JOSHI GANGADHAR DEVNARAYAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the petitioner herein ­ original accused to quash and set aside the impugned FIR registered with Ahmedabad Railway Police Station vide C.R. No.I156/2004 dated 07.04.2006 for the offence punishable under Section 354 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and consequently to quash and set aside the order dated 05.03.2005 passed by the learned Metropolitan Magistrate Court No.5, Ahmedabad rejecting the 'B' summary report filed by the investigating agency and taking cognizance under Section 190 of the CrPC and ordering issuance of process against petitioner ­ accused for the offence under Section 354 of the IPC.

(2.) THAT the petitioner was serving as Class II Gazetted Officer with Western Railway. That respondent No.2 ­ original complainant was also a railway employee and at the relevant point of time working under the petitioner. That the petitioner as well as the complainant were in the same office. That respondent No.2 herein ­ original complainant lodged the FIR being C.R. No.I 156/2004 with Ahmedabad Railway Police Station against the petitioner herein for the offence punishable under Section 354 of the IPC for the incident alleged to have happened on 18.03.2004 alleging outraging modesty of a woman. That it was alleged that at the relevant time she was working under the petitioner and there was lot of harassment at the end of the petitioner. It was further alleged by the complainant that behaviour of the petitioner was very indecent and not befitting the officer of the rank of AME/ADI. It is further alleged that the petitioner used to comment with regard to her clothes and her physical appearance. Therefore, it is alleged that the conduct of the petitioner was more in the nature of sexual harassment by a superior on a person working under the superior. That the Investigating Officer conducted the investigation, recorded the statements of coemployees and considering the same, the IO found that no case is made out against the petitioner and the complaint was filed with a malafide intention and only with a view to harass the petitioner and as such no incident has happened as alleged to have happened on 18.03.2004 as mentioned in the FIR and therefore, IO submitted the 'B' summary report. That the said report was opposed by the complainant by submitting the protest application and thereafter the learned Magistrate has rejected the 'B' summary report submitted by the Investigating Officer and has directed to issue process against the petitioner for offence punishable under Section 354 of the IPC. Hence, the petitioner herein ­ original accused has preferred the present Special Criminal Application under Article 226/227 of the Constitution of India read with Section 482 of the CrPC to quash and set aside the impugned criminal proceedings and the order passed by the learned Magistrate directing to issue process against the petitioner for the offence punishable under Section 354 of the IPC.

(3.) PETITION is opposed by Shri S.V Raju, learned Senior . Advocate appearing on behalf of respondent No.2 ­ original complainant. It is submitted that as the learned Magistrate after considering the material on record has rejected the 'B' summary submitted by the police and has directed to issue process against the petitioner for the offence punishable under Section 354 of the IPC, the same is not required to be interfered by this Court in exercise of powers under Section 482 of the CrPC. It is submitted that while rejecting the 'B' summary, the learned Magistrate has considered not only the affidavit/statement of the original complainant Kavitaben but has also considered other statements of the coemployees mainly one Shri Arvind Parshottambhai Mehta and one Saiyed Mazharali Asgarali. It is submitted that when considering the aforesaid statements and material on record and having found prima facie case of sexual harassment by the petitioner when the learned Magistrate has directed to issue process against the petitioner for the offence punishable under Section 354 of the IPC, the same is not required to be interfered by this Court in exercise of powers under Section 482 of the CrPC. It is submitted that at this stage the full fledged trial is not required to be conducted and what is required to be considered is the prima facie case for which the petitioner is to be prosecuted or not. Making above submissions, it is requested to dismiss the present petition.