Back
2024 Supreme(Bom) 724
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A. S. Gadkari, Neela Gokhale, JJ.
Mr. Rohit Satindra Sharma - Petitioner
Versus
The State Of Maharashtra and ors. – Respondents
Criminal Writ Petition No. 2866 of 2019
Decided On : 21-08-2024
Advocate Appeared:
For the Petitioner: Mr. Hemant Kenjalkar, with Mr. Shubham B. Choudhar with Ms. Nikita J. More
For the Respondent: Smt. Madhavi H. Mhatre, APP
IMPORTANT POINT
The court established that an FIR can be quashed if it does not disclose a prima facie case of an offence, especially when based on consensual relationships and procedural irregularities.
Headnote:
Quash - Criminal Proceedings - IPC Sections 354, 354A, 323, 509; POSH Act Section 19(h) - The court interpreted the IPC sections concerning sexual harassment and assault, alongside the POSH Act's provisions on complaint authority, concluding that the FIR lacked merit due to the consensual nature of the relationship and procedural deficiencies.
Fact of the Case:
The petitioner was accused of sexual harassment by a former colleague, with allegations stemming from a consensual relationship. The complainant filed an FIR after an internal complaint was dismissed by the employer's committee.
Finding of the Court:
The court found that the FIR did not establish any prima facie case of criminal offences, noting the consensual relationship and the complainant's failure to disclose the internal committee's findings.
Issues: Whether the FIR filed by the complainant constituted a valid basis for criminal proceedings given the findings of the internal complaints committee and the nature of the relationship.
Ratio Decidendi: The court held that the FIR was based on allegations that were improbable and lacked the necessary elements to constitute the alleged offences, thus justifying its quashing.
Result: The criminal proceedings against the petitioner were quashed and set aside.
JUDGMENT :
Neela Gokhale, J.
1. Petitioner seeks to quash and set aside criminal proceedings bearing C.C.No.1363/PW/2019 pending before the Metropolitan Magistrate, 12th Court, Bandra arising from C.R.No.19 of 2019 dated 9th January 2019 registered with Bandra Police Station for the offences punishable under Sections 354, 354A, 323 and 509 of the Indian Penal Code, 1860 (‘IPC’).
2. The facts of the case are as under:
2.1) It is the case of the Respondent No.2/First Informant that she was working as a Head Chef in the Tata Global Beverages Ltd., Bangalore (‘TGBL’). Prior to her employment with the TGBL, she was working as a head Chef in a company called ‘Hola Chef’. She was acquainted with the Petitioner as he was employed as Head of Supply in ‘Hola Chef’. The Petitioner left ‘Hola Chef’ in December, 2016 and took up employment in the TGBL, as Head of Operations. According to the Respondent No.2, since they were close, there used to be frequent interaction between the families of the Petitioner and the Respondent No.2.
2.2) It is further case of the Respondent No.2 that she left ‘Hola Chef’ in February 2017 and at the request of the Petitioner, joined TGBL. Her position was that of a contractor in TGBL and her reporting officer was the Petitioner.
2.3) The TGBL opened its first restaurant in Bangalore. There were parties and functions organized to celebrate the opening of the said restaurant. At that time, the Petitioner told the Respondent No.2 that ‘You are so hot, I want to sleep with you.’ The Respondent No.2 did not respond to him and went away.
2.4) On 4th December 2018 at 11.00 am. the Respondent No.2 received a call from the Petitioner’s mobile phone and he called the Petitioner for a meeting to discuss the photo shoot and presentation for launching of the recipes of the TGBL. According to the Respondent No.2, she avoided going for the meeting on the pretext that her daughter Ria needed her, however, at the insistence of the Petitioner, she agreed. She received a whatsApp message from the Petitioner to pick up her from 'Lucky' restaurant and she agreed. She went to the restaurant at 3.30 pm. in the afternoon. The Petitioner was standing near the Lucky Hotel and sat in her car. The Petitioner said to her, ‘Your mole is attractive, spend some time with me at a hotel’. So saying he touched her body. The Respondent No.2 resisted and there was a skirmish in the car upon which the Petitioner said to the Respondent No.2 that ‘What do you think of yourself’ to which she responded by saying that she does not want to work with him. She asked the Petitioner to get out of the car and she went home. Upon returning home, she shared the incident with her husband and on his suggestion, she filed the subject FIR.
3. By an Order dated 5th July 2023, the Petition was admitted. Despite service, none appeared for the Respondent No.2.
4. Mr. Hemant Kenjalkar, learned Counsel appeared for the Petitioner and Ms. Madhavi Mhatre, learned APP represented the State.
4.1) Heard both the counsels and perused the documents with their assistance.
5. Mr. Kenjalkar submitted that the relationship between the parties was purely consensual and no offence is made out. The FIR was filed only with malafide intention and ulterior motive to harass the Petitioner. He submitted that the Respondent No.2 made a complaint to the Internal Complaints Committee (‘ICC’) of the TGBL constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘POSH’), which was dismissed after adducing evidence and examining witnesses. This itself indicates that the allegations are incorrect. Mr. Kenjalkar further contends that the FIR ought to have been lodged by the TGBL, i.e, the employer who is vested with the authority to make such complaint, under the provisions of Section 19(h) of the POSH Act. He submitted that, it is only the employer who has such authority and the Respondent No.2 is not competent to lodge the FIR. Furthermore, the Resp
