground of filing complaint alleging sexual harassment, would amount to discouraging a victim from exercising her right to seek relief as provided by the Supreme Court. No doubt, continuance of criminal proceeding against the victim will frustrate the very object of the protections provided in the Vishaka (supra). Therefore, there can be no dispute that the person, against whom allegations of sexual harassment is brought, can''t file a complaint for defamation.
36. Now the question is whether the wife of such person can initiate proceeding for defamation. Fact remains that the petitioner i.e. the accused did not state anything, in her complaint, against the complainant. Therefore, it is to be examined if she could file a complaint, claiming herself as the aggrieved person, in respect of the imputations made against her husband
37. As held by the Supreme Court, in the case of Delhi Administration (supra) what can be done directly cannot be permitted to be done indirectly.
38. In the case of Ram Preeti Yadav (supra), also the Supreme Court observed:-
It is well settled that what cannot be done directly, cannot be done individually.
In view of the above principles of law, laid down by the Apex Court, the wife of the person concerned also cannot be allowed to initiate a proceeding for defamation against the victim, for bringing imputation against her husband as much as the husband is debarred from filing a defamation case.
To make it simple, the complainant cannot act as a proxy to her husband and indirectly prevent the victim from filing complaint alleging sexual harassment
39. Another contention of the complainant is that the accused defamed her and her husband by circulating and publishing the copy of the complaint filed by her. The accused, besides submitting her complaint before the DGP, Assam, sent copies of the same to (1) Smti Mamta Sharma, Chairperson, National Commission for Women, 4, Deen Dayal Upadhayaya Marg, New Delhi-11000. (2) Smti B. Bhamathi, Addl. Secretary, Centre State, Ministry of Home Affairs, North Block, Central Secretariat, New Delhi-110001. (3) Shri N.K. Das, IAS, Chief Secretary, Assam, Dispur, Guwahati. (4) Smti T.Y. Das, IAS, Principal Secretary to the Chief Minister of Assam, Dispur, Guwahati. (5) Smti Jishnu Baruah, IAS, the Commissioner & Secretary to the Government of Assam, Home, Political Border Areas & Passport Department, Dispur, Guwahati. (6) Smti Mira Baruah, Chairperson, Assam State Commission for Women, Bal Bhawan, Uzanbazar, Guwahati.
40. In the case of Vishaka (supra) the Supreme Court has provided that, apart from filing the complaint, containing imputation regarding sexual harassment in work place, the employees should be allowed to raise issues of sexual harassment at worker''s meeting and in other appropriate forum and that it should be affirmatively discussed in employer-employee meeting.
The victim has been given the liberty to discuss the matter regarding sexual harassment with other employees and also raise such matter in the meeting of employer-employees, in addition to raising the matter before the appropriate forum.
Therefore, the victim has the right to bring the matter to the notice of other employees and such other relevant authorities.
Admittedly, she, in addition to submitting her complaint, before the DGP i.e. her controlling authority, also sent the copies of the complaint to (1) Smti Mamta Sharma, Chairperson, National Commission for Women, 4, Deen Dayal Upadhayaya Marg, New Delhi-11000. (2) Smti B. Bhamathi, Addl. Secretary, Centre State, Ministry of Home Affairs, North Block, Central Secretariat, New Delhi-110001. (3) Shri N.K. Das, IAS, Chief Secretary, Assam, Dispur, Guwahati. (4) Smti T.Y. Das, IAS, Principal Secretary to the Chief Minister of Assam, Dispur, Guwahati. (5) Smti Jishnu Baruah, IAS, the Commissioner & Secretary to the Government of Assam, Home, Political Border Areas & Passport Department, Dispur, Guwahati. (6) Smti Mira Baruah, Chairperson, Assam State Commission for Women, Bal Bhawan, Uzanbazar, Guwahati. As the said authorities at Sl. Nos. 1 and 6 are concerned with the right, liberty and welfare of woman and other authorities at Sl. Nos. 2 to 5 have control in the administration of the Police Department, to which the victim and the concerned officer belong, issuance of copies of the complaint, containing allegations of sexual harassment in work place, cannot be held to be un lawful, inasmuch as there is no bar in sending copies of the same to the said authorities.
41. That apart, in view of the provision for raising the issue in the meeting of the employer/worker, it can be understood that the matter will get publication/circulation. Therefore, there can be no requirement for keeping the issue as a secret or confidential one.
As stated by the complainant a copy of the complaint, filed by the victim, was found in the door step of the office by Shri Dhanraj Jain and that the matter was published through the print media and electronic media (T.V.) as news items. The petitioner i.e. the accused has denied to have made any statement before the media. The concerned news paper(s) and the T.V. channel(s) through which the matter was published have neither been added as witness nor accused. The said media authorities were the best persons to disclose if the accused had played any role in publishing the said news items. There is nothing, on record, more particularly, in the complaint petition to show that the accused had caused circulation/publication of the said matter.
That apart, in view of the provision for raising such issue in the meeting of the employer and employee and liberty to raise such issue before other appropriate forum, the possibility of getting the matter published as news items through media cannot be ruled out. Therefore, the publication of the news items cannot be an offence on the part of the petitioner.
Further, even if, for argument sake, it is presumed that the accused had published the matter as news item, then, it would be found that the news item related to sexual harassment, alleged to be committed by the husband of the complainant There is nothing on record to show that the news items contained any imputation against the complainant. Hence, there is no material to find that the accused had either made or published any imputations concerning private respondent intending to harm her reputation. Therefore, the complainant has no locus to initiate proceedings for defamation.
42. The learned senior counsel, appearing for the petitioner referring to Section 197 Cr.P.C. has argued that, the petitioner being a gazetted employee, the filing of the complainant before the D.G.P. was an official act and as such no cognizance ought to have been taken without obtaining prior sanction as required by Section 197 Cr.P.C. Admittedly, no sanction to prosecute the petitioner has been given by the State Government.
As provided by Section 197 Cr.P.C. the bar, in taking cognizance of offence, without previous prosecution sanction, in respect of a public servant, not removable from his (her) office save by or with the Sanction of the Government, is applicable if the public servant is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
43. Mr. Shahewalla, learned senior counsel, appearing for the private respondent, refuting the said argument, has submitted that filing of the complainant by the accused, alleging sexual harassment, is not an official duty, in as much as no such duty has been entrusted with the petitioner. The learned senior counsel has submitted that the accused filed the said complaint completely in her personal capacity and that the said act has no relation with the discharge of any official duty of the accused as a police officer. Therefore, it is strenuously argued that no previous sanction, as provided by Section 197 Cr.P.C., is required for prosecuting the accused and as such the taking of cognizance is not hit by Section 197 Cr.P.C.
The object of Section 197 Cr.P.C., is to protect a public servant from vexatious and false criminal proceeding. In a given fact situation and circumstances of a case, the superior authority is to determine as to whether it is desirable that there should be a prosecution or not.
44. In the case of Director of Inspection & Audit (supra), the Supreme Court observed that in order to attract the provision of Section 197 Cr.P.C., there must be a reasonable connection between the act and the discharge of official duties and that the public servant can only be said to act or purporting to act in the discharge of his official duties if his act is such as to lie without the scope of his official duties. The Supreme court, in the said case observed:-
If the provisions of Section 197 Cr.P.C. are examined, it is manifest that two conditions must be fulfilled before they became applicable that the offence mentioned therein must be committed by a public servant and the other is that the public servant employed in connection with the Union, or the State Government is not removable from his service save by or with the sanction of the Central Government or the State Government, as the case may be. The object of the sanction is to provide guard against the vexatious proceedings against the Judges, Magistrate and Public Servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution. If on the date......sanction.
For this purpose the allegations made in the complaint are very much relevant to appreciate whether the acts complained of are directly concerned or reasonably connected with official duties so that if questioned the public servant could claim to have done these acts by virtue of his office, that is to say, there must be a reasonable connection between the act and the discharge of official duties. It is in this context that the words "purporting to act in discharge of the official duties" assume importance. The public servant can only be said to act or purporting to act in the discharge of his official duties if his act is such as to lie within the scope of his official duties.
45. In the case of B.S. Sambu (supra), a Munsiff-Cum-Magistrate, while submitting his remarks regarding certain allegations, made in a transfer petition, as called by the District Court termed the respondent, an Advocate, as ''rowdy'' a big gambler'' and ''a mischievous person''. The respondent filed a case for defamation u/s 499 IPC. The Magistrate took the plea that he could not be prosecuted without sanction u/s 197 Cr.P.C. The objection was rejected. High Court also upheld the said order. In an appeal, preferred by the Magistrate, the Supreme Court, while dismissing the appeal, rejected the argument, advanced on behalf of the Magistrate, that the Magistrate being asked by the District Judge to submit his remarks, what ever was written by the appellant was done while acting or purporting to act in discharge of his official duty and as such the Section 197 Cr.P.C. was applicable. The Supreme Court observed that the act of calling the Advocate (respondent) as ''rowdy'', ''big gambler'' and ''mischievous element'' cannot even remotely be discharge of official duty.
As held by the Supreme Court, in order to attract Section 197 Cr.P.C., the alleged act must bear reasonable relation to the duty and not a pretended or fanciful claim. In true sense, there must exist a nexus between the act done and the official duty.
46. In the case of Matajog Dobey (supra), the Income tax Investigation Commission issued search warrant in favour of four officers for conducting search operation. While conducting the search, the officers, in order to remove obstruction, break open the entrance door of the flat of Kashiram Agarwal, tied his darwan, who put resistance, with a rope and assaulted him causing injury. In another premises Nandal Agarwal put up resistance to the search, the officers had forcibly opened the lock of the door and, the accompanying police men held Nandaram Agarwal, assaulted and took him to the police Station.
Two complaints were filed against said officers and the cognizance was taken up by the two Magistrates. In the first case Mr. H.C. Bhari, who was one of the raiding teams raised the question of sanction u/s 197 Cr.P.C. The objection was upheld by the trial Court. High court also affirmed the said order. In the other case, Mr. Bhari''s objection, on the point of sanction, was overruled, but on revision, the, High court set aside the said order.
In appeal, filed by the complainant against the said orders of the High court, the Supreme Court, while dismissing the appeals, observed:-
Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power on the performance of the duty by any limitation or restriction, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution. If in the exercise of the power or the performance of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to, remove the obstruction or overcome the resistance. The Supreme Court has also referred to the Broom''s legal Maxims (10th Edn. at page 312, which reads as follows:
It is a rule that when the law commands a thing to be done, it authorizes the performance of whatever may be necessary for executing it''s command.
47. In the above cited case the Income Tax officers, in order to perform their official duty were required to remove the obstructions by breaking open the doors, locks and also applying force to the persons who put up resistance. Therefore, the act of applying physical force was found to be an act done in performance of official duty. The facts of the said case and the facts of the case at hand are not similar. Here the petitioner was not entrusted with an official duty to bring the imputations.
As held in the above cited cases, in order to apply the provisions of Section 197 Cr.P.C., there must be some connection between the act done and the entrusted official duty. It must be shown that it was reasonable to do the alleged act in order to perform an official duty. If in a given case, there exist such requirement then it can be said that the act was done while acting or purporting to act in discharge of official duty. The act done must be integrally connected with the duty attached to the officer of the officer concern.
48. By the landmark decision, made in the case of Vishaka (supra), the victim has been given the right to file complain before the appropriate authority and also to raise the matter before the proper forum for decision. The victim has been given the liberty either to file complaint or not to do so. There is no compulsion in this regard. But in a case of official duty, there is obligation to do the duty, failing for which the officer concerned is liable to answer.
In the case at hand, the petitioner was not entrusted with any official duty to file complaint, alleging sexual harassment, against the husband of the private respondent, what she has done is that she, exercised her right to file the complaint, alleging sexual harassment in work place for the purpose of ensuring safety in the work place. There was no official obligation to file complaint, alleging sexual harassment Therefore, the filing of the complaint, bringing imputations against the husband of the complainant i.e. the private respondent cannot be treated as an act committed while acting or purporting to act in discharge of the official duty.
Considering the entire aspect of the matter I am of the opinion that Section 197 is not attracted in the present case.
49. The learned senior counsel, appearing for the petitioner, has submitted that the imputations, brought by the petitioner, even if found to be defamatory in nature, the petitioner''s case is covered by the 9th exception of Section 499 IPC, in as much as she brought the imputations in good faith for the protection of her interest.
50. In the case of Jayanta Baruah (Supra), the cognizance of offence under Sections 500 and 501 IPC was taken against the accused/petitioner. The petitioner challenged the proceeding by filing a petition u/s 482 Cr.P.C. before the High Court. A learned single Judge of this court, while dismissing the prayer for quashing, observed that in exercising the inherent jurisdiction u/s 482 Cr.P.C. it is not for the High court to consider the defence of the accused as to enquire into the correctness or veracity of the accusations. It has also been observed that, in appropriate cases, if, in the face of documents placed by the accused, which are beyond suspicion or doubt and the accusations against the accused cannot stand, it would be travesty of justice if the accused is asked to face trial. The court also held that in order to determine if the accused-petitioner''s act or conduct falls within the exceptions, provided by Section 499 IPC, trial is imperative, because the truth or otherwise of the imputations can be determined in the trial.
There can be no dispute that in a case, where plea of good faith is taken, the accused has a burden to prove good faith and this burden can be discharged in the trial only.
51. The Supreme Court in the case of M.A. Rumugam (supra) observed:
for the purpose of bringing his case within the purview of the Eighth and Ninth Exception appended to Section 499 of the Penal Code, it would be necessary for the appellant to prove good faith for the protection of the interest of the person making it or of any other person or for the public good.
The Supreme Court in the said case also referred to the decision of good faith, as defined in "Section 52 of the IPC. Section 52 IPC reads as follows:- "Good Faith-Nothing is said to be done or believed in good faith which is done or believed without due care and attention."
As held by the Supreme Court, in the above cited case, it is well settled principle of law that a person(s), who pleads exceptions u/s 499 IPC must prove it. The burden of proof, that his/her action was bonafide, would be on the accused, pleading exception u/s 499 IPC.
Therefore, without trial, it can not be held that the act done by the accused falls under the 9th Exception of Section 499 IPC.
52. In the case of Barsha Borah Bordoloi (supra), a learned single Judge of this court, relying on the ratio laid down in the case of
(a) When the allegation made, in the FIR or the complaint, even if taken at their face value and accepted in their entirely as true does not constitute any offence or make out a case against the accused.
(b) When the uncontroverted allegations, made in the FIR or complaint and evidence collected in support of the same, do not disclose the commission of any offence and/or make out a case against the accused, and
(c) When the allegations made in the FIR or complaints are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
53. In the case of M.A. Rumugam (supra), the Supreme Court found that the allegations, made in the complaint/petition made out a prima-facie case u/s 500 IPC and as such the Supreme Court declined to quash the proceeding.
54. In the case of Bhajanlal (supra), the Supreme Court laid down the following criteria''s, under which a proceeding can be quashed, in exercise of powers conferred u/s 482 Cr.P.C. or Article 226 of the Constitution of India.
(1) Where the allegations made in the firs 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 u/s 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 u/s 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 concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and or where mere 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 malafide 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 grade.
55. As discussed above, the complaint, filed by the complainant, does not disclose that the accused made any imputation against her, individually or in the name of her family. Of course, she lodged a complaint with the authority (controlling authority) alleging sexual harassment, in the work place, against Mr. Mukesh Agarwal, IGP, who happens to be the husband of the complainant. Undisputedly, the said complaint has been filed by the accused, in exercise of her right, granted by the law, laid down by the Supreme Court in the case of Vishaka (supra). Therefore, her said action is found to be protected by the law and it is for the authority concerned to decide whether there was any sexual harassment as alleged. Undoubtedly, the complaint regarding sexual harassment will contain scandalous imputations relating to the conduct and character of the person against whom such complaint is brought. For such lawful exercise of a legal right, no criminal proceeding can be permitted. Because, continuance of any criminal proceeding against the victim, during pendency of her complaint, will defeat the very object of granting such right as indicated in the case of Vishaka (supra).
56. As discussed above, in the absence of any imputation against the complainant, she cannot be held to be an aggrieved person, within the meaning of Section 199 Cr.P.C. That apart, the complaint, filed by the private respondent, does not indicate that the accused had made any imputations against her warranting a proceeding for offence u/s 500 IPC. It appears that the complaint has been filed for wreaking vengeance on the accused and with a view to spite her due to the imputations, made by her, against the husband of the complainant Therefore, in view of the principles, laid down in the case of Bhajanlal (supra), the complaint filed by the private respondent, in respect of the imputations made against her husband, is not maintainable. The principle that ''what cannot be done directly cannot be done indirectly'' will apply in the present case, inasmuch as the private respondent''s husband, against whom allegation of sexual harassment has been made, can''t file defamation case against the victim. Therefore, his wife also cannot bring criminal action for the same. In view of what has been discussed above, in my considered opinion, the continuance of the proceeding will yield no fruit, except causing unnecessary harassment to the accused, because lodging of a complaint, alleging sexual harassment against the husband of the complainant, cannot be a ground to compel the victim to face defamation case, during the pendency of the complaint filed by the alleged victim. Rather, it will amount to abuse of process of Court. Therefore, I find sufficient merit in this criminal petition requiring interference, in exercise of jurisdiction u/s 482 Cr.P.C.
Accordingly, this criminal petition is allowed. The impugned order is set aside and the proceeding in CR Case No. 672c/2012 is quashed.
