Case: Shripad Kulkarni & Others Vs. State of Goa, Through The Police Inspector & Another

R.S. Dalvi, J.1. Rule. Made returnable forthwith.2. This Writ Petition is filed by the Management Personnel of a limited Company against the State and their Employees. Respondent no. 2 served as Manager, Human Resources. She claimed leave on personal grounds. She was not allowed. She was called to office on the date of the incident. She claimed that she was handed over a resignation letter to sign which she was coerced to do. She has lodged a criminal complaint on 23.5.2013 against the petitioners herein for the offences under Sections 342 and 506 read with Section 34 of the Indian Penal Code.3. It is the case of the petitioners that no cognizable offence is disclosed in the complaint. It is her case that it is clearly and apparently disclosed. Upon that complaint the FIR has been registered and investigation has proceeded. The investigation is essentially in terms of the statements of several persons of the company as witnesses. About eight such statements are recorded, seven of which are identical. One other statement is in more detail and shows what transpired after the complaint. The spot panchanama has been made and the chargesheet has been filed pending the petition.4. The Petitioners contend that in view of the fact that her initial complaint does not at all disclose any cognizable offence the FIR and the consequent chargesheet must be quashed and no criminal trial shall proceed as that would amount to abuse of Court process. In her additional affidavit filed on 12.12.2013. Respondent no. 2 contends that in fact she has given a further statement. Her husband has also given a further statement, none of which have been shown in the chargesheet. She claims that other documents and forensic evidence are not collected as was required and that they do not form part of the chargesheet. This would have to be seen in the light of whether her initial complaint itself discloses cognizable offence of which the State could take cognizance to proceed upon.5. It would therefore, be material to first analyse the initial complaint. The complaint dated 5.1.2013 is hand written and signed by the complainant which is submitted to the Police Inspector, Mapusa Police Station, whose acknowledgment has been obtained by the complainant. The complaint shows what transpired on the date of the incident being 4.1.2013. The relevant part reads thus:-......... I was picked up from my residence by the company vehicle and taken to my office where I was wrongfully confined to a room in the presence of Mr. Shripad Kulkarni (Plant Manager), Mr. Sanjay Dabir (Sr. Director India Engineering) and Ms. Indrani Saha (Director HR) and I was coerced to sign my resignation letter. ...6. The essential charge is that she was wrongfully confined. The persons who wrongfully confined her are not mentioned. What she has mentioned is the names of three persons in whose presence she was wrongfully confined. Their presence did not make them the perpetrators of the crime. Their presence would make them eye witnesses to the crime. Crime was of wrongful restraint and hence it will have to be seen from the remainder of her statement whether the said case of wrongful confinement is made out by her.7. Wrongful confinement is defined under Section 340 of I.P.C. which reads thus:-Wrongful Confinement. Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said "wrongfully to confine" that person.8. It is, therefore, seen that a person who wrongfully restrained any person so as to prevent that person from going beyond any limit would commit the offence of wrongful confinement of such other person. It will have to be seen whether in the complaint any person who wrongfully restrained the complainant in the room where she was taken is shown. The aforesaid part of the complaint does not show any wrongful restraint by any person. The two important ingredients for taking cognizance of offence of wrongful confinement are therefore:-(i) Restraint(ii) the person who restrains.9. The aforesaid part of the complaint does not show any person who wrongfully restrained the complainant inasmuch as it does not show any person who wrongfully confined the complainant.10. The remainder of the complaint including the last sentence hereinabove cited shows the fact of signing the resignation letter which may be without any reason or justification which shows that it was signed under duress and she was verbally threatened and that she signed because she was wrongfully confined to a room and under mental pressure. It also shows that the resignation letter was previously prepared. It shows her state of mind at the time of the incident. It shows that she was depressed, shock, humiliated and cheated and she left for home feeling suicidal. The remaining part of the complaint does not disclose any offence under the I.P.C.11. If what she stated was true, it would make out a case of coercion. The contract to resign would become voidable at her option. She would be entitled to sue in civil Court for declaration and other reliefs upon making out a case of coercion. However, there would be no penal offence which can be cognizable which is disclosed.12. It is argued on her behalf that the expression wrongfully confined itself makes out the cognizable offence of wrongful confinement. Merely showing title of the offence would not constitute a cognizable offence. A citizen who uses criminal phraseology may do so under the justified but erroneous impression. Such expression would not itself make the offence cognizable.13. Counsel on behalf of the respondent no. 2 gave an illustration of the offence of rape. He argued that is the fact by a mere use of such expression is stated, a cognizable offence under Section 376 would be disclosed and an FIR would have to be registered. Similarly he argued that the expression that the complainant was wrongfully confined would will seal the fate upon the aspect of cognizability. The illustration is misconceived, the title of the offence having been stated by the complainant notwithstanding.14. It is seen that the despite the words wrongly confined, 342 definition of the concept of wrongful confinement under Section 340 is not met because though the complainant stated that she was wrongfully confined her complaint, it does not show any person who restrained her in the room that she was. All that it shows is her allegation of wrongful confinement in the presence of the petitioners. Upon such a solitary sentence in her otherwise detailed complaint setting out a case of coercion of signing a resignation letter, no cognizable offence can be stated to have been disclosed.15. Even if the police officer registered the offence and took down the statement, the Court will have to see whether in the initial complaint itself as also from those statements at least some offence can be disclosed which could be prosecuted.16. It may be mentioned that there are number of statements recorded of various persons serving in the company where the complainant served who had come to their office who saw the complainant going in conference room and going out then but did not know what transpired therein.17. It may be also be mentioned that the statements of two security guards is same but only with regard to the entrance and exist at the entrance gate of the company. The statement of one other witness Desh Bhandhari shows the state of mind of the complainant after the alleged incident. He is the colleague who gave her lift, from the company office to Margao. He has stated that three petitioners and seven other managerial persons who were present along with him in the conference hall when the alleged incident transpired. He has detailed the proceedings that transpired in the hall including the tendering of the resignation letter, announcement of the resignation and thanking the departmental heads by the complainant. Thereafter he gave a complainant a lift in the car until she met her husband on the way.18. The spot panchanama dated 6.1.2013 shows the position of the conference hall covered with glass partition. Of course, it is not shown whether it was transparent, translucent or opaque glass.19. The chargesheet containing the above case also does not take the case of the complainant any further. In view of the fact that her initial complaint itself does not disclose any cognizable offence her latter statement, if any, would be immaterial to consider.20. It is contended on her behalf that a mobile phone upon which she contacted her husband and hard disk of the computer on which the resignation letter was printed would have shown her state of mind and the factum of the preparation of the resignation letter respectively. If she was wrongfully restrained and if the petitioner committed any offences those aspects would have been material to consider. If the offence of wrongful restraint is not disclosed and only a case of coercion in signing the resignation letter is disclosed, that evidence may not be required in criminal prosecution. It may certainly of use in civil action if the complainant sues. Consequently what is stated by the complainant in her further affidavit would not be material to consider while seeing whether or not the complaint and consequently the chargesheet is required to be quashed.21. The argument on behalf of the complainant that chargesheet discloses the bad investigation would also not be sufficient to show any offence under the I.P.C. Counsel on behalf of the complainant drew our attention to the judgment of the Apex Court in the case of Abasaheb Yadav Honmane Vs. State of Maharashtra, 2008 ALL MR(Cri) 952 in which parameters for exercising the inherent jurisdiction under Section 482 of the Cr.P.C. have been laid down. It sets our the circumstances under which it has to be exercised and which are enumerated thus:(i) to give effect to an order under the Cr. P.C.(ii) to prevent abuse of the process of court; and(iii) to otherwise secure the ends of justice.22. It would be an abuse of the criminal machinery to prosecute the petitioners for a civil wrong alone made out by the complainant and consequently to secure ends of justice, her complaint would require to be quashed.23. Our attention have been drawn to the judgment of the Supreme Court in the case of Asmathunnisa Vs. State of Andhra Pradesh, (2011) 11 SCC 259 in which the enjoinment for the exercise of inherent powers for quashing criminal proceedings under Section 482 of Cr.P.C. have been laid down in paragraph 13. Three parametres laid down in that judgment runs thus:-(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.24. The above case falls under the second parameter since upon reading the complaint it does not disclose a cognizable offence. Even otherwise, the evidence which has been shown to us also does not prove the case sought to be made out by the complainant. It would be futile to criminally prosecute the complaint of respondent no. 2. She would however be entitled to sue and prove her case in civil Court.

Decision:
1[ds]10. The remainder of the complaint including the last sentence hereinabove cited shows the fact of signing the resignation letter which may be without any reason or justification which shows that it was signed under duress and she was verbally threatened and that she signed because she was wrongfully confined to a room and under mental pressure. It also shows that the resignation letter was previously prepared. It shows her state of mind at the time of the incident. It shows that she was depressed, shock, humiliated and cheated and she left for home feeling suicidal. The remaining part of the complaint does not disclose any offence under the I.P.C.Even if the police officer registered the offence and took down the statement, the Court will have to see whether in the initial complaint itself as also from those statements at least some offence can be disclosed which could be prosecuted.16. It may be mentioned that there are number of statements recorded of various persons serving in the company where the complainant served who had come to their office who saw the complainant going in conference room and going out then but did not know what transpired therein.The argument on behalf of the complainant that chargesheet discloses the bad investigation would also not be sufficient to show any offence under the I.P.C. Counsel on behalf of the complainant drew our attention to the judgment of the Apex Court in the case of Abasaheb Yadav Honmane Vs. State of Maharashtra, 2008 ALL MR(Cri) 952 in which parameters for exercising the inherent jurisdiction under Section 482 of the Cr.P.C. have been laid down. It sets our the circumstances under which it has to be exercised and which are enumerated thus:(i) to give effect to an order under the Cr. P.C.(ii) to prevent abuse of the process of court; and(iii) to otherwise secure the ends of justice.22. It would be an abuse of the criminal machinery to prosecute the petitioners for a civil wrong alone made out by the complainant and consequently to secure ends of justice, her complaint would require to be quashed.23. Our attention have been drawn to the judgment of the Supreme Court in the case of Asmathunnisa Vs. State of Andhra Pradesh, (2011) 11 SCC 259   in which the enjoinment for the exercise of inherent powers for quashing criminal proceedings under Section 482 of Cr.P.C. have been laid down in paragraph 13. Three parametres laid down in that judgment runswhere it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.24. The above case falls under the second parameter since upon reading the complaint it does not disclose a cognizable offence. Even otherwise, the evidence which has been shown to us also does not prove the case sought to be made out by the complainant. It would be futile to criminally prosecute the complaint of respondent no. 2. She would however be entitled to sue and prove her case in civil Court.